Penrith City Council v Settlers Estate Pty Ltd

Land and Environment Court (NSW)|2020-07-15|Before: Pepper J

Solicitors: HWL Ebsworth Lawyers (Applicant) Colin Biggers & Paisley Lawyers (First to Fourth Respondents) File Number(s): 2020/170844

The Parties Agree to a Separate Question

On the first day of these civil enforcement proceedings two matters became apparent. First, the matter could not be completed within the allocated time (two days), which was problematic given that the litigation was attended by a degree of urgency due to undertakings given by the respondents to halt certain development activity until the proceedings were finalised and in light of the heavy listings in the Court calendar during the second half of the year. Second, if breach was established by the applicant, Penrith City Council ("the Council") as alleged, then the parties were very confident that agreement could be reached as to the appropriate method of remedying the breach (T37:39-42 and 38:10).
Accordingly, at the Court's suggestion and with the parties' consent, it was agreed to proceed by way of separate question on the issue of breach alone. This course would permit, or so it was understood, the proceedings to conclude within two days. As it transpired the matter took five days to hear, in large part due to the inefficient manner by which it was conducted by the respondents (see, for example, Penrith City Council v Settlers Estate Pty Ltd [2020] NSWLEC 99).

A Developer Constructs a Drainage Line and a Culvert and Carries Out Channelling Works

The facts, which are drawn from an agreed statement of facts, the affidavit of Mr Michael Alderton sworn 25 June 2020, and a refined tender bundle, are as follows.
The first respondent, Settlers Estate Pty Ltd ("Settlers"), is a registered proprietor of land described as Lot 129 in DP 1215199, known as 1 Major Tomkins Parade, Werrington ("the riparian corridor").
The second respondent, Statewide Planning Pty Ltd, has the benefit of a number of development consents and controlled activity approvals which relate to or adjoin the riparian corridor and the surrounding area, which is the subject of the staged residential subdivision.
The third and fourth respondents, George W Pty Ltd and Eastern O'Connell Pty Ltd, respectively, are also registered proprietors of the riparian corridor.
The riparian corridor is: 1. part of a larger area of land which is the subject of a three stage residential subdivision which was known prior to its subdivision as Lots 50-58 in DP 1069025, being 55 French Street, Werrington ("subdivision land"); 2. a vegetated area of approximately 1.425 ha containing a significant number of trees and an unnamed watercourse (a creek) which flows from the south to the north ("the watercourse"); 3. surrounded, or in the course of being surrounded, by low density residential development to the east and west, undeveloped land to the south, and the western railway corridor to the north; and 4. zoned E2 Environmental Conservation pursuant to the Penrith Local Environmental Plan 2010.
The section of the riparian corridor which is relevant to the issues in dispute is mapped on the Biodiversity Values Map pursuant to the Biodiversity Conservation Act 2016 and cl 7.3(3) of the Biodiversity Conservation Regulation 2017.
On 29 April 2016 Settlers entered into a voluntary planning agreement ("VPA") with the Council with respect to the staged subdivision of land. Under the VPA the riparian corridor is to be dedicated to the Council.
On 16 May 2019 Settlers excavated the watercourse to varying depths in the riparian corridor from a culvert towards the north (downstream) for a length of approximately 100m. It also constructed a drainage line ("drainage line A") and a culvert.

Consents and Approvals Governing the Land

The subdivided land has the benefit of the following relevant development consents, construction certificates ("CC"), and controlled activity approvals: 1. stage 1 consent; 2. stage 1 CC; 3. first controlled activity approval; 4. stage 3 consent; 5. stage 3 roads and drainage CC; and 6. second controlled activity approval.

