Muscat Developments Pty Ltd v Wollondilly Shire Council

The fill is a relevant consideration

1. The task of the Court in this matter is to determine applications for development consent, in accordance with s 4.16 of the EPA Act, and an application for a building information certificate, pursuant to s 8.25 of the EPA Act.
2. In undertaking this task, I am required to evaluate the development the subject of the development applications, and to apply the law and facts as they exist at the time of hearing and determination of the appeal: Sofi v Wollondilly Shire Council [1975] 2 NSWLR 614 at 622; Nalor Pty Ltd v Bankstown City Council [1980] 2 NSWLR 630 at 634-635
3. It is an agreed fact that fill is evident on the site at present, in respect of which there are separate Class 4 proceedings on foot. Whether or not a breach is found, and whether or not orders are made in those proceedings is not a relevant consideration in this matter.
4. Accordingly, it is appropriate for the Court to close its eyes, in this matter, to assertions of past unlawfulness. However as shown by Preston CJ in Jonah that does not mean that past use - without any consideration of its unlawfulness - cannot ever be relevant. Past use may be of relevance where it is for proper planning reasons, not because the past use, or works, happened to be unlawful. The unlawfulness of the past use, or works, is not relevant (Jonah, at [37]).
5. I accept the Applicant's submission that the Court is unable to erase the fill from the circumstances of this case where the extent of fill deposited on the site is not documented and so its footprint, and therefore its likely impacts cannot be readily understood. This is because the Court cannot undertake the evaluation said by the Respondent to be required of it, on the mere assumption of a circumstance that is not part of the facts that comprise the proceedings before it.
6. However, in this case, the parties agree that fill has been imported on to the site. The evidence of the run sheets annexed to the Martens Letter of 26 February, and relied upon by the Applicant, indicate a timeframe between 2019-2020 in which fill was delivered to the site.
7. Furthermore, the Applicant seemingly acknowledges the same, as I understand it, by documenting the footprint of fill, presumably deposited in 2019-2020, in drawing PS05-ZZ01 Rev B accompanying the Class 1 Application in the Internal Roads Appeal (IR-A), prepared by Martens and re-produced below, which identifies the northern and southern loop roads in hatching denoted as the 'Extent of works already completed'.
8. Accordingly, it appears to be a fact in this case is that fill, documented at [101] on land the subject of the Internal Roads Appeal, imposes itself on areas identified at [54] as EEC's.
9. The lawfulness or otherwise of the deposition of this fill is the subject of separate proceedings. However, the impact of the fill documented at [101] is relevant to these proceedings, in the event the Court considers the Internal Roads Appeal, to which the drawing applies.
10. This is the answer to the Respondent's argument that the Applicant seeks to gain advantage from the unlawful works, as was found to be the case in Ralph Lauren.
11. In answer to the Respondent's submission that the expert evidence relied on by the Applicant is founded on the incorrect baseline, and should assess the environmental impact differently to that undertaken, this can only be considered by reference to the evidence itself, which I now propose to do.
12. Two issues are raised in respect of the fill,

• Stability of the fill; and
• Remediation of the land.

Stability of the fill

1. Mr Ben Gibbons and Dr Daniel Martens conferred in the preparation of the joint expert reports in civil engineering at Exhibits 7, BIC-2 and a supplementary joint expert report at Exhibit 11.
2. Mr Gibbons is concerned that the Geotechnical report marked Exhibit IR-F identifies there are areas of uncontrolled fill on the site that are poorly compacted and so will require the removal and stockpiling of soil material on the site to achieve the final design levels.
3. Without a staging plan, Mr Gibbons cannot be satisfied that the stockpiling of soil will be accommodated on site without impacting native vegetation, and without a Construction Management Plan (CMP), Mr Gibbons lacks evidence as to the method to be adopted by the Applicant in managing the removal, treatment and return of fill on the site.
4. The extent of works required to ensure stability and integrity of the subgrade surface lying below the cut and fill necessary to achieve the design levels shown in the various appeals are uncertain without a Construction Management Plan (CMP) detailing the same.
5. Dr Martens considers it reasonable that concerns remain, as it is common for the extent of compaction to be unknown until works commence and a supervising geotechnical engineer is satisfied.
6. Annexure C of the Geotechnical Investigation Report (Ex IR-F) identifies a series of Dynamic Cone Penetrometer (DCP) tests that demonstrate, according to Dr Martens, stability and firmness in the fill material as long as the unit of measure is rated '5' or above.
7. Where the fill fails to achieve a unit of measure that is rated '5' or above, I understand the bearing capacity of the underlying fill is considered 'soft' or 'poor', and certain procedures would apply.
8. In broad terms, I understand these procedures may include rolling, compacting, further testing and, if required, reinforcement in the form of subsurface geotextile fabric or the like.
9. In Dr Martens' experience, these matters are appropriately dealt with in conditions of consent requiring finalising prior to the Construction Certificate.
10. That said, the Applicant proposes a condition of consent to encompass those matters agreed between the experts at Issue 2 (a)-(g) (Exhibit 7), and to the satisfaction of the Respondent.

Remediation of the site

1. Mr Jason Clay and Mr Andrew Norris conferred on prior to the hearing and prepared the joint expert report on contamination marked Exhibit 4.
2. Exhibit 4 is supported by 3 volumes, and the experts identify the relevant documents as follows:

• Attachment A - Site Audit Statement, prepared by Mr Rod Harwood of Harwood Environmental Consultants, behind which the Remedial Action Plan prepared by Martens dated July 2021 is to be found.
• Attachment B - Detailed Site Investigation, prepared by Martens dated July 2021.
• Attachment C - Site Audit Report prepared by Harwood Environmental Consultants dated July 2021.
• Attachment D - Statement of compliance for Recovered Glass Sand Supply Arrangements prepared by Mr Luke Krstanovski of VISY dated 3 April 2020.
• Attachment E - Review of Martens Correspondence 20 April 2021, prepared by Mr Clay dated 3 May 2021.

1. The evidence of the experts was focused on three primary areas:

• Whether the site investigation undertaken is sufficient.
• The RGS Stockpile.
• Proposed treatment of asbestos containing material found onsite.

Whether the site investigation is sufficient

1. The Applicant submits that the Detailed Site Investigation identifies six phases of investigation comprising 226 test pits, 52 bore holes and six groundwater monitoring wells, and nowhere in the joint expert report is it suggested that the extent of testing is deficient.
2. Instead, on the basis of the Remediation Action Plan, and Site Audit Report, the Court can be satisfied that the site, while contaminated, will be made suitable, after remediation, for the purpose for which the development is proposed to be carried out in accordance with cl 7 of SEPP 55.
3. In the joint expert report, Mr Clay acknowledges that the Applicant has engaged a site auditor who has approved the Remedial Action Plan, but holds that the Site Audit Statement is deficient on a number of grounds, including: 1. The auditor has failed to report to the EPA the importation of material that does not meet the definition of Virgin Excavated Natural Material (VENM). 2. The auditor has neglected to include conditions required by the EPA on Section B Site Audit Statements for the ongoing monitoring of the remediation works, and the issuance of an occupation certificate being contingent upon a suitable Section A Site Audit Statement being provided.

