plaintiff. The separate questions were answered in the affirmative. The respondents were ordered to pay the Council's costs of the hearing of the separate questions. Exhibits were to be returned, and the...
Key principles
A development consent must be read with its construction certificate where the certificate forms part of the consent; in this case the approved plans showed Drainage Line A and...
The Second Activity Approval authorised the specified drainage line, culvert and headwall works on the eastern side of the watercourse and within the limit of works line. It did...
The Stage 1 Consent, Stage 1 CC and First Activity Approval did not authorise the disputed channelling works. The Stage 3 instruments authorised only minor regrading near the...
A later NRAR email, a revised works-as-executed plan, landscape documents, or a claimed practical necessity did not themselves amend or retrospectively expand the approvals. The...
Issues before the court
Whether Drainage Line A and the culvert were constructed in a location authorised by the Stage 3 Consent and Stage 3 Roads and Drainage CC.
Plain English Summary
The Court found that the drainage works and excavation were built beyond the locations authorised by the relevant approvals. The revised as-built plan helped the respondents on questions about dimensions, but it did not establish that the works were in an approved location. The earlier approvals covered only specified works, and a later regulator email did not retrospectively expand them. The Council succeeded on the separate breach questions, and the respondents had to pay the Council's costs.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
2,679 words · generated 29/09/2026
What happened
Penrith City Council brought Class 4 civil enforcement proceedings against four respondents connected with a staged residential subdivision at Werrington. The dispute concerned works in a riparian corridor, Lot 129 in DP 1215199. The respondents had constructed Drainage Line A and a culvert, and had excavated an existing watercourse downstream of the culvert. The central question was whether those works were in the locations permitted by the planning and water-management approvals.
Whether construction of Drainage Line A and the culvert complied with the controlled activity approvals.
Whether the channelling works were authorised by the Stage 1 or Stage 3 planning instruments or activity approvals.
Whether the NRAR email or other plans authorised or retrospectively approved the impugned works.
Cited legislation
No linked legislation citations have been extracted yet.
Rather than determine the whole enforcement proceeding at once, the parties agreed to separate questions focused on breach. The judgment records that the proceeding could not be completed in its allocated time and that the parties expected to agree on a remedy if breach were established. In the event, the hearing took five days. The Court was therefore deciding whether the identified works contravened the approvals, not what remedial outcome should follow.
The relevant planning history involved Stage 1 and Stage 3 development consents, construction certificates, and controlled activity approvals under the Water Management Act 2000. The Stage 1 Consent, granted in 2013, approved subdivision works including specified sediment control basins. The judgment found that no Stage 1 consent plan described Drainage Line A, the culvert, or excavation of the watercourse. The Stage 3 Consent, granted in 2017, was the first development consent to address Drainage Line A and the culvert. The Stage 3 Roads and Drainage CC, issued in 2018, included plans showing the drainage works on the eastern side of the watercourse.
The respondents’ works did not remain on that side. As constructed, Drainage Line A crossed the watercourse and discharged from a culvert on its western side. In May 2019, the respondents excavated the watercourse downstream for about 100 metres so stormwater could flow from the culvert. The court record also describes the channelling works as approximately 120 metres in the agreed definitions of the separate questions. The judgment’s outcome turned on the location and scope of the approvals, not on choosing between those descriptions of length.
During the hearing, the respondents were permitted to reopen their case and tender a further revised works-as-executed plan. The plan narrowed the dispute: the Council accepted that it resolved allegations about the height, depth and length of the pipe structure. But the plan did not show where the structure had been built. The remaining issue was whether the works’ location, crossing the watercourse to the west, was authorised.
The Court answered both separate questions in the affirmative. It found that the construction of Drainage Line A and the culvert, and the channelling works, were not authorised by the relevant instruments. It ordered the respondents to pay the Council’s costs of the separate-question hearing.
Why the court decided this way
The Court began with the statutory requirements. Section 4.2 of the Environmental Planning and Assessment Act 1979 provides that where development requires consent, it must be carried out in accordance with the consent and the relevant instrument. Sections 91E and 91G of the Water Management Act 2000 concern controlled activities carried out otherwise than as authorised and contraventions of approval terms or conditions. The parties did not dispute that the drainage works and channelling works required consent or were controlled activities.
The Court then applied principles about how development approvals are construed. It relied on Elanor Investors Limited v Sydney Zoo Pty Ltd (No 5) [2020] NSWLEC 93 for the stated principles of construction, and emphasised that the authorities do not create a separate rule to interpret consents in whatever way achieves a practical result. Rather, text, context and purpose are considered together. The practical setting in which works will be carried out may assist that ordinary interpretive task, but does not displace it.