Stage 1

Development consent for stage 1 of the works was sought on 30 May 2011. The application was for integrated development. As part of the stage 1 development application process, s 4.47(2) of the EPAA required general terms of approval from the Department of Primary Industries, Office of Water ("Office of Water") (as it then was) to be obtained before granting the stage 1 consent, and a controlled activity approval before the stage 1 CC could be issued. Under s 4.47(3) of the EPAA, the stage 1 consent was required to be consistent with the general terms of approval ("GTA") proposed to be granted by the Office of Water in relation to the development and of which the consent authority was informed.
Because the works to construct sediment control basins for stage 1 were within 40m of the watercourse, the development required approval under the WMA. For this reason, the development application was referred to the Office of Water to obtain GTA, which were incorporated into the stage 1 consent.
On 18 July 2011 the stage 1 GTA were issued ("stage 1 GTA"). The stage 1 GTA relevantly included: 1. condition 1 - that the GTA only applied to the controlled activities described in the plans and associated documentation relating to the stage 1 consent; 2. condition 2 - that prior to the commencement of any controlled activity works on waterfront land, the consent holder had to obtain a controlled activity approval under the WMA; 3. condition 4 - that all plans had to be prepared by a suitably qualified person and submitted to the Office of Water for approval prior to any controlled activity commencing; 4. condition 5 - that the consent holder had to carry out any controlled activity in accordance with approved plans, construct or implement any controlled activity by or under the supervision of a suitably qualified professional, and when required, provide a certificate of completion to the Office of Water; 5. condition 18 - that the consent holder had to ensure that no excavation was undertaken on waterfront land other than in accordance with a plan approved by the Office of Water; 6. condition 21 - that the consent holder had to ensure that the surfaces of river banks were graded to enable the unobstructed flow of water and that the bank retaining structures resulted in a stable river bank in accordance with a plan approved by the Office of Water; and 7. condition 23 - that the consent holder had to establish a riparian corridor along the watercourse in accordance with a plan approved by the Office of Water.
On 26 April 2013 development consent for stage 1 of the subdivision was granted ("stage 1 consent"). The stage 1 consent approved the subdivision of 118 lots and associated works, including the works to be carried out within 40m of the waterfront land.
The stage 1 consent was limited to what works it approved in the riparian corridor, namely, basins known as "Basin 1" and "Basin 2". These were approved and constructed as sediment control basins during the subdivision works the subject of the stage 1 consent.
No approved development consent plan for the stage 1 consent described works for drainage line A, the culvert, or the excavation of the watercourse.
Relevantly, condition 3 of the stage 1 consent stated: The General Terms of Approval issued by the NSW Office of Water, reference 10 ERM2011/0587 and appended to this consent, are to be complied with and a Construction Certificate will not be issued over any part of the site that requires a Controlled Activity Approval until a copy of the Approval has been provided to the Principal Certifying Authority.
On 15 May 2014 a controlled activity approval was issued. It expired on 14 May 2017 and was replaced by a subsequent controlled activity approval expiring on 6 November 2020 ("first controlled activity approval"). Condition DS4889-00066 of the first controlled activity approval mandated that: The controlled activity authorised by this approval must be carried out in accordance with the following plan(s)/document(s) held by Crown Lands and Water Division, Parramatta Office, stamped on 15 May 2014: A. Plan/Document No. Plan No. SS14-2781, Drawing No 001, Issue E, : Landscape Masterplan, prepared by Site Image (NSW) Pty Ltd, dated 17/04/2014, B. Plan/Document No. Plan No. 20100127, Drawing No C03, Issue A, : Site Plan, prepared by S&G Consultants Pty Limited, dated 14/02/2014.
Neither plan denoted works for the construction of drainage line A, the culvert, or the excavation of the watercourse.
Having said this, the Landscape Masterplan (Issue E) ("Landscape Masterplan") referred to in the condition showed the "notional alignment" for the watercourse as 3m wide with riparian setbacks of 10m. It is not disputed by the Council that the watercourse as constructed follows the line of the notional watercourse as shown in the Landscape Masterplan.
Five separate CCs were issued in relation to the stage 1 consent. The only CCs that approved works in the riparian corridor were the stage 1 CC issued on 12 February 2015 and an earlier CC dated 11 June 2014.
The stage 1 CC did not relate to any work other than the construction of Basins 1 and 3. As note 3 of attachment 1 to the amended stage 1 CC made plain: As per construction certificate 13090 this certificate excludes works in the riparian corridor excepting the approved stormwater management basins. The development consent and controlled activity approval do not appear to have considered the necessary watercourse realignment, regrading and tree removal works required in this area to facilitate the approved subdivision design as only a planting plan has been approved. The applicant has been requested to address this issue with the relevant authorities. The realignment of the watercourse and regrading of the riparian corridor may also have a minor impact on post-development flood levels. Consideration of these matters may be appropriate as part of the assessment of the current development application for alteration of the subdivision pattern in Stage 2.
In summary, Basins 1 and 3 within the riparian corridor were approved by each of: 1. the stage 1 consent; 2. the stage 1 CC; and 3. the first controlled activity approval.