The RGS stockpile

1. Within the area of the site the subject of the RU2 Roads Appeal is a mound of Recovered Glass Sand (RGS) that is referred to as the 'RGS Stockpile', and which Mr Norris estimates to comprise 1,600 tonnes of material.
2. The experts agree that the RGS was most likely brought on to the site for use in road construction on the site, which is a purpose for which RGS may be applied to land under the Resource Recovery Order (RRO) in accordance with Section 1.1 of the NSW EPA Recovered Glass Sand Exemption 2014 (the Exemption).
3. Emanating from the RGS stockpile is leachate that was observed at the onsite view, appears present in the drone footage, and is a source of disagreement between the contamination experts in their written and oral evidence.
4. According to Mr Norris, any material that is stockpiled for a period of time, and is exposed to weather, is likely to result in a mobilising of its constituents, as is the case here.
5. Mr Norris is also of the opinion that the ammonia found in the leachate is unsurprising given that one source of the RGS is from household 'yellow bin' waste that may have residual food material and liquids that will be mobilised through the action of rain and overland flow.
6. This is more likely, in Mr Norris' view, than the hypothesis advanced by Mr Clay in his letter dated 3 May 2021 (Attachment E) that the leachate may be as a result of chemical waste co-disposal (p 4).
7. It is Mr Clay's strong view that the certification provided by the supplier of the RGS (Attachment D) is generic, batch-generated, is not particular to the material in this stockpile, and in any event the RRO is not a license to pollute.
8. Furthermore, the terms of the RRO do not exempt a site owner from enforcement action where pollution results, and Section 4.3.7 of the NSW Environmental Protection Authority Guidelines for the NSW Site Auditor Scheme (2017) (NSW EPA Guidelines) requires a site auditor to notify the NSW EPA in circumstances where the auditor suspects that waste received on a site does not meet the conditions of an order.
9. The experts agree that a contributing factor that has given rise to the leachate is that the RGS stockpile has not been used for the purpose for which it was procured in the first place.
10. Instead of being used in road construction, the RGS material has been stockpiled on the site due, in part, to a Council Prevention Notice (Exhibit Supp-A, tab B) and undertakings made by the Applicant in separate Court proceedings.
11. The experts agree that the RGS is capable of being used in road construction if mixed with other materials prior to use for such a purpose.
12. Mr Norris supports advice contained in the site audit statement for the RGS to be isolated and placed on a HDPE liner prior to its use in road construction, which is in similar terms to action proposed by Martens to construct an earth mound, or swale, upslope of the RGS stockpile to divert overland flow, and a sump on the downslope to collect leachate, and to cover the RGS stockpile.
13. While Mr Clay's view in Attachment E is that the RGS stockpile may be contaminated and so be outside the conditions of the Exemption, he supports the proposed action above.

Proposed treatment of asbestos containing material found onsite

1. According to the Detailed Site Investigation, laboratory analysis undertaken by Envirolab Pty Ltd confirms asbestos is present in fill on the site.
2. The asbestos is in the form of Asbestos Containing Material (ACM), and Asbestos Fines/Fibrous Asbestos (AF/FA).
3. Following collection of 178 samples on the site, testing confirmed the presence of ACM on the site exceeding the asbestos health screening level (Table 8), and of AF/FA exceeding the reporting limit (Table 16).
4. The location of asbestos on the site is in the area subject to the E4 Road and RU2 Road Appeals, and the Equestrian Centre Appeal as shown on Map 02 'Remediation Areas and Proposed Cap Extent', annexed to the Remedial Action Plan, and re-produced below:
5. I record here that the Statement of Environmental Effects prepared by Martens dated August 2020 in support of the E4 Road application (Exhibit E4-A) states the following: "The works area has no known history of contamination due to previous use. The imported material has been classified as VENM [virgin excavated natural material] and therefore is uncontaminated."
6. The Statement of Environmental Effects prepared by Martens dated September 2020 in support of the RU2 Road application (Exhibit RU2-A) is in similar terms: "The works area has no known history of contamination due to previous use. Any imported material has been certified by suppliers as uncontaminated."
7. I record here that the thirteen sites from which fill is imported are set out in Attachment A of the Martens Letter of 26 February (Exhibit 4, Tab F). In each case, the fill is classified as VENM.
8. The Detailed Site Investigation records the apparent departure from the classification of fill as VENM, to contaminated fill in certain investigation areas (IAs) as follows (p13): "Initial works identified material in the Equestrian Centre IA and RU2 Road and E4 Road IAs which was inconsistent with the imported material documentation (i.e.VENM) due to the observation of anthropogenic inclusions such as building waste. Cement fibre sheeting fragments were also observed at the surface and as part of inclusion in the fill material at the Equestrian Centre IA and RU2 and E4 Road IAs."
9. Section 4.2 of the Remedial Action Plan (RAP) identifies the extent of remediation required in the investigation areas in the following terms: "Asbestos impacted fill material requiring remediation was identified in two areas, as shown on Map 02 (Attachment A). The approximate extent of filling has been mapped based on onsite test pit investigations, site walkovers and aerial photograph interpretation. Some areas where imported fill material was identified are outside of those Site areas to be filled as party of the proposed development. Two areas requiring remediation have been identified at the site: Remediation Area 1 - A section of the RU2 Road and E4 Road IA (approximately 0.6ha), towards the north of the IA, where imported fill material has been placed for the construction of an access road. Remediation Area 2 - Fill material (approximately 5.8 ha) placed in the Equestrian Centre IA."
10. The RAP proposes to excavate approximately 1,200m3 of material in Remediation Area 1, and to cap the material in Remediation Area 2 (p 24).
11. The RAP also proposes a Licensed Asbestos Removal Contractor, a suitably qualified environmental consultant, and a suitably licensed earthworks contractor be engaged (p 22).
12. The Applicant proposes to prepare a Long Term Environmental Management Plan detailing:

• The presence and location of capped ACM impacted material as described in the DSI.
• Maintenance requirement for the constructed capping material.
• Procedures for any future required works beneath the capping layer (e.g. future services installation).

1. Mr Clay considers the proposed remediation of the asbestos to necessitate an Environmental Management Plan (EMP), as identified by the site auditor in Attachment A, while it is Mr Norris' view that an EMP is commonly provided at the Construction Certificate stage.
2. While the experts dispute aspects of the proposed remediation of the site, Mr Norris believes the Court can be satisfied that the site is able to be made suitable for the proposed purpose in accordance with cl 7 of the SEPP 55 and I note here that Mr Clay's written and oral evidence is supportive of the same.

Assessing the likely impacts on biodiversity

1. The Court was assisted by experts in ecology, Mr Michael Sheather-Reid and Mr Kurtis Lindsay who conferred prior to the hearing and prepared the joint expert report in respect of the development appeals, marked Exhibit 10, and in respect of the Building Information Certificate marked Exhibit BIC-4.
2. Exhibit 10 contains two annexures: 1. Appendix A is an assessment of the site under the State Environmental Planning Policy (Koala Habitat Protection) 2020, in respect of which contentions are not pressed, and 2. Appendix B is a Vegetation Management Plan (VMP) prepared by Mr Lindsay, in accordance with the 'Guidelines for Vegetation Management Plans on waterfront land', published by the Department of Primary Industries, Office of Water.
3. It is also relevant to record here that Mr Lindsay prepared BDARs on behalf of the Applicant for:

• Crossing Upgrade Appeal (marked Exhibit CU-D).
• E4 Roads Appeal (marked Exhibit E4-D).
• RU2 Roads Appeal (marked Exhibit RU2-D).
• Internal Roads Appeal (Exhibit IR-D).
• New Crossing Appeal (Exhibit NC-D). In respect of the Equestrian Centre Appeal, Mr Lindsay prepared a Flora and Fauna Assessment (marked Exhibit EQ-M).

1. In simple terms, the Respondent identifies environmental impacts imposed on biodiversity values and identified landscape features of the site arising from: 1. Firstly, unauthorised fill adversely impacting EEC's, and 2. Secondly, in respect of the existing concrete culvert bridge, and the proposed concrete culvert bridge.
2. The BAM requires an assessment of landscape features that Mr Lindsay understood to be an assessment of what was on the site at the time of his site visit in 19 November 2020, which included the unauthorised fill material.
3. In particular, at the time of his visit, the unauthorised fill formed the southern loop road, within the area of the Internal Roads Appeal, which Mr Lindsay considers to be in the location of an existing cattle track visible to him on Nearmap images (Ex 2, tab 14), and supported by information provided to him by the Applicant.
4. Whether or not the Southern loop road is in the same location as a former cattle track, that track would have been at grade and not on fill, according to the Respondent. Instead, the Southern Loop Road is on fill, and in a location where the Cumberland Plain Woodlands (CPW) and River Flat Eucalypt Forest EEC's are located.
5. Furthermore, it is in this location that Mr Sheather-Reid believes the fill imposes edge-effect impacts on the EEC's that should be minimised by the removal of fill beyond the line of the batters, the gradient of batters made steeper than those proposed, and be revegetated.
6. The Applicant has also failed to undertake measures to avoid or minimise impacts on the EECs that would be satisfied by, for example, relying solely on the Northern Loop Road which would obviate the need for the Southern Loop Road. Instead, the Applicant imposes an impact on the site by reliance on both the Northern and Southern loop roads.
7. Mr Lindsay's oral evidence is that he has assessed the site as it was evident to him at the time of the assessment, and on the advice of the design engineers as to the works proposed.
8. Mr Lindsay understands the form of the southern loop road has not changed since November 2020, and considers it reasonable that data collected by him at that time be an appropriate baseline.
9. This 'as-found' condition extends, according to Mr Lindsay, to what is described on p 6 of the joint expert report (Exhibit 10) as the collapse of fill material from batters into vegetation.
10. This fill, according to Mr Sheather-Reid, was observed during an inspection of the site by him in August 2020 during which time Mr Sheather-Reid concluded that it had the following impact on native vegetation in the area of the E4 Road Appeal:

• Unconsolidated fill had been placed to widen the existing track and pushed downslope into native vegetation.
• Significant mobilised sediment migrated into the adjoining creek line.
• Soil slumping to within 1m of the existing channel due to recent placement.
• No attempt at sediment and erosion control had been undertaken.
• Fill had been pushed into vegetation mapped as CPW in the BDAR.