The construction certificate mattered because, as the Court noted, the parties did not dispute that an issued construction certificate forms part of the development consent. Relying on Burwood Council v Ralan Burwood Pty Ltd (No 3) and Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd, the judgment stated that where plans in the construction certificate are incompatible with consent plans, the construction certificate plans prevail. The Stage 3 Roads and Drainage CC plans showed Drainage Line A and the culvert on the eastern side. The works crossed the watercourse to the western side. On that comparison, the works were not in the approved location.
The Second Activity Approval independently supported the same conclusion under the water-management legislation. It authorised the drainage line, culvert and headwall works on the eastern side and within a defined limit of works line. The Stage 3 plans showed only minor regrading around the culvert headwall within that line. They did not show the channel excavation carried out further downstream. The Stage 1 instruments did not fill that gap: their relevant riparian-corridor approvals concerned specified basins, not the later drainage line, culvert and channelling works.
Several respondents’ arguments did not overcome the location evidence. First, the revised WAE plan showed characteristics such as length, height and grade, but did not establish the structure’s location. The respondents argued that building to those characteristics necessarily required crossing the watercourse. The Court found no evidence that construction in the approved location was impossible. It said that, even if the respondents considered the approved works impossible to carry out, that would not allow them to construct contrary to the approvals without obtaining a modification.
Second, the respondents relied on the Landscape Masterplan and other documents to contend that the watercourse alignment differed from that shown in the Stage 3 Roads and Drainage CC. The Court was not persuaded. It referred to photographs and approval material indicating that the existing channel was in the location depicted on the Stage 3 plans. It also considered the landscape and vegetation documents to regulate planting and vegetation, not to authorise a different location for drainage infrastructure or excavation.
Third, the respondents invited the Court to use a scale ruler or protractor to compare drawings and infer that the works had been constructed on an authorised bearing. The Court declined. It considered the question one that should be established by evidence, potentially expert evidence, rather than by the Court’s own experiment with measuring instruments. This was not treated as a reversal of the Council’s burden. The Council had, in the Court’s view, established the location discrepancy on the balance of probabilities.
Finally, the NRAR email did not retrospectively amend the Second Activity Approval. The email accepted a landscape plan as complementing a Landscape Masterplan, while expressly not relieving the approval holder of any separate approval requirement. The Court found that it did not authorise work already carried out in a location inconsistent with the approvals.
Before and after state of the law
This judgment applied existing principles rather than announcing a new general test. Before the decision, the cited authorities already treated the construction of development approvals as an exercise involving the text, context and purpose of the instrument. The Court relied on Elanor Investors for those principles and quoted Omaya Investments’ explanation that “practical results” are not a freestanding interpretive rule. Practical considerations can assist in understanding an instrument’s purpose and application, but cannot displace ordinary construction principles.
The judgment also applied the existing rule, accepted by both sides, that an issued construction certificate forms part of a development consent. It said that Bunderra affirmed the breadth and correctness of Ralan (No 3), including the proposition that construction certificate plans prevail where they are incompatible with consent plans. The significance here was concrete: the approved construction certificate plans were central to identifying the authorised location.
The decision’s contribution in this case is its application of those principles to a layered set of approvals. The respondents relied on a combination of consents, construction certificates, controlled activity approvals, landscape documents, as-built plans and later correspondence. The Court examined what each instrument actually approved and did not treat related documents as interchangeable sources of authority. In particular, it distinguished evidence about dimensions from evidence about location: a plan confirming length and levels did not establish that the works were in the authorised place.
The judgment also illustrates that a later email or an approval-related document does not necessarily vary an existing approval. The Court found that the NRAR email did not amend the Second Activity Approval retrospectively. It did not formulate a universal rule for all regulator correspondence; its conclusion concerned the terms and effect of this email and the approvals before it.
Nothing in the judgment itself establishes how later courts have treated its reasoning. The case material supplied here identifies no subsequent decisions. Accordingly, the before-and-after account should be confined to the judgment’s application of the cited authorities, rather than suggesting a later change in the law.
Key passages with plain-English translation
The source text does not display a consistent numbered paragraph sequence for the judgment’s own paragraphs. The references below therefore identify passages by subject rather than assigning paragraph numbers that are not available in the supplied text.
“The authorities do not create an independent rule of construction for ‘practical results’.”
In plain English, the court does not interpret a consent simply to make a developer’s chosen construction work out. It reads the instrument using the ordinary tools of text, context and purpose. Practical realities may help with that task, but they are not a separate trump card.
“The former will prevail” where construction certificate plans and consent plans are incompatible.
The judgment states that the construction certificate forms part of the consent and, if the plans conflict, the construction certificate plans prevail. Here, those plans showed the drainage works on the eastern side of the watercourse.