Stage 2

A stage 2 development consent and stage 2 CC approved development which utilised the drainage within the riparian corridor approved by the stage 1 consent. They are not otherwise relevant to the matters in dispute in this proceeding.
On 3 June 2016 subdivision certificates were issued for stages 1 and 2 of the subdivision.

Stage 3

The Council was again required to obtain GTA from the Office of Water prior to granting the stage 3 consent and a controlled activity approval prior to issuing the stage 3 CC. Similar to the stage 1 consent, the stage 3 consent was required to be consistent with the GTA proposed to be granted by the Office of Water in relation to the development and of which the consent authority was informed.
On 15 July 2016 GTA for the stage 3 consent were issued ("stage 3 GTA").
On 26 April 2017 (by notice of determination dated 9 May 2017) the stage 3 development consent was granted for subdivision of part of the land into 111 lots and associated works ("stage 3 consent"). The development approved by the stage 3 consent included works to be carried out within 40m of waterfront land (again as defined by the WMA).
The stage 3 consent was the first time that the works comprising drainage line A and the culvert were the subject of development consent. The stage 3 consent was modified twice, the most recent on 27 May 2018 without any change to the works for drainage line A and the culvert.
Condition 67 of the stage 3 consent stated that: Prior to the issue of a Construction Certificate, the following information is to be submitted to Council for review • Council should be given the opportunity to review and approve the proposed GPT so that considerations of the life cycle costs can be made. The proponent should provide Council with a detailed operation and maintenance manual which includes estimated costing • Detailed construction plans including all calculations, drawings and designs which are consistent with the design parameters used in the modelling and approved concept designs from the Development Application
As part of the required "review", plans were provided to the Council (Rev D). In those plans, the invert level and location of the drainage line A culvert was shown as RL 35.848 at the headwall to the drainage line A culvert.
The civil engineering plans the subject of the stage 3 consent show drainage line A entering the riparian corridor. Drainage line A was required by the conditions of that consent to provide a conduit for stormwater flows from the future development of the University of Western Sydney. The invert level of the discharge point into the riparian corridor of drainage line A shown in the stamped development application plans is RL 36.956.
The stage 3 GTA mandated that the requirements of the stage 1 controlled activity approval with respect to the Landscape Masterplan had to be complied with.
The second controlled activity approval covering report dated 9 November 2017 noted that as part of the civil works associated with stage 1 and stage 2 of the development the respondents had carried out the "clearing and preparation of water course [sic] bed and embankments" and "rock stabilisation along water course [sic] bed" in the riparian corridor in accordance with the Vegetation Management Plan and the Landscape Masterplan. The report noted that pursuant to the stage 3 consent, the respondents were in the process of obtaining a CC for stage 3 of the development (see above at [40] and [41]).
The second controlled activity approval covering report went on to state that: Proposed future works within/nearby riparian zone Based on council issued DA consent DA 16/0566, the applicant is currently in the process of obtaining a construction certificate for stage 3 of the development (previously lot 55, now lot 128, French Street, Werrington). As part of this stage the applicant intends to complete works within riparian corridor as stipulated in the Vegetation Management Plan No. SS14-2781, Drawing No. 001, Issue E, Landscape Masterplan prepared by Site Image (NSW) Pty Ltd, dated 17/04/2014. This includes, • Planting around existing trees as recommended (shrubs and groundcover species) • Applying turf to swale as indicated • Applying planting matrix to disturbed areas within the vegetation zone As part of civil works related to stage 3, the applicant will complete works as per proposed design drawings (these works will be undertaken strictly as per the approved