1. By contrast, Mr Lindsay concludes that the collapse is naturally occurring, as is consistent with the behaviour of Wianamatta Shale of the Picton Soil Landscape, and because there is no proof that the collapse of material was deliberate, or resulted in clearing of native vegetation.
2. In preparing the relevant BDAR's for the appeals, Mr Lindsay has considered the impacts of fill proposed by the applications before the Court, but is of the view that he cannot consider historical fill as the extent of fill claimed to be historical is unknown to him.
3. Further, Mr Lindsay has not considered what Mr Sheather-Reid regards as evidence of historical clearing on the site as neither the provisions of the BC Act or the BAM requires assessment of historical clearing in the calculation of biodiversity offset credits.
4. That said, the BDAR prepared by Mr Lindsay repeatedly states that the area adjacent to the 'vehicle track' "is already historically cleared and managed". (Exhibit IR-D, pp60-61, 64-65).
5. The Applicant submits that the only fill proposed in the applications before the Court is limited to toppings intended for the sealing of roads and gravel or the like for the horse arena within the Equestrian Centre.
6. Mr Sheather-Reid's concern at the failure to consider historical clearing in the BDAR, which he estimates to amount to 1.5 ha, is two fold: 1. Firstly, current owners undertook the clearing and it is appropriate for whoever undertook the clearing to be held accountable; and 2. Secondly, if omitted from the assessment, will distort the baseline in the BDAR.
7. Mr Sheather-Reid states in his oral evidence that historical clearing is a ground on which an assessor is granted discretion to select an alternative site when undertaking plot-based surveys.
8. As I understand Mr Sheather-Reid's evidence, the discretion is found in Section 8.6 of the BAM which permits an assessor to identify an alternative location for plot-based surveys in nearby or other vegetation if, for example, the assessor considers recent works have altered the land so that it is not representative of the relevant Plant Community Type (PCT).
9. This discretion should have been, but was not, exercised by Mr Lindsay when undertaking the plot-based survey at Plot 9, indicated in Figure 10 (Exhibit IR-D, p32) and the subject of the disagreement at [162]-[163].
10. The inputs recorded by Mr Lindsay when undertaking the plot-based surveys were described in oral evidence, and appear in BAM VIS (Vegetation Impact Score) Field Survey Forms at Appendix B of the BDAR (Exhibit IR-D).
11. Consistent with the BAM, plots of 20m x 20m were used, although Mr Lindsay also notes that discretion extends to amending the size or geometry of a plot, or to identifying an alternative plot if it is compromised, and where the alternative plot is representative, and the same or greater in richness.
12. It is this discretion to identify alternative locations for plot-based surveys that Mr Sheather-Reid states was not exercised, but believes should have been. Instead, Mr Lindsay's BDAR relies on plot-based surveys taken from areas in the E4 Road Appeal and Internal Roads Appeal that are not representative of the PCT's proposed to be cleared, including Cumberland Plains Woodland and River Flat Eucalypt Forest.

Assessment of the direct and indirect impacts on biodiversity values

1. Section 7.1 of the BAM requires an assessment of the direct and indirect impacts on biodiversity values on native vegetation, threatened species, threatened EEC's and their habitat.
2. In general terms, this requires a proponent to consider how a proposal has, firstly, avoided, and secondly, minimised impacts to a site. Only then is the nature and extent of biodiversity offset credits assessed.
3. Mr Sheather-Reid accepts that the proposal has taken steps to avoid and minimise impacts in the following ways: 1. That reuse of the existing culvert crossing, the subject of the Crossing Upgrade Appeal and BIC Appeal, avoids impacts that are otherwise proposed by works associated with the New Crossing Appeal. 2. Roads that are the subject of the Internal Roads Appeal minimise impact by being located within areas of existing clearing.
4. However, impacts are not avoided or minimised because: 1. In respect of the Crossing Upgrade Appeal, the number of trees proposed to be removed is unacceptable; 2. Existing batters associated with the Internal Roads, RU2 Road and E4 Road impose the impact described at [157]; 3. The toilet and wash bay the subject of the Internal Roads and BIC Appeal are the source of sediment and pollutants such as hydrocarbons that impact remnant EEC; 4. Instead of relying upon the Northern Loop Road for access through the site, the Applicant seeks consent for works associated with the Southern Loop Road as well, effectively doubling the impact instead of minimising it; 5. Civil engineering drawings provide insufficient detail such as gradient, compaction, and precise extent of each condition.
5. The Applicant seeks to retire biodiversity offset credits arising from the residual impacts of the appeals the subject of these proceedings.
6. Mr Lindsay describes the method adopted when calculating biodiversity offset credits in the preparation of the BDAR as an exercise in overlaying a polygon representing the development impact boundaries on the mapping of native vegetation.
7. The polygon at Figure 10, Exhibit IR-D, was generated by Martens to determine the maximum limit of disturbance on native vegetation by direct or indirect means.
8. Section 6 of the BDARs sets out the ways in which Mr Lindsay considers the requirements to 'avoid' and 'minimise'. Direct impacts that have been avoided or minimised are set out at Section 6.1.1 of the BDAR, and may be summarised as follows:

• The proposal is located in areas where there are no biodiversity values, or where native vegetation or threatened species habitat is in the poorest condition, and
• By preferencing areas that avoid habitat for species with a high biodiversity risk weighting or in areas of EEC or CEEC, and by locating the project to enable connectivity-enabling movement of species and genetic material between areas.

1. Section 6.1.2 of the BDAR states there are no alternative options as all alternatives require clearing of native vegetation. However, in his oral evidence, Mr Lindsay cites two examples of advice from him to the project team that avoided impacts. By this, I understand that Mr Lindsay considers alternative options to encompass those alternatives not furthered on the basis of his advice.
2. The first alternative Mr Lindsay advised against so as to avoid impacts is a road originally proposed to connect the southern loop road to the equestrian centre in the vicinity of an existing dam, and in an area of EEC.
3. The second alternative is advice to preference the downward slope of the land to the west of the RU2 Road where road widening works are proposed, and where non-native weed species are evident. This avoids a mature eucalypt on the eastern side of the RU2 Road.

Assessment of Aquatic Ecology impacts/Water Protection

1. Racecourse Creek is a "permanent flowing creek that drains water from the Razorback ridge and surrounds. The two tributaries that the existing access track crosses feed into Racecourse Creek. The majority of the Western Sydney Dry Rainforest in this locality is centred on these tributaries." (Ex IR-D, p73).
2. Racecourse Creek is identified in Figure 6 of the BDAR as a Fourth order watercourse. The two tributaries referred to above are identified as First, and Second order watercourses (Ex IRD-D, p10).
3. Mr Lindsay states that "the proposed development may impact upon Racecourse Creek which is mapped 'Key Fish Habitat' and provides potential habitat for threatened fish as listed under the NSW Fisheries Management Act 1994" (Exhibit IR-D, p79, Figure 15 and also in Figure 13 in Exhibit CU-D, and Exhibit NC-D).
4. The experts disagree on the extent of assessment required of aquatic ecology when considering biodiversity values on the site, and particularly to Racecourse Creek.
5. According to Mr Sheather-Reid, the BDARs prepared by Mr Lindsay do not adequately address impacts of the proposed development on aquatic ecology, and an Aquatic Impact Assessment Report is necessary to develop measures in respect of the following:

• Sedimentation and deposition of silt in the watercourse;
• Measures to remove silt if they are mobilised into the creek;
• Provide for revegetated buffers to maximise filtration of surface runoff not the creek;
• Effective design of scour protection works to ensure road drainage waters are delivered in a filtered condition on to a stabilised channel;
• Water quality monitoring inclusive of turbidity and nutrients during construction and post construction for a minimum of 3 years post issuance of construction certificate, and
• Compliance and auditing.