The revised WAE plan “does not, however, indicate where the pipe structure has been built.”
In plain English, evidence that the pipe met approved engineering dimensions did not answer the separate question of whether it was built in the approved location. The Court treated location as a distinct compliance issue.
“If, as alleged, the development was ‘impossible’ to carry out as approved, a modification could and should have been sought and obtained.”
This explains why the Court rejected the argument that a perceived engineering difficulty made the different location lawful. The judgment’s reasoning was that the existence of an approval did not permit the developer unilaterally to carry out different works.
“The NRAR email cannot assist them.”
The Court concluded that the email did not amend the Second Activity Approval or retrospectively authorise work inconsistent with it. The email itself said that it did not remove any obligation to obtain approval from another agency where required.
“The Council has demonstrated on the balance of probabilities” that the works crossed the channel contrary to the construction certificate and without approval.
This states the Court’s view of the evidence and burden in the separate-question hearing. The Court did not say the burden had shifted to the respondents; it said the Council had proved the alleged location breach.
What fact patterns trigger this precedent
The reasoning is most directly relevant to disputes where a development is carried out under several related but distinct instruments, such as a development consent, a construction certificate, and a controlled activity approval. The case shows the importance of asking what each instrument actually authorises, rather than assuming that approval of one part of a staged development covers later works in the same general area.
A particularly relevant pattern is where the dispute concerns the location of works, while their engineering dimensions are separately documented. This judgment treated location as an independent matter. An as-built plan showing that works meet an approved length, height or grade will not necessarily establish that the works occupy an approved alignment.
The reasoning also concerns works that go beyond the line or area shown in approved plans. Here, the Stage 3 instruments allowed limited regrading at the culvert headwall within the limit of works line, while the actual excavation extended downstream. For other matters, whether an approval’s drawings set a boundary would depend on the particular plans and approval wording.
The decision may also be relevant where a party relies on landscape plans, supporting reports or regulator correspondence to establish authority for physical works. The Court examined those materials in context and concluded that the documents before it did not approve the disputed location. That is not a ruling that such documents can never affect an approval; the decision rests on the particular terms and records in this case.
Finally, the judgment is pertinent where a party argues that approved works could not practically be built as drawn. The Court rejected the claim on the evidence before it and stated that a claimed impossibility did not justify unilateral departure from the approvals. It also emphasised that technical or survey matters should be supported by evidence rather than judicial measurement of plans.
How later courts have treated it
The supplied judgment contains no decisions subsequent to 4 September 2020 discussing or applying Penrith City Council v Settlers Estate Pty Ltd (No 2). Its later treatment therefore cannot be established from the source material provided.
The judgment itself relies on earlier authorities. It applies the development-approval construction principles discussed in Elanor Investors Limited v Sydney Zoo Pty Ltd (No 5) [2020] NSWLEC 93. It follows the explanation in Omaya Investments Pty Limited v Dean Street Holdings Pty Limited (No 5) [2020] NSWLEC 9 that there is no independent “practical results” rule. It also relies on Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd and Burwood Council v Ralan Burwood Pty Ltd (No 3) for the treatment of construction certificate plans in the development consent context.
The judgment refers to Penrith City Council v Settlers Estate Pty Ltd [2020] NSWLEC 99 in explaining the hearing history, including the time taken and the manner in which the respondents conducted the matter. It does not describe that decision as establishing the substantive approval principles decided here.
Any account of subsequent judicial treatment would require later judgments or legal sources not included in the supplied material. This analysis therefore does not claim that the decision has been followed, distinguished or reconsidered after it was delivered.
Still-open questions
The judgment determined breach on agreed separate questions, not the full set of issues in the civil enforcement proceeding. It ordered further directions, so the remedy and any remaining matters were left for later consideration. The decision does not state what final remedial orders, if any, were ultimately made.
The judgment does not resolve every possible question about the effect of approvals in a staged subdivision. Its conclusion was tied to the documents and evidence before the Court: the plans showed the approved location, and the constructed works crossed the watercourse. A different set of plans, express approval wording or amendment history could present a different construction question.
The decision also does not establish a general rule about every regulator email or every landscape plan. It found that this particular email and these particular plans did not amend the relevant approvals or authorise the impugned works. The legal effect of other correspondence would depend on its source, wording, statutory setting and connection to the approval instruments.
There is a further evidentiary point. The Court considered that a survey or other expert evidence could have been relevant to the claimed alignment and bearing of the works, but it did not have such evidence in the form the respondents’ submission required. The judgment does not decide what particular expert evidence would be sufficient in a future case.