flood report prepared by Cardno ITC, ref: Werrington Subdivision Cnr of French Street & Great Western Highway Kingswood Civil, Flooding & Stormwater Management Report, revision 6, dated December 2011.) • Culvert extension in to [sic] the riparian zone (headwall with scour protection) • One electrical sub station (pad mounted, stabilized embankment) • Excess stormwater outlet extensions in to [sic] the riparian zone (scour protection) The applicant would like to advise that as a result of above works any of the trees identified and marked within the riparian zone will be affected. The applicant will strictly adhere to the approved Vegetation Management Plan to retain and protect existing trees and further improve vegetation within the zone. Above works are in line with the rest of the development and resemble originally proposed & DA approved drawings submitted to you as part of GTA application. Above works have been scheduled to be commenced by November 2017 upon issuing of the construction certificate and will be completed by December 2018.
The reference to the "approved flood report prepared by Cardno ITC" was a reference to the report entitled Werrington Subdivision Cnr of French Street & Great Western Highway Kingswood Civil, Flooding & Stormwater Management Report (Rev 6) by Cardno ITC ("Cardno") dated December 2011 ("Cardno report"), prepared for the stage 1 development application. Among other things, Cardno was commissioned to carry out the stormwater drainage design.
On 22 December 2017 a second controlled activity approval was issued which incorrectly referred to Lot 125 DP 1215199. On 7 February 2018 it was reissued with the correct lot reference, namely, Lot 128 DP 1215199 ("second controlled activity approval").
The second controlled activity approval was granted in respect of subdivision works subject to a condition that they be carried out in accordance with the plans and documents identified in DS5035-00005: The controlled activity authorised by this approval must be carried out in accordance with the following plan(s)/document(s) held by Crown Lands and Water Division, Parramatta Office: A. CAA-Covering-Report_09/11/2017; B. Landscape Streetscape DA Plan_#LDA-001; C. Civil Works Plan_DA Stage3_#C100; D. Statement Environmental Effects_20/06/2016_#7209538; and E. Vegetation Management Plan_Issue-E_Drawing No. 001_17/04/2014_#SS14-2781.
Two CCs were issued in relation to the stage 3 consent. The only CC which approved works in the riparian corridor was the stage 3 roads and drainage CC issued on 13 July 2018. The plans approved by this CC showed drainage line A and the culvert within a limit of works line.
It was not a matter of controversy that within the riparian corridor the stage 3 roads and drainage CC and the second controlled activity approval relevantly authorised the following works on the eastern side of the watercourse and within the limit of works line, namely, the: 1. construction of drainage line A; 2. construction of the culvert to discharge stormwater from drainage line A into the watercourse; and 3. construction of the headwall for the culvert with scour protection and minor regrading at the culvert headwall outlet as required.
Further, the approved stage 3 roads and drainage CC plans showed the limit of works line delineating a small area in the immediate vicinity of the culvert and terminating a few metres north of the culvert. The only excavation of the watercourse depicted on the approved plans was in respect of minor regrading works at the headwall of the culvert within the marked limit of works line. Nothing in the plans referred to any excavation of the watercourse north of the limit of works line.
The Council was appointed as the principal certifying authority ("PCA") for the stage 3 consent on 14 September 2018.
On 26 April 2020, the Natural Resources Access Regulator ("NRAR") sent an email in the following terms ("NRAR email"): This is to confirm that the landscape plan drawing No: LCON-000 Rev: 11 prepared By GeoScapes Pty Ltd Dated April 2020 is accepted to complement the Landscape Masterplan Plan prepared by Site Image (NSW) Pty Ltd, dated 17/04/2014 as part of condition D4859 of the two CAAs Ref: 10CX122184 & 10CX122289. This advice does not relieve the approval holder of any obligation which may exist to also obtain permission / approval / consent from any other agency who may have some form of control over the site or the proposed development.