1. Mr Lindsay considers the above to be more appropriately the subject of a Construction Environmental Management Plan, which is proposed in Table 26 of the BDAR (Ex IR-D) and the Applicant submits that the Respondent's pleadings are absent a contention as to insufficient information.
2. I note here that Exhibit NC-2, containing Contention 12, particular (k) was filed with the Court 13 July 2021. Contention 12 is in respect of cl 7.3 Water Protection. Particular (k) is in the following terms: "The BDAR requires amendment to provide a detailed assessment of impacts during and subsequent to proposed works to the condition of the waterway (including aquatic biodiversity) within waterways."
3. I note that an earlier Statement of Facts and Contentions, not tendered in evidence but filed with the Court by the Respondent on 12 November 2020, contained at Contention 5, particular (a) in the following terms: "Contention 5 Impacts to biodiversity The DA should be refused as an appropriate assessment has not been carried out as to the impacts to biodiversity from the DA. Particulars (a) The SEE does not contain any assessment of potential impacts of the proposal during construction and operation on aquatic biodiversity within waterways. This assessment is required to enable Council to adequately carry out its responsibilities under s 4.15 of the EPA Act."
4. Mr Sheather-Reid acknowledges that the BAM does not specifically require assessment of Aquatic ecology, but those matters set out at Section 8.2 of the BAM should be read inclusively and the BDAR is deficient without an assessment of aquatic ecology.
5. Mr Lindsay acknowledges a direction to address matters set out in Exhibit NC-2, inclusive of Contention 12 in respect of Water Protection and in respect of particular (k) which states that "the BDAR requires amendment to provide a detailed assessment of impacts during and subsequent to proposed works to the condition of the waterway (including aquatic biodiversity) within waterways."
6. According to Mr Lindsay, an Aquatic Impact Assessment Report is properly the domain of the Fisheries Management Act 1994, is not required by the BAM and so has not been undertaken. However, an assessment of the ecology that is both aquatic and terrestrial has been assessed, evident in action to be taken if de-watering of waterbodies threatens turtles, fish, eels and the like (Table 25, p72 of Exhibit IR-D, and in Table 26, p 76).
7. While the Court's attention was not drawn to it, the de-watering of waterbodies is also addressed in the BDAR prepared in support of the New Crossing Appeal at pp55-56 and p59 (Exhibit NC-D).
8. To understand the impacts likely to arise in the Racecourse Creek environs, it is necessary to now consider the appeals in respect of access from Remembrance Driveway across Racecourse Creek.

Crossing Upgrade Appeal

1. As stated earlier, there are three appeals relevant to the means by which the Applicant seeks consent for structures spanning Racecourse Creek. The Crossing Upgrade Appeal, and BIC Appeal seek consent for a culvert bridge that is largely consistent with that which is there, and the New Crossing Appeal which seeks consent for a new culvert bridge structure located to the east of the current location.
2. In broad terms, the ecology experts agree that the use and upgrade of the existing culvert bridge results in a lesser environmental impact than from the construction of a new bridge crossing.
3. The BDAR prepared in support of the Crossing Upgrade Appeal identifies an area of 0.6ha of native vegetation to be removed (CU-D, p49), whereas the removal of 0.17ha is proposed as a result of the development in the New Crossing Appeal (NC-D, p51).
4. The BDAR prepared by Mr Lindsay in support of the New Crossing Appeal states at p55 of Exhibit CU-D: "The most optimal environmental outcome would be for the applicant to be granted permission to continue utilising the existing driveway and culverts over Racecourse Creek…"
5. I note that virtually identical language appears on p57 of the BDAR prepared in support of the Crossing Upgrade Appeal (Exhibit NC-D).
6. This agreement is qualified in Mr Sheather-Reid's evidence insofar as he supports the relocation or replacement of the existing culvert bridge by a spanned bridge design that would allow the instream ecology and stream flows to continue to naturally function without the physical constraint of the current culverts.
7. By this, I understand Mr Sheather-Reid's evidence to be that as the existing culvert bridge is constructed from a number of concrete culverts, he considers the potential consequences of blocked culverts to be a risk to the aquatic ecology that could be addressed by the use of a single span bridge that does not impose a structure in Racecourse Creek that would impair flow.
8. Mr Lindsay's assessment of the Crossing Upgrade is founded on the conditions found on site today, which is a double stack culvert arrangement visible at the onsite view.
9. The Respondent submits that the proper assessment is to consider the culvert crossing as it was before the second tier of concrete culverts were added to form the double-stacked arrangement evident today, and before unauthorised fill was imported to the riparian zone.
10. As stated at [9], the assessment of prescribed impacts at Section 5.2.2 of the BDAR prepared for the Crossing Upgrade is identical to that contained in Section 5.2.2. of the BDAR prepared for the New Crossing Appeal.
11. The double stack culvert arrangement was a matter considered by the structural engineering experts in joint expert reports marked Exhibits 8 and 12, and Exhibit BIC-2.
12. The structural experts were not called to give oral evidence. However, of particular relevance to the Court's consideration of the Crossing Upgrade Appeal and BIC Appeal is whether there is adequate structural integrity in the existing double stacked culvert and existing wing walls to support the mass and loading caused by the additional tier of culverts that were added sometime in the past to the two original culverts that comprise the lower tier.
13. While the format of Exhibit 12 is an obstacle to clear reading, the agreed evidence of the structural engineering experts may be summarised as follows: 1. Movement has occurred between the culvert wing wall and culvert units. 2. There is a significant crack evident in the existing south west wing wall that warrants review to determine whether there is sufficient capacity to support the backfill and the new culvert bridge loads. 3. The fill behind the wing wall appears to have been placed in an uncontrolled manner with inadequate compaction. 4. A full assessment of the culvert arrangement is required and must entail a review in accordance with AS5100 of loading scenarios in addition to the design procedures set out in AS 1597.2. In particular, an assessment of lateral restraint, potential lateral loads from debris, positive fixings and load paths down to foundation level is required. 5. Some provision for 'scour protection', such as that proposed by Mr Appleyard is appropriate given the constriction of Racecourse Creek by the existing culvert bridge.
14. The structural engineers also identify the need for a transition from the roadway to the deck of the existing culvert bridge by the placement of what is known as 'approach slabs' of around 4m in length.
15. Mr Appleyard is of the view that information contained in AS5100, unspecified by him, is an appropriate guide for the design of these approach slabs, and the experts agree that the design philosophy to introduce an approach slab on either side of the bridge is reasonable.
16. The Applicant submits that the Court, if otherwise minded to grant consent to the Crossing Upgrade Appeal (Exhibit CU-B) and BIC Appeal (Exhibit BIC-A) is able to do so by either the imposition of a condition, or delivering preliminary findings with directions, for a structural assessment of the existing culvert bridge to be completed prior to final orders.
17. I decline to do so for the reasons that follow: 1. Firstly, I consider the structural integrity of the existing concrete culvert, and its embedment in the riparian zone of Racecourse Creek to be a matter essential to the Crossing Upgrade Appeal and BIC Appeal that cannot be deferred. 2. Secondly, on the basis of the flow diagram provided by Mr Appleyard at Figure G1 (Exhibit 12, p4 of 16) which I understand to be reproduced from AS1597.2, I consider the assessment agreed by the structural engineers to be required, to involve a sufficiently large number of variables to pose a very real chance of requiring further ecological assessment. Relatedly I note the agreed position of the engineering experts that should any significant structural rectification works be proposed to the culvert, a review of 'bed and bank conditions' upslope is required (Exhibit BIC-2, p4). 3. Thirdly, while the structural experts agree that some provision is required to address 'scour protection', that agreement is qualified, subject to guidance from a source that is not before the Court, the 'Bridge Scour Field Guide', and is likely to result in additional works in Racecourse Creek that may again require further ecological assessment. 4. Fourthly, the experts agree that approach slabs are appropriate to effect smooth transition between roadway and deck of the culvert bridge. The precise extent of these slabs, and their location is yet to be confirmed, however from the evidence before the Court (Exhibit A, folios 95-96), it is likely that some portion of the southern approach slab, if not its entirety, would be constructed on adjoining land and owners consent is not before the Court.
18. In summary, the existing concrete culvert bridge requires a full and detailed assessment of its structural integrity, and appears to require the addition of scour protection and approach slabs that are likely to expand, and not further limit, the extent of environmental impact currently shown in the riparian zone.
19. On these grounds, I determine the Crossing Upgrade appeal should be dismissed.
20. On the basis of the agreed evidence at [213], and for the reasons set out at [217], I also determine that the BIC Appeal should be similarly dismissed for that part of the application that relates to the existing concrete culvert bridge.