Finally, the judgment’s discussion of costs is confined to the separate-question hearing. It recognised that the revised WAE plan narrowed issues in the respondents’ favour, but ordered costs for the Council because it succeeded on the questions and considered that the plan should have been part of the respondents’ original evidence. It does not determine costs for the entire enforcement proceeding.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Catchwords
(2017) 96 NSWLR 434
Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404
Judgment (16 paragraphs)
[1]
Solicitors:
HWL Ebsworth Lawyers (Applicant)
Colin Biggers & Paisley Lawyers (First to Fourth Respondents)
File Number(s): 2020/170844
[2]
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).
After some discussion, it was agreed that the following separate questions ought to be determined prior to any other issue in the proceedings:
The following questions adopt the below definitions for ease of reference:
Riparian Corridor means Lot 129 in DP 1215199;
Drainage Line A means the drainage line marked drainage line A in the Stage 3 Consent and the Stage 3 Roads and Drainage CC;
Culvert means the stormwater culvert located at the end of Drainage Line A;
Channelling Works means excavation of the unnamed watercourse on about 16 May 2019 to varying depths from the Culvert towards the railway corridor to the north for a length of approximately 120 metres;
First Activity Approval means Approval No 10 ERM2011/0587 as extended by Approval No 10CX122184;
Second Activity Approval means Approval No 10CX122289;
Works means the construction of Drainage Line A, Culvert and the Channelling Works;
Stage 1 Consent means the development consent granted to DA11/0546 on 26 April 2013 (as modified on 17 February 2014 and 27 May 2015); and
Stage 3 Consent means the development consent granted to DA16/0566 on 9 May 2017 (as modified on 23 January 2018).
1. Was the construction of Drainage Line A and the Culvert carried out in breach of:
(a) s 4.2 of the Environmental Planning and Assessment Act 1979 by carrying out the development not in accordance with the Stage 3 Consent, which includes the Stage 3 Roads and Drainage CC; and/or
(b) ss 91E or 91G of the Water Management Act 2000 by carrying out the controlled activity not in accordance with the First Activity Approval and/or the Second Activity Approval.
2. Were the Channelling Works carried out in breach of:
(a) s 4.2 of the Environmental Planning and Assessment Act 1979 by carrying out the development not in accordance with the Stage 1 Consent and/or the Stage 3 Consent; and/or
(b) ss 91E or 91G of the Water Management Act 2000 by carrying out the controlled activity not in accordance with the First Activity Approval or the Second Activity Approval.
Relevantly, s 4.2 of the Environmental Planning and Assessment Act 1979 ("EPAA") provides that:
4.2 Development that needs consent
(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless -
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.
(2) For the purposes of subsection (1), development consent may be obtained -
(a) by the making of a determination by a consent authority to grant development consent, or
(b) in the case of complying development, by the issue of a complying development certificate.
Sections 91E and 91G of the Water Management Act 2000 ("WMA") proscribed that:
91E Carrying out controlled activity without, or otherwise than as authorised by, a controlled activity approval
(1) A person -
(a) who carries out a controlled activity in, on or under waterfront land, and
(b) who does not hold a controlled activity approval for that activity,
is guilty of an offence.
…
(2) The holder of a controlled activity approval who carries out a controlled activity in, on or under waterfront land otherwise than as authorised by the approval is guilty of an offence.
…
91G Contravention of terms and conditions of approval
(1) A person (other than the holder) who uses water, constructs or uses a water management work or carries out a controlled activity or an aquifer interference activity, pursuant to an approval is guilty of an offence if the person contravenes any term or condition of the approval.
…
(2) If any term or condition of an approval is contravened by any person, each holder of the approval is guilty of an offence.
…
(3) It is a defence to a prosecution under subsection (2) if the accused person establishes -
(a) that the contravention of the term or condition was caused by another person, and
(b) that the other person was not associated with the holder at the time the term or condition was contravened, and
(c) that the holder took all reasonable steps to prevent the contravention of the term or condition.
A person is associated with the holder for the purposes of this subsection (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the holder.
It was not in dispute that the construction of both drainage line A and the culvert was work that required development consent under the EPAA and were controlled activities under the WMA. They were neither exempt nor complying development.
For the reasons that follow all questions must be answered in the affirmative.
[3]
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.
[4]
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.
[5]
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.
[6]
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.
[7]
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.
[8]
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
[9]
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.
[10]
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.
[11]
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.
[12]
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.
[13]
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.
[14]
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.
[15]
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.
[16]
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
The separate questions were answered in the affirmative. The respondents were ordered to pay the Council's costs of the hearing of the separate questions. Exhibits were to be returned, and the matter was relisted before the List Judge for further directions on 18 September 2020.
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.
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 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.
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.