The Impugned Works

As built, drainage line A runs from Major Tomkins Parade on the eastern side of the riparian corridor in a north westerly direction towards the watercourse. It transects the watercourse and discharges from a culvert which is located on the western side of the watercourse ("impugned works"). It passes under a sewerage pipe, the position and level of which are shown in the stage 3 roads and drainage CC.
It is accepted that both drainage line A and the culvert were constructed in accordance with the specified reduced level stated on the plans stamped as approved by the stage 3 roads and drainage CC. However, the invert level of the culvert was constructed below the existing level of the bed of the watercourse. In the absence of the channelling works, water would be unable to flow from the culvert through the watercourse.
Stage 3 works as executed ("WAE") plans show the present state of the works. The difference in levels between the stage 3 consent plans, the stage 3 roads and drainage CC plans, and the stage 3 WAE plans are as follows: Consent Existing surface Invert level Stage 3 consent RL37.324 RL36.956 Stage 3 roads and drainage CC RL36.170 RL35.850 Stage 3 WAE plans **not provided RL35.85

As a result, on 16 May 2019 the respondents excavated the watercourse to varying depths for a length of approximately 100m north (downstream) of the culvert. The purpose of the excavation was to enable stormwater to flow unobstructed from the culvert (because, as stated above, it had been constructed at a lower level than the pre-existing level of the bed of the watercourse) downstream towards the rail corridor.
The channelling works required development consent under the EPAA and were a controlled activity under the WMA.
The parties agreed on the following further facts: 1. as constructed, drainage line A and the culvert transect the channel to its western side in the manner depicted in drawing LCON-102 Rev 10; 2. as constructed, the culvert has an invert level of 35.85, which is the invert level stated on plan 170112C1.23 Rev E; 3. the channelling works are not depicted in any plan approved by the stage 1 consent or the stage 3 roads and drainage CC; and 4. further works are required to be carried out in the riparian corridor.

The Issues for Determination Narrowed Upon the Admission into Evidence of a Further Revised WAE Drawing

During the hearing the respondents sought, and were granted, leave of the Court to reopen their case to rely on a further revised WAE plan 170112C1.23 (Rev E) ("the further revised WAE plan") which certified that certain works had been carried out (see Settlers Estate). Relevantly, the further revised WAE drawing indicated that drainage line A and the culvert had been constructed to the correct height, depth, and length as approved by the stage 3 roads and drainage CC.
The effect of the receipt of the further revised WAE plan was, as the Council readily conceded, to significantly narrow the issues for determination arising from the separate questions. In particular, the allegation that drainage line A and the culvert - and the height, depth and length of the channelling works as a consequence - had been built to the wrong height, depth, and length was resolved in favour of the respondents having regard to the decision in Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404; (2014) 206 LGERA 40 (see generally the exchange at T99:41-101:07 and 103:24-104:33).
This left the issue of location. That is, whether drainage line A and the culvert (and by extension, the associated channelling works) were constructed as approved because they transected the watercourse to the west.
The Council submitted that the stage 3 consent plans approved the construction of drainage line A and the culvert terminating on the eastern side of the watercourse and not the western side. The Council further submitted that neither drainage line A nor the culvert were constructed in the location depicted in the plans certified by the stage 3 roads and drainage CC insofar as those CC approved plans showed the works on the eastern side of the watercourse, whereas drainage line A and the culvert were extended to cut across the watercourse to its western side. Furthermore, the construction of drainage line A and the culvert traversing the watercourse to its western side was not in accordance with the second controlled activity approval.
The remaining issue for determination, therefore, was whether the location of the impugned works carried out by the respondents was authorised by any of the stage 1 or 3 development consents and/or the subsequently issued CCs, or by either of the controlled activity approvals. If it was not, then, according to the Council, the development breached both the EPAA and the WMA.

Principles of Construction of Development Approvals

It is convenient at this juncture to recall the principles of construction of development approvals, including the extent of permissible incorporation of extraneous material into a consent. These were recently set out in Elanor Investors Limited v Sydney Zoo Pty Ltd (No 5) [2020] NSWLEC 93 (at [111]). Absent express repetition for the sake of brevity they are relied upon and applied here.
Two further observations must be made. First, the authorities cited thereat in Elanor do not, however, as the respondents appeared to submit, give rise to a principle that development consents are required to be construed in a practical way to facilitate the achievement of practical results. Such a contention was soundly rejected by Duggan J in Omaya Investments Pty Limited v Dean Street Holdings Pty Limited (No 5) [2020] NSWLEC 9 where her Honour stated that (at [31], citing Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd [2017] NSWCA 263; (2017) 96 NSWLR 434 at [72]): 31 The authorities cited do not create an independent rule of construction for "practical results". Rather the authorities recognise that the general principles of construction permit consideration to be given to the purpose and object of the instrument and to determine a construction that best meets that purpose by employing the usual principles of statutory construction which includes a consideration of the context and purpose of the instrument. In that respect, the fact that a development consent, or similar instrument, is prepared with practical application in mind for the undertaking of physical work by practical people may be of assistance in determining the construction of the instrument. This approach is mere recognition that the task of construction permits text, context and purpose to be considered in that exercise. The authorities do not elevate that single factor to a separate and independent requirement to be applied outside the context of the interwoven and complex considerations that apply to the task of construction: Bunderra Holdings Pty Limited v Pasminco Cockle Creek Smelter Pty Ltd at [72].
Second, neither party cavilled with the application of the rule that once issued a CC forms part of the development consent, irrespective of any inconsistency between the two instruments (Ralan (No 3)).
In Bunderra the breadth and correctness of Ralan (No 3) was affirmed (at [46] and [50] per McColl JA, [76]-[78] per Leeming JA and [213]-[214] per Payne JA). Accordingly, to the extent that there is incompatibility between the plans and drawings forming part of the CC and the plans and drawings forming part of the stage 1 and stage 3 consents, the former will prevail.