The New Crossing Appeal

1. The proposed concrete culvert bridge the subject of the New Crossing Appeal is founded on a construction solution similar to that already evident on site, only wider, being a two-tiered stacked concrete culvert assembly shown on Drawing PS08-E200 Revision B (Exhibit NC-B), re-produced below:
2. Integral to the proposal are concrete 'wing walls' and terraced sandstone retaining walls, and works within Racecourse Creek itself to modify the river bed so as to lower the levels of the creek bed to align with the invert level of the proposed culvert bridge, and widening at the existing creek constriction as shown on Drawing PS08-C101 Revision B, re-produced below:
3. The extent of cut and fill required to resolve the levels of the proposed driveway and bridge surface are shown on civil engineering drawings PS08-C500 (Exhibit NC-B).
4. The Statement of Environmental Effects (SEE) prepared by Martens dated April 2020 (Exhibit NC-A) describes the proposed development the subject of the New Crossing Appeal in following terms: "This Development Application (DA) seeks consent from Wollondilly Shire Council (the Council) for construction of an internal driveway access within the southern portion of the Site from Remembrance Driveway. The proposed driveway access includes a crossing over Racecourse Creek in the form of box culverts. The new crossing is proposed upstream of an existing culvert crossing which is proposed to be demolished. … The proposal involves the following works: Partial infilling of an existing farm dam to the east of the proposed driveway, and provision of rock revetment to embankment. Minor excavation and provision of sandstone retaining walls within the Racecourse Creek channel to accommodate the proposed culverts. Seal the new driveway. Associated vegetation removal."
5. Appended to the SEE is a Watercourse Assessment dated 22 January 2019 and a Flood Assessment dated April 2020.
6. Exhibit NC-A also contains an assessment against the provisions of cl 7.3 of the WLEP, in the following terms: "Based on the WLEP mapping (figure 3), the Site includes areas of sensitive land. The proposed culvert crossing is over Racecourse Creek and within the identified sensitive land. We have therefore considered the following: 1. The proposal will have a minor positive water quality impact because it will replace existing unsealed road with sealed road which will reduce the amount of sedimentation discharged into the Creek. 2. The proposed culvert crossing maintains the natural flow regime and flow paths of Racecourse Creek. 3. The proposed stepped sandstone retaining walls within the Creek will ensure the banks stability of the Creek is not adversely affected. 4. The proposal does not affect the groundwater system."
7. Dr Martens considers the proposed wing walls and sandstone retaining walls an appropriate means to withstand the 'scour' that can result from high velocity water flow that would otherwise abrade or erode the embankment of the creek.
8. The proposal is relevant to the ecological evidence as Mr Lindsay, in his oral evidence, states that he assessed the design of the crossing, the subject of both the Crossing Upgrade Appeal, and the New Crossing Appeal, but is unsure if that assessment included the new wing walls proposed in the New Crossing Appeal.
9. While the Court was not assisted by submissions as to the information relied upon by the ecology experts in the preparation of Exhibit 10, I note 39 sources of information are listed at Section 1.1 of the joint expert report. Drawing No. PS08-B300 Revision C is the only drawing listed. It is helpful to re-produce the relevant excerpt of that drawing below:
10. The relevant notations on the drawing above in the location of the culvert bridge are: "Existing downstream culvert crossing to be demolished" And: "Isolation barriers to be formed from sediment fence or floating silt curtains for flow diversion in/around creek during construction. Details to be provided at detail design phase."
11. The 'Razorback Development Application' prepared by Martens dated 2020 is also cited as a document relied on by the experts.
12. Section 1.1 of the joint expert report states the experts conferred by telephone and email on 20 July 2021.
13. It is relevant to note the drawings re-produced at [221] and [222] were produced on 20 May 2021, according to the Revision description in the titleblock (Ex NC-B).
14. As the experts conferred 8 weeks after the drawings at [221] and [222] were produced, but do not identify these drawings as information relied upon, I can only conclude that the ecology experts did not have the benefit of, or otherwise did not consult, those drawings when conferring.
15. Furthermore, while the BDARs prepared by Mr Lindsay in support of the Crossing Upgrade Appeal and BIC Appeal, and the New Crossing Appeal do not identify the documents relied upon in their preparation, all are dated 1 June 2021, after the production of the drawings at [221] and [222].
16. In identifying the water body as a potential habitat for threatened species or threatened ecological communities that are likely to be impacted by the proposal, Mr Lindsay describes the potential impacts as follows (NC-D, p55): "The proposed development will introduce culverts to allow vehicle access over Racecourse Creek. Further to this, an existing vehicle track will be widened however this is not expected to significantly impact the riparian corridor."
17. In identifying the threatened species or threatened ecological communities likely to use the habitat of Racecourse Creek, Mr Lindsay states: "Racecourse Creek supports River-Flat Forest EEC. All locally occurring threatened species are likely to drink from pools along Racecourse Creek."
18. In identifying the nature, extent and duration of known short and long-term impacts on water bodies and hydrological processes, Mr Lindsay states: "The construction of the widened track may lead to increased erosion and sedimentation. This will be mitigated accordingly (Martens & Associates 2021). After the construction phase, no further impediment to the creek is expected. The exposure of bare soil during clearing and construction will cause increased risk of erosion and sedimentation into the watercourse and this could lead to stream blockage or altered stream flow, however this risk will be managed in accordance with best practice as the applicant will enact the recommendation of 'The Blue Book' (Landcom 2004) and associated Engineering Plans (Martens & Associates 2021)."
19. In similar terms, Mr Lindsay identifies the nature, extent and duration of short and long-term impacts on water quality in the following terms: "The construction of the new crossing may require temporary damming and dewatering of the creek. This could affect water quality though temporary stagnation on the upstream side. After the construction phase, no further impediment to the creek is expected. The exposure of bare soil during clearing and construction will cause increased risk of erosion and sedimentation into the watercourse and this could lead to pollution of the stream from coarse particles (turbidity) as well as nutrient enrichment, hydrocarbons and heavy metals, however this risk will be managed in accordance with best practice as the applicant will enact the recommendation of 'The Blue Book' (Landcom 2004) and associated Engineering Plans (Martens & Associates 2021)."
20. The assessment of biodiversity undertaken by Mr Lindsay includes biodiversity that is both aquatic and terrestrial. As it is put by Mr Linsday in his oral evidence: "aquatic species can't be terrestrial biodiversity, but you can have species that are both aquatic and terrestrial."
21. Mr Lindsay cites the River-Flat Forest EEC as an example of a species that is both aquatic and terrestrial because it is dependent on the river system, and so forms part of his assessment, however, it is not the purpose of a BDAR to assess purely aquatic organisms such as fish.
22. Additionally, Mr Lindsay states in the joint expert report an assessment of the aquatic ecology downstream of the proposed development was outside the scope and brief of his engagement (Ex 10, p138), and, as noted as [198], an Aquatic Impact Assessment Report is an assessment of a kind governed by the Fisheries Management Act 1994, and not the BC Act.
23. I note the polygon indicating the maximum limit of disturbance is shown to include the area of Racecourse Creek in the location of the proposed new concrete culvert bridge (Exhibit NC-D, p23), and Mr Lindsay has logged the outcomes of the BAM VIS field surveys in this location (Ex NC, -D, Appendix B).
24. On the basis of the limited civil engineering documentation identified by the experts in respect of the New Crossing Appeal, and the qualified understanding of the scope of the proposed works acknowledged by Mr Lindsay in his oral evidence, I conclude that the assessment undertaken by Mr Lindsay is a function of a limited understanding of the nature of the works proposed.
25. In particular, I note there is no reference in the BDAR at Exhibit NC-D to particular aspects of the proposal that would suggest Mr Lindsay has undertaken a biodiversity assessment cognisant of the likely environmental impacts of the development proposed in New Crossing Appeal within the area defined by the 'maximum limit of disturbance' polygon as it relates to Racecourse Creek.
26. While there is reference by Mr Lindsay to a widening of the vehicle track in the vicinity of Racecourse Creek, there is no reference to the proposed widening of Racecourse Creek.
27. Similarly, while there is reference to action to be taken where de-watering of a waterbody is proposed, there is no assessment of the impact, if any, of proposed excavating of the creek bed that Dr Martens advises is in the order of 300mm in depth (see Exhibit NC-B, Drawing E201).
28. Additionally, I note a typical section detail of the sandstone retaining walls at Drawing PS08-G200 Revision B, produced 29 June 2021, requires further excavation of 600mm below the creek bed surface for sandstone blocks, set on a compacted bed that is a further 150mm deep.
29. With excavation of 750mm in depth proposed within the creek bed and embankment, in addition to up to 300mm of excavation in the creek bed itself, and associated widening of the creek, it is surprising that the BDAR limits its consideration of the potential impact on threatened species to statements of such generality as that at [237], to the potential impact on the creek and its hydrological processes to a statement of such generality as that at [238], and the potential impact on water quality as evident at [239].
30. I am left to conclude that Mr Lindsay omitted, or was unaware of, the extent of the intervention proposed, and so was unable to adequately consider the biodiversity impacts of the New Crossing proposal on Racecourse Creek in Section 6 of the BDAR.
31. In arriving at this conclusion, I note the strategies and actions that may be taken to avoid or minimise impacts on biodiversity values at Section 7.1.1 of the BAM include locating a proposal in an area lacking biodiversity values (subs 3(a)), and where the native vegetation or threatened species habitat is in the poorest condition (subs 3(b)).
32. I do not understand the term ''biodiversity' to be a restrictive term, such that failure by the BAM to identify a particular plant or animal group or species relieves a proponent from assessing the potential impact of development on a plant or animal group or species.
33. The facts in this case are that the Respondent particularised aquatic biodiversity as a matter of contention in November 2020 and again in July 2021.
34. Given the extent and scale of excavation and engineering works proposed in the Racecourse Creek environs, an assessment of aquatic biodiversity identified by the Respondent in November 2020 is warranted.
35. The fact that no assessment of aquatic biodiversity has been undertaken given the extent and scale of excavation and engineering works is a relevant consideration, especially as Mr Lindsay had identified Racecourse Creek as a key fish habitat with potential threatened species.
36. I accept Mr Sheather-Reid's evidence, agreed to at one point by Mr Lindsay, that assessors are granted certain discretion by the BAM in how an assessment is undertaken. I also accept that it is a requirement for a BDAR to assess direct and indirect effects of development on biodiversity and, absent an assessment of aquatic biodiversity, an assessor is unable to make the assessment required of them, other than to conclude there would potentially be impacts that affect aquatic biodiversity, that may include threatened aquatic species.
37. This is consistent, in my view, with the guidance provided by Section 7.1.1 (2) of the BAM that selecting a final proposal location may be an iterative process that may be informed by, for example, consideration of alternative modes or technologies that would avoid or minimise impacts on biodiversity values (Subs 4(a)).
38. Consideration of alternative modes or technologies to the culvert bridge solution, such as a single span bridge preferred by Mr Sheather-Reid, for example, is not documented in the BDAR prepared in the support of the New Crossing Appeal, and is not identified by Mr Lindsay at [185]-[187] as an alternative advised to the project team.
39. Consideration of alternative options at Section 6.1.2 of the BDAR at Exhibit NC-D is limited to a comparison between the existing culvert bridge and a new concrete culvert bridge of near identical design.
40. However, consideration of alternative bridge designs would appear to present an opportunity to avoid an adverse impacts on those matter sets out at cl 7.3(3) of the WLEP, particularly the natural flow regime (subcl (b)), and the natural flow paths of waterways (subcl c)).
41. Further, such a solution would appear to conform to the Crossing Guidelines to maintain geomorphic processes by maintaining the natural bed and bank profile, and the natural hydrological regimes by maintaining, and not excavating, the gradient of the creek bed and embankment, and may minimise or eliminate the need for concrete wing walls, and sandstone retaining walls for scour protection given the constriction of the creek could be avoided.
42. Finally, I note that such a bridge solution would conform to the Crossing Guidelines applicable to bridge crossings that states: "Ideally, bridges shall be elevated and span the riparian corridor", And, further: "Bridge piers or foundations should not be located within the main channel of the watercourse"
43. Instead of considering alternatives in what the BAM advises should be part of an iterative process, Mr Lindsay's oral evidence leads me to conclude that insufficient iteration characterised the design of the proposal and instead Mr Lindsay's role in an area of sensitive land, and in a watercourse identified by him as a key fish habitat with potential threatened species, was to merely assess what the engineers presented to him, and which he assumed was sufficiently "thorough" for him to assess.
44. Absent an assessment of biodiversity inclusive of all biodiversity represented in Racecourse Creek, such as aquatic biodiversity, the Court cannot form a view that the BDAR properly assesses the biodiversity values of Racecourse Creek, or that it assesses the impact of the proposed development on the biodiversity values of the land in accordance with s 6.12 of the BC Act.
45. Furthermore, absent such a proper assessment, the Court cannot be satisfied that the development is designed or sited to avoid or minimise any adverse environmental impact pursuant to s 7.3(3) of the WLEP.
46. Accordingly, I determine the New Crossing Appeal should be refused.
47. Therefore, as the Court has determined that the three appeals proposing access from Remembrance Driveway should be refused pursuant to s 4.16 of the EPA Act, it follows that the proposed Equestrian Centre cannot rely upon access from Remembrance Driveway.
48. The difficulty this imposes on the applications before the Court is that the traffic experts agree that the alternative access from the existing road at Mount View Close is unsuited to horse float traffic which is relied upon by the Equestrian Centre appeal (Exhibit 5, pars 19 and 35 ).

Access from Mount View Road is considered

1. According to Mr Doan's written evidence at par 10, "the existing access (via Mount View Close) in its current condition is considered unsuitable for this purpose [horse float traffic]. Furthermore, the Mount View Close access has a number of residential dwellings and the additional traffic generation of the site may cause unnecessary disruption when an existing access is available from an alternative frontage which will avoid any distribution to residential developments."
2. At par 26, Mr Doan states "it is unlikely that a horse float will access from Mount View Close however, the access has been designed to accommodate such vehicle when needed (subject to other applications/approvals)".
3. As the Court was largely unassisted by submissions on the suitability of Mount View Close for horse float vehicles, I record here that I interpret Mr Doan's statement at [270] to be that it is the access to Mount View Road from within the site, being development the subject of the E4 Road Appeal, that is designed to accommodate such vehicles, and not Mount View Close itself.
4. As no works are proposed to Mount View Close, Mr Doan's statement must be in respect of those works for which consent is granted in the E4 Road Appeal, being works within the site.
5. Relatedly, Mr Doan notes, at par 57, that trailer or horse float vehicles would use the Remembrance Driveway access and that only light vehicles would use the Mount View Close access.
6. In closing submissions, the Applicant acknowledges agreement of the experts that Mount View Close is not, in its current state, an appropriate vehicular access to the site due to the increased traffic from the Equestrian Centre and characterises the unsuitability of Mount View Close by reference to cl 101(2)(a) of the State Environmental Planning Policy (Infrastructure) 2007 in respect of development with a frontage to a classified road. (2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that - (a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and …
7. In similar terms, Mr Calvey cites Council Design Specification (2016) Clause D12.06 as the source of a prohibition for access "to a major road if reasonable access can be gained from another road. Mount View Close provides access to the site. However, Mount View Close, in its current form, is unsuitable for increased traffic movements associated with the Equestrian Centre."
8. Relevantly, the E4 Road Appeal does not propose works to Mount View Close, but is limited to the upgrade of the road within the site that connects Mount View Close with, firstly, the RU2 Road that services the Equestrian Centre and secondarily, to an unsealed driveway providing access to the existing dwelling on the property.
9. The nature or extent of works required to Mount View Close that would render it suitable to traffic such as horse float vehicles, if that is possible, is not before the Court.
10. Put another way, the traffic experts agree that Mount View Close is not suited to vehicular traffic such as horse floats, and the Applicant does not propose works to upgrade the Mount View Close.
11. As shown by Preston CJ in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 (Palm Lake), at [5], the Court is required by s 4.15(1)(b) of the EPA Act to take into consideration "the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality."
12. The phrase "the likely impacts of that development" embraces off-site impacts that can result from "not only by the proposed development impacting adjoining or other land in an area of influence but also by some other development provided that the impacts of that other development have "a real and sufficient link" with the proposed development, such as where the impacts are caused by "some further undertaking that is 'inextricably involved' with the proposed development": Bell v Minister for Urban Affairs and Planning (1997) 95 LGERA 86 at 101 and Environmental Defence Society Inc v South Pacific Aluminium (No 4) [1981] 1 NZLR 530 at 534-535." (Palm Lake at [6]).
13. The Traffic Assessment Report prepared by Mr Doan dated 2 June 2021 (Exhibit EQ-L) states that parking spaces for 20 horse floats are provided, as does the Operational Plan of Management (Exhibit EQ-K, p7). Drawing 2103-N-PL001, prepared by C4 Architects indicates 20 spaces sized to accommodate car and trailer vehicles.
14. Further, the likely traffic-related operations of the Equestrian Centre are premised on the following operational assumptions (Appendix B of Exhibit 5): "Group Riding Lessons (horse riding or dressage) Expected to be 3 days a week (Wednesdays, Saturdays, and Sundays) 2 hours each lesson Up to 20 students will be travelling to the facility (hence 20 car parks provided) Some students might bring their own horses to take lessons (hence horse float parking is provided). … Events It is anticipated there will be up to 4 events a year allowing up to 20 visitors to bring their horses to the facility for a group training."
15. Vehicular access for horse floats would appear inseparable from the operation of an equestrian facility that assumes the movement of horses in and out of the site on occasion.
16. On the basis of the above, I conclude that provision of access for horse floats on Mount View Close has a real and sufficient link to the development the subject of the Equestrian Centre development application, in respect of which works to Mount View Close is an undertaking that is 'inextricably involved' with the operation of an Equestrian Centre.
17. Here, as in Palm Lake, works are required to provide practicable, safe and efficient traffic movement to and from the proposed development. However, just as the nature and extent of works are unknown, so too are the impacts of those works, if any, on Mount View Close, its environs and residents.
18. As the Court has determined that access from Remembrance Driveway is not possible to the Equestrian Centre, and the parties acknowledge the expert traffic evidence that Mount View Close in its current condition is unsuited to traffic on which the Equestrian Centre depends for use, and the works and the impacts arising from those works, are unknown, it follows that the Equestrian Centre Appeal must fail. Simply, there is no means of access to the Equestrian Centre.
19. What flows from this is fatal also to the RU2 Road and E4 Road Appeals and, in part, the BIC Appeal.