The Works Were Carried Out in the Wrong Location and in Breach of the EPAA and the WMA

The stage 3 roads and drainage CC approved plans show the works on the eastern side of the watercourse (see Rev E). The construction of the culvert and drainage line A was therefore not in accordance with the stage 3 consent when read (as required) with the stage 3 roads and drainage CC. The consent and cognate CC permitted water to be directed into, and to flow in the same direction as, the water in the creek; not to traverse the watercourse as the impugned works did.
Likewise, the second controlled activity approval clearly approved the construction of drainage line A, the culvert and the headwall on the eastern - not western - side of the watercourse and within the limit of works line. Accordingly, the construction of drainage line A and the culvert cutting across the creek to its western side was not in accordance with that approval.
To the extent that the respondents relied on the NRAR email to submit that provided that the development was in conformity with the plans and drawings referred to therein there was no breach of either the EPAA or the WMA, that email cannot assist them. As the Council correctly submitted, the terms of that correspondence did not have the effect of amending the second controlled activity approval to retrospectively approve work already carried out.
In respect of the channelling works, neither the stage 1 consent, the stage 1 CC nor the first controlled activity approval related to works in the riparian corridor, with the exception of the construction of Basin 1 and Basin 3. In other words, those planning instruments cannot be relied upon by the respondents to provide any lawful authority to carry out the channelling works in their present location.
This therefore leaves the stage 3 consent, the stage 3 roads and drainage CC, and the second controlled activity approval. Again, there is nothing in the stage 3 consent or the stage 3 roads and drainage CC that can be construed as authorising the location of the excavation works on the western side of the watercourse. The stage 3 consent, when read together with the stage 3 roads and drainage CC, permitted regrading works at the headwall of the culvert within the limit of works line only. The work carried out by the respondents was outside the limit of works line.
The excavation work was also not, contrary to the submission of the respondents, authorised by the GTA issued in relation to the stage 1 consent or the NRAR email. The stage 1 GTA were issued in response to the stage 1 development application, with proposed Basin 1 and Basin 3 as sediment control basins. The stage 1 GTA could not authorise the development comprising the channelling works which was neither sought nor approved as part of the stage 1 development application. And again, for the reasons given above, the NRAR email is of no assistance to the respondents in respect of the location of the channelling works.

Reliance on the Further Revised WAE Plan and the Landscape Masterplan

The respondents sought to rely on the further revised WAE plan and the Landscape Masterplan to submit that drainage line A, the culvert and the channelling works had not been carried out in an unlawful manner having regard to their ultimate location.
As understood by the Court, the submissions of the respondents (at times disjointed) were essentially four-fold. First, the respondents argued that if drainage line A and the culvert were constructed to the approved length then it had, of necessity, to transect the watercourse on its western side. This was because to build drainage line A and the culvert in a manner that brought it back to the eastern side of the constructed channel would have meant a reduction in the length of the drainage line by approximately 15m, which was contrary to the stage 3 roads and drainage CC drawings. Accordingly, although counsel for the respondents conceded that the stage 3 roads and drainage CC plan "shows the culvert to the east of what is described in the plan as an existing channel", other plans and drawings described the length and the position of the culvert, and "to the extent that the two are in conflict, it is the location of the culvert in three dimensions that is the defining feature" (T122:21-25).
Relying upon the further revised WAE plan, the respondents argued that the development had been certified as having been built to the constructed length (that is, at its approved chainages as depicted on the plan), the constructed heights at nominated points, and the constructed grades at various sections of the culvert between nominated points. It was therefore not possible to lawfully build drainage line A and the culvert at the location contended for by the Council and still comply with the mandated specifications as to height, grade and length. Consequently, the work could only have been carried out in its ultimate location, that is, transecting the watercourse on the western side, and accordingly was lawful.
While it may be accepted, by reference to the further revised WAE plan, that the pipe structure (drainage line A and the culvert), has been constructed to the approved length, height and grade, that plan does not, however, indicate where the pipe structure has been built.
No evidence was put before the Court to support the submission by the respondents that to lawfully build the pipe structure it had to transect the watercourse on the western side, and the difficulty with it is that when reference is made to the stage 3 roads and drainage CC, the proposed location of drainage line A and the culvert are clearly depicted on the eastern side of the watercourse. There was no evidence to suggest that the pipe structure could not be constructed in accordance with the plans as approved. And even if the respondents were correct, this did not permit them to unilaterally carry out development contrary to their authorisation to do so. If, as alleged, the development was "impossible" to carry out as approved, a modification could and should have been sought and obtained by the respondents.
The Council submitted, by way of example, that all that the respondents had to do to avoid breach was to carry out the works constituting the development at a different angle which would have permitted drainage line A and the culvert to be constructed to the correct length and in the correct location, namely, terminating to the east of the watercourse. The Court is not required to determine this issue. Rather, that the respondents elected to build drainage line A and the culvert in the manner in which they did and in the location in which they did was, in the absence of any evidence to the contrary, a matter wholly within their control. There is no evidence before the Court that would permit it to conclude that the pipe structure could not be lawfully built at the location as indicated in the stage 3 consent and the stage 3 roads and drainage CC.
This is not, as the respondents contended, to reverse the onus of proof that the Council has the burden of discharging in the proceedings. The Council must establish that the breach of the EPAA and the WMA as alleged has occurred as described in the separate questions for determination. In my opinion, the Council has done so by demonstrating that drainage line A and the culvert were constructed in a location for which there is no approval under any of the relevant consents, controlled activity approvals or CCs.
On the evidence before the Court, including the stage 3 roads and drainage CC and the further revised WAE plan, there was nothing to demonstrate that it was impossible for the respondents to have excavated and constructed drainage line A and the culvert having the approved characteristics of length, height and grade as mandated by the stage 3 roads and drainage CC approved plans, while also being constructed in the approved location.
Second, the respondents contended that drainage line A and the culvert could be built both in the approved location but also transect the watercourse to the western side because the alignment of the existing channel on the stage 3 roads and drainage CC was wrongly depicted. This could be deduced from a comparison of the plans referred to in the second controlled activity approval, including the Landscape Masterplan, and the stage 3 roads and drainage CC plans.
However, the material before the Court shows that the alignment of the watercourse has remained constant and consistent. See, for example: 1. the further revised WAE plan; 2. the second controlled activity approval covering report dated 9 November 2017, attaching photographs taken on 26 October 2017 which indicate the location of the watercourse and channel (these photographs were taken just before the first issue of the plan (Rev A) on 2 November 2017 that eventually became the stage 3 roads and drainage CC approved plan); and 3. the depiction of the existing channel as at the time the stage 3 roads and drainage CC was issued on 13 July 2018 (as evidenced by photos taken in April 2016).
In an allied submission, the respondents additionally contended that unlike drainage line A and the culvert, the watercourse was not a "building" as that term is defined within the EPAA, and therefore, it was not subject to the stage 3 roads and drainage CC certification process. As a consequence, the path of the "notional watercourse" was fixed not by the stage 3 roads and drainage CC, but by the controlled activity approvals which required compliance with the Landscape Masterplan. The path of the watercourse in the Landscape Masterplan meandered along a 3m wide pathway that differed from its pathway in the stage 3 roads and drainage CC (where it was closer to the centre of the riparian corridor). The controlled activity approvals and the stage 1 consent therefore required, "in a practical way", the alignment of the notional watercourse to be consistent with the Landscape Masterplan, which it ultimately was, albeit after the banks of the watercourse were graded so as to not obstruct flow through the riparian corridor.