The site is contaminated

1. As stated at [136]-[139], asbestos has been identified in two areas of the site.
2. In the area of the RU2 Road and E4 Road Appeals, the Site Audit Report (Exhibit 4, Vol 2, Tab C) states that: 1. Cement fibre sheeting fragments (PACM) were observed at the surface at several locations (p 37); 2. A positive identification of asbestos was made in all surface PACM samples sent for laboratory analysis (p 37); 3. Bonded ACM at the site surface was observed across a large portion of the Equestrian Centre and northern portion of the RU2 and E4 Road investigation areas. (p 44); 4. Elevated hydrocarbon detections were detected in imported fill material containing anthropogenic inclusions such as builder's rubble, concluding that fill is likely sourced from redevelopment sites where past site activities, such as car parking, and earthworks processes, such as operating earthworks equipment, have resulted in minor hydrocarbon impacts.
3. Furthermore, brick and tile fragments, metal, plastic and PACM were observed within the fill in the area of the RU2 Road and E4 Road Appeals, and the Equestrian Centre Appeal (p 41) at depths of up to 3m below surface.
4. Additionally, the Site Audit Report identifies exceedance of human health and ecological criteria for heavy metals in the vicinity of the Equestrian Centre and associated infrastructure as follows: 1. Six incidents of Benzo(a)pyrene exceeding ecological screening levels (p 41). 2. An exceedance of the "TRH C10-C16 less napthalene fraction" (p 43). 3. An exceedance of groundwater exceeding criteria for zinc, that was later retested within the criteria. 4. Elevated concentrations of barium (p 43) that exceeds National Environmental Protection Measures drinking water guidelines, the source(s) of which have not been confirmed (p 45).
5. These results cast doubt on the efficacy of the run sheets and waste classification contained in Attachment C of the Martens Letter of 26 February, or on the completeness of those records as to the origin and nature of fill imported on the site.
6. This reality is consistent with the written evidence of Mr Norris who explains, at p 7 of the Exhibit 4, his understanding that additional waste was brought on to the site after the preparation of the run sheets and waste classification referred to above.
7. While the Court closes its' eyes to assertions of past unlawfulness in matters such as this for the reasons set out at [91], the Court is confronted with the reality of asbestos material, and other contaminants, being within fill apparently classified as VENM.
8. The Applicant's Remedial Action Plan relies upon the works associated with the Equestrian Centre to cap the asbestos containing material that is proposed to be excavated from locations identified in the RU2 Road and E4 Road Appeals.
9. However, absent consent for development the subject of the Equestrian Centre Appeal, there is no location in which approximately 1,200m3 of material proposed to be excavated from the RU2 Road and E4 Road appeals can be buried or capped.
10. Absent such a remediation strategy for the asbestos containing material identified in the RU2 Road and E4 Road Appeals, I cannot be satisfied that the land, which is contaminated, will be made suitable for the purpose for which development is proposed to be carried out in accordance with cl 7 of SEPP 55.
11. In arriving at this conclusion, I am unable to reconcile the certification of the imported fill as VENM, with the results of testing at [289]-[291]. On the basis of the sampling undertaken in the Detailed Site Investigation, summarised in the Site Audit Report, I conclude the quality of the fill imported on to the site is not wholly VENM as put by the Applicant.
12. While the Site Audit Report concludes that adequate sampling has been undertaken, it also recommends contingency plans be put in place for unexpected finds, and qualifies its conclusion that the site can be made suitable on the proviso that the RAP is followed.
13. As the RAP relies upon the Equestrian Centre to cap asbestos material, the RAP cannot be implemented and so the conclusion of the Site Audit Report is also compromised.
14. Accordingly, after considering the contaminated quality of the fill, and the uncertain destination of excavated material that is without an identified method of remediation, I find the E4 Road and RU2 Road Appeals to warrant refusal pursuant to cl 7.5 of the WLEP.
15. As the development the subject of development applications in the E4 Road, RU2 Road, New Crossing and Crossing Upgrade appeals are found to warrant refusal, the development the subject of the Internal Roads Appeal is without means of access and so must also be refused.
16. Structures for which consent is sought in the Internal Roads Appeal, set out at [4], are also the subject of the BIC Appeal.

The BIC Appeal is refused

1. The powers of the Court on appeal in respect of a building information certificate at s 6.25 of the Act, are relevantly as follows: (1) A building information certificate is to be issued by a council only if it appears that - (a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993 - (i) to order the building to be repaired, demolished, altered, added to or rebuilt, or (ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or (iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or (b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings. …
2. In Ireland v Cessnock City Council (1999) 110 LGERA 311; [1999] NSWLEC 250 at [37] Bignold J set out the relevant issues when considering an application for a building information certificate as being first, the structural adequacy of the building, and secondly, the probability of development consent being granted had such approval been sought.
3. The second consideration was further described in Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276, at [58], in the manner of a notional development application, which is an appropriate exercise for the Court to undertake in the exercise of the statutory discretion conferred upon it.
4. As stated at [218], the existing concrete culvert bridge requires structural rectification, the scope and impact of which is uncertain, in order for it to achieve structural adequacy. Absent an understanding of the scope and impact of such remediation, I determine that aspect or element of the BIC Appeal should fail.
5. Next the Applicant submits the wheel wash bay is associated with unsealed roads forming a loop road around the riding arena and horse yards of the Equestrian Centre, in the vicinity of the OSD/bioretention basin identified on Drawing PS22-D102 (Exhibit EQ-C).
6. An excerpt of the relevant drawing is re-produced below. For assistance, the approximate location of the wheel wash bay is identified by the dark star.
7. The Applicant identifies a nexus between the unsealed roads in the Equestrian Centre Appeal and the wheel wash bay. As such it follows that, absent an approval for the Equestrian Centre, the utility provided by the wheel wash bay is uncertain.
8. That said, Mr Lovell's written evidence is that, so long as the wheel wash bay does not impose any adverse impacts, it should be regarded as acceptable.
9. The civil engineering experts agree that current runoff from the wheel wash bay is likely to have environmental impacts, described as minor, that can be improved by the installation of a "small baffled sedimentation tank (or similar proprietary device) to remove oil and hydrocarbons prior to release to the downslope water quality basin". (Exhibit BIC 2, p 5)
10. Such a tank "should be routinely inspected and maintained so as to ensure that accumulated material is removed as needed". (Exhibit BIC 2, p 5)
11. The Court was unassisted by evidence on the volume and quality of runoff from the wheel wash bay, described by the experts as having an environmental impact, or the specifications of a sedimentation tank, such as its size, capacity, access and maintenance requirements, location and the like.
12. I note the wheel wash bay appears to be either in close proximity to, or wholly within, the area identified as CPW EEC and so consideration of impacts on biodiversity values is a relevant consideration of development proposed in the area, such as those likely to rise from the installation of a sedimentation tank.
13. Absent specifications of the sedimentation tank, I accept Mr Sheather-Reid's written evidence that the Applicant has not demonstrated the proposed measures will be sufficient to prevent oils and hydrocarbons polluting Racecourse Creek.
14. Accordingly, the Court declines to direct the Respondent to issue a Building Information Certificate in respect of the wheel wash bay.
15. According to the structural engineering joint report (Exhibit BIC-8), the toilet structure is capable of having appropriate bracing installed to achieve structural adequacy, and a design statement prepared by Dr Martens (Septic Design Statement) (Exhibit BIC-2, Annexure C) sets out the system design requirements and specifications of the septic tank and ancillary plumbing as installed.
16. The septic design statement concludes the septic tank is a compliant system, has been installed by a licenced plumber, is associated with an absorption trench sized, designed and installed in accordance with the relevant Australian Standard, and in a location that is outside of recommended environmental buffers.
17. Unassisted by detailed submissions on the matter, I understand those 'environmental buffers' to be reference to the proximity to 'Sensitive Land' as defined at [41]. The distances from the toilet structure, septic tank and absorption trench are marked on Figure 1 Annexure C (Exhibit BIC 2) of the Septic design statement, and exceed 40m from Racecourse Creek. Figure 1 is re-produced, in excerpt below:

1. The septic design statement, at Figure 2 of Annexure C (Exhibit BIC 2), re-produced below, shows the septic tank and ancillary plumbing during construction.
2. The works depicted in Figure 2 do not appear to me to be within the area identified in the polygon at [183] described as the maximum limit of disturbance, which is consistent with Mr Lindsay's written evidence in the joint expert report (Exhibit BIC 4) that he has not assessed the impacts, if any, of the works on biodiversity values.
3. However, the works depicted in Figure 2 appear to be in close proximity to, if not entirely within, the CPW EEC and in an area identified by Mr Lindsay at Figure 7 of the BDAR (Exhibit IR-D), re-produced in excerpt below, as a 'Significant Biodiversity Link' on the site. The approximate location of the toilet structure, septic and absorption trench is marked with white star.
4. Likewise, the location of the absorption trench as shown in Figure 4 of Annexure C (Exhibit BIC 2), re-produced below, appears to be within the area identified as CPW EEC, and in the proximity of the root zone of certain trees within the area identified as CPW EEC.
5. As the development, and indeed the evidence of works to construct the development, appears to be within the area of the CPW EEC, s 7.7(2) of the BC Act requires a BDAR to accompany an application if the application is likely to significantly affect threatened species.
6. No such BDAR has been prepared, and Mr Lindsay's written evidence expressly excludes an assessment of the impacts of the septic tank and absorption trench from the assessment of impact on biodiversity values undertaken by him in the reports at [152].
7. Absent an assessment of the impacts, if any, of the development on the biodiversity values of the CPW EEC, the Court is unable to consider the biodiversity values of the land subject to the proposed development, activity or clearing, the impact of proposed development, activity or clearing on the biodiversity values of that land, what measures, if any, the proponent of the proposed development, activity or clearing proposes to take, or took, to avoid or minimise the impact of the proposed development, activity or clearing, and the number and class of biodiversity credits, if any, that are required to be retired to offset the residual impacts on biodiversity values of the actions to which the biodiversity offsets scheme applies, being aspects to be addressed in a BDAR, in accordance with s 6.12 of the BC Act.
8. Additionally, the Court is also without evidence as to the steps taken to locate the proposal to avoid or minimise direct and indirect impacts on native vegetation, threatened species, threatened ecological communities and their habitat in accordance with clause 7.1.1 of the BAM.
9. Accordingly, I am unable to conclude that the earthworks required for the installation of the septic tank and absorption trench will not have a detrimental impact on environmental functions and processes, because of the proximity of the earthworks to, and potential for adverse impacts on an environmentally sensitive area, which is a consideration I must undertake in accordance with cl 7.5 (3)(g) of the WLEP.
10. For these reasons, I do not consider there to be grounds on which the Court should exercise its discretion to direct Council to issue a Building Information Certificate for the toilet structure, the septic or absorption trench.
11. Finally, the BIC Appeal seeks the Court to direct the Respondent to issue a Building Information Certificate in respect of a water tank shown on Drawing PS15-A100 Rev A (Exhibit BIC A), that the Respondent contends is erected on unstable ground.
12. The structural engineering experts agree that no objection can be taken to the letter prepared by the accredited water tank installer appended to Exhibit BIC 8, stating that the installation of the water tank was in accordance with the manufacturers engineering specifications.
13. The engineering experts agree, at pp 5-6, that overflow from the water tank can be collected and directed to the nearby driveway drainage system. I understand this reference to be to the driveway drainage proposed in the Internal Roads Appeal, refused at [302].
14. An assessment of the stability of the embankment supporting the water tank is included at Annexure B of Exhibit BIC 2. The assessment is supported by geotechnical investigations, and a slope and foundation assessment.
15. Engineering Logs supporting the geotechnical investigations document the drilling depth and material description at five locations in the immediate vicinity of the water tank. The logs show between 300mm and 900mm of fill forming the embankment.
16. The recommendations, to which no objection is taken in the joint expert report, are summarised as follows:

• A perimeter aggregate drain to be installed at the top of the embankment,
• Erosion damage in the embankment surface to be remediated by replacing and compacting soil,
• The embankment should be hydromulched to establish vegetation as quickly as possible.

1. I am unable to locate evidence of environmental testing in the vicinity of the water tank, either in Exhibit BIC 2 or in the Mapset at Attachment A of the Detailed Site Investigation (Exhibit Master 4).
2. On the basis of my conclusion at [298], and the consideration I must give in accordance with cl 7 of SEPP 55 as to whether the land is contaminated, I do not have sufficient information to be satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out.
3. For this reason, I do not consider there to be grounds on which the Court should exercise its discretion to direct Council to issue a Building Information Certificate for the water tank.

Conclusion

1. After considering the appeals set out at [3]-[4], I find that all applications for development consent warrant refusal, as do all of the elements contained in the BIC Appeal.

In respect of the Equestrian Centre appeal (Proceedings No. 2020/276311):

1. The Court orders that: 1. The appeal is dismissed. 2. Development application DA 2020/376/1 for the establishment of an equestrian centre with associated sheds, horse stables, horse walkers, internal driveways, earthworks, drainage works and landscaping is refused. 3. All exhibits are returned except for Exhibit EQ-A, EQ-B, EQ-C, EQ-D and EQ-E.

In respect of the Crossing Upgrade Appeal (Proceedings No. 2020/326094):

1. The Court orders that: 1. The appeal is dismissed. 2. Development application DA 2020/536/1 (Proceedings No. 2020/326094) for upgrade of a creek crossing constructed by the Applicant, sealing of driveway and installation of drain pipe is refused. 3. All exhibits are returned except for Exhibit CU-A, CU-B, CU-D.

In respect of the RU2 Road (Proceedings No. 2020/335248):

1. The Court orders that: 1. The appeal is dismissed. 2. Development application DA 2020/583/1 for the upgrade of an existing onsite driveway with associated earthworks, construction of retaining walls, rock revetment, stormwater drainage and tree removal is refused. 3. All exhibits are returned except for Exhibit RU2-A.

In respect of the E4 Roads Appeal (Proceedings No. 2020/315373):

1. The Court orders that: 1. The appeal is dismissed. 2. Development application DA 2020/505/1 for the upgrade of an existing driveway with associated earthworks, road drainage, retaining walls, and tree removal is refused. 3. All exhibits are returned except for Exhibit E4-A.

In respect of the New Crossing Appeal (Proceedings No. 2020/270199):

1. The Court orders that: 1. The appeal is dismissed. 2. Development application DA 2020/238/1 for the construction of an internal driveway and creek crossing, associated earthworks and tree removal is refused. 3. All exhibits are returned except for Exhibit NC-A.

In respect of the Internal Roads Appeal (Proceedings No. 2020/181331):

1. The Court orders that: 1. The appeal is dismissed. 2. Development application DA 2020/40/1 for modification and construction of internal driveways, dam alterations, construction of a wheel wash bay, tree removal, stormwater drainage by construction of a swale, inclusion of retaining walls and rock revetment and associated earthworks is refused. 3. All exhibits are returned except for Exhibit IR-A, IR-B, IR-C, IR-D.

In respect of the BIC Appeal (Proceedings No. 2021/83520):

1. The Court orders that: 1. The appeal is dismissed. 2. Building Information Certificate BIC/2020/69/1 comprising an existing concrete culvert bridge spanning Racecourse Creek, a wheel wash bay, a toilet enclosure and a water tank is refused. 3. All exhibits are returned except for Exhibit BIC-A.

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DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 December 2021