Again, the difficulty with this argument is that there is no evidence that the existing channel depicted on the stage 3 roads and drainage CC approved plans is incorrect. On the contrary, and at the risk of repetition, there was evidence before the Court that there was an existing channel and watercourse in the very location indicated on the stage 3 roads and drainage CC plans, as evidenced from various photos and the second controlled activity approval covering report which described the works carried out at that time and likewise attached similar photographs taken in late October 2017.
True it is that the second controlled activity approval covering report referred to clearing and stabilisation works along the bed of the watercourse associated with stage 1 and stage 2 of the development carried out in the riparian corridor in accordance with the Vegetation Management Plan and the Landscape Masterplan while noting that the respondents were in the process of obtaining a CC for stage 3 of the development (see above at [40] and [41]).
But there was nothing in the second controlled activity approval covering report or the Cardno report referred to therein that permitted the construction of drainage line A and the culvert, together with the carrying out of the associated channelling works, in a manner that traversed the western side of the watercourse. The Landscape Masterplan and the Vegetation Management Plan were just that, namely, plans regulating the vegetation and landscaping within the riparian corridor to protect trees and further improve the flora within that zone. As the second controlled activity approval covering report plainly stated, the work referred to therein would commence "upon issuing of" a CC for the stage 3 development.
Third, the respondents argued that drainage line A and the culvert were constructed in the correct (that is, authorised) location because it was an agreed fact that, as constructed, drainage line A and the culvert transect the channel to its western side in the manner depicted on drawing LCON-102 (Rev 10). They submitted that when a comparison was made between the LCON-102 (Rev 10) drawing with the stage 3 roads and drainage CC plans (C1.03 and C1.04), the angle between the bearing of drainage line A and the boundary of the riparian corridor "are congruent in both plans at an angle that can be observed to be around 33 degrees". Upon the Court questioning the extent to which it could take notice (judicial or otherwise) of the angle in the absence of any expert, or indeed any, evidence as to the angle referred to by the respondents, the Court was invited by senior counsel for the respondents, Mr Peter Tomasetti SC, to employ a "scale ruler or protractor" to establish for itself whether the length and bearing of drainage line A was built in accordance with the stage 3 roads and drainage CC.
There are two responses to this submission: 1. first, in Class 4 proceedings the Court is neither permitted to undertake experiments with instruments to establish nor to take judicial notice of matters that ought properly be demonstrated by evidence, and in this instance, expert evidence, presumably by a surveyor. Again, contrary to the assertion of the respondents, this position does not reverse the onus of proof. The Council has demonstrated on the balance of probabilities that drainage line A, the culvert, and the associated excavation work transect the channel on the western side contrary to the stage 3 roads and drainage CC and in a manner not authorised by any approval. If the respondents had wanted to adduce evidence to the contrary, they could and should have done so; and 2. second, while it is uncontentious that the pipe structure has been built in accordance with drawing LCON-102 (Rev 10), that plan did not - because it could not - authorise or approve the construction of drainage line A or the culvert in a manner that was contrary to the existing approvals, especially the stage 3 roads and drainage CC.
Fourth and finally, the respondents appeared to argue (the submission was less than pellucid) that because plans "170112C1.19 sheets 19 to 35 revision D" were, as evidenced by correspondence in April and May 2018, accepted by the Office of Water as complementing the first and second controlled activity approvals in satisfaction of condition 67 of the stage 3 consent, which showed the construction of drainage line A as to its length and depth in the riparian corridor, this amounted to an authorisation to build the pipe structure to the height, depth, and length and therefore, location in the riparian corridor (on the premise that it had to be constructed to that specific chainage).
However, merely because the Office of Water concluded that the requirements of condition 67 of the stage 3 consent were "satisfied", does not amount to an approval to construct the pipe structure in a location contrary to the stage 3 roads and drainage CC, which it plainly was. Nor could the 'satisfaction' of the Office of Water amount to a modification of any existing approval.
In summary, therefore, in the absence of any approval to construct drainage line A and the culvert, or to undertake the associated channelling works necessary to build these structures, the respondents breached both s 4.2 of the EPAA and ss 91E and 91G of the WMA. Accordingly, the separate questions must be answered in the affirmative.

Costs

While costs ordinarily follow the event in proceedings in Class 4 of the Court's jurisdiction, it could be contended that there should be no order for costs given that many of the issues were resolved by the successful tender of the further revised WAE plan upon the first application by the respondents to reopen.
While superficially compelling, the fact remains that the Council was successful on the separate questions, and moreover, that the further revised WAE plan ought to have formed part of the respondent's original evidence in chief thereby avoiding any application to seek leave to reopen to rely upon it. It is therefore appropriate that the respondents pay the costs of the Council of the separate questions.

Orders

The separate questions must be answered in the affirmative.
The respondents are to pay the Council's costs of the hearing of the separate questions.
The exhibits are to be returned.
The matter is relisted before the List Judge for further directions on 18 September 2020.

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: 04 September 2020

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