Pittwater Council v Gerard

Land and Environment Court (NSW)|2013-07-18|Before: Biscoe J, Pain J, Sheahan J

EX TEMPORE Judgment 1This is an appeal in Class 6 of the Court's jurisdiction by the prosecutor, Pittwater Council, against an order made by the Local Court at Manly dismissing a summary charge against Mr David Gerard that he carried out development not in accordance with a development consent at 236 Whale Beach Road, Whale Beach contrary to s 76A of the Environmental Planning and Assessment Act 1979, and thereby committed an offence under s 125(1). Council's case was that on or about 14 July 2011 Mr Gerard failed to comply with condition D7 of the consent in that sediment controls were not effectively maintained. 2Such an appeal is "only on a ground that involves a question of law alone": s 42 Crimes (Appeal and Review) Act 2001, referred to in s 21A Land and Environment Court Act 1979. This formula excludes an appeal on a mixed question of law and fact: Krishna v Director of Public Prosecutions (NSW) [2007] NSWCCA 318, (2007) 178 A Crim R 220 at [46]; Ku-ring-gai Council v Steve Nolan Constructions Pty Ltd [2012] NSWLEC 258 at [26] per Pain J; Environment Protection Authority v Ravensworth Operations Pty Ltd [2013] NSWLEC 92 at [26] - [33] per Sheahan J. Nevertheless, an appeal will fail if the appellate court is satisfied that an error of law did not affect the result: Sydney Water Corporation v Caruso [2009] NSWCA 391, (2009) 170 LGERA 298 at [29]. 3On 7 October 2009 Council granted conditional development consent DA 115/09 for the demolition of the existing garage, concrete slabs landing and stairs, and construction of a new dwelling at the site subject to conditions. The site is a narrow, steep site on the high side of Whale Beach Road. Condition D7 provides: Sedimentation and erosion controls are to be effectively maintained at all times during the course of construction and shall not be removed until the site has been stabilised or landscaped to the Principal Certifying Authority's satisfaction. 4Condition C8 of the consent provides: Erosion and Sediment Management Plan is to be submitted to the Accredited Certifier or Council with the Construction Certificate application. Control over discharge of stormwater and containment of run-off and pollutants leaving the site/premises shall be undertaken through the installation of erosion control devices such as catch drains, diversion drains, energy dissipaters, level spreaders and sediment control devices such as hay bale barriers, filter fences, filter dams, sedimentation basins. Such plan is to be a [sic] accompanied by a certification from an appropriately qualified person, that the plans/details have been designed in accordance with the requirements of the N.S.W. Department of Land and Water Conservations Urban Erosion and Sediment Control manual. The plan is to include specific details required to remove clay from vehicles leaving the site so as to maintain public roads in a clean condition. 5The plan contemplated by condition C8 was certified, submitted to and accepted by Council. It has been referred to in evidence as the "site plan". It indicates that the sediment controls comprise a silt fence and hay bales across the driveway, and sand socks in the gutter between the driveway and a Council stormwater pit some distance downhill from the driveway. 6Mr Gerard was an owner/builder for the development on the site. He appeared in person in the Local Court and on this appeal. 7The evidence on the appeal is the same as the evidence before the Local Court.

Grounds of appeal 8There are three grounds of appeal: (1)The Magistrate erred in not finding that the sedimentation and erosion controls were required to be effectively maintained "at all times" in accordance with condition D7 of the consent. (2)As a result, based on the evidence before him, specifically the photographic evidence, the Magistrate erred in not finding there was a breach of the terms of the Consent for the development of the site. (3)As a result, the Magistrate's finding that "Council has not adequately discharged its onus of proving beyond reasonable doubt that there was a non compliance with condition D7, condition C8 and the ancillary conditions referred to in DA115/09" was in error.

Council's evidence 9Council's evidence in the Local Court comprised: the written and oral evidence of a Council ranger, Mr Scott Conroy; 15 photographs taken by Mr Conroy during his 10 minute visit to the site at about 9.29am on 14 July 2011; the site plan to which I have referred; and a copy of the development consent (Exhibits 1 - 4). 10In his written statement of evidence Mr Conroy said: (a)At 9.29am on 14 July 2011 he observed mud and water on the driveway of the site running into Council's stormwater gutter and then running in a southerly direction towards and into Council's stormwater pit. (b)Approaching the site from the north, he noticed muddy tyre tracks on the road including mud and water in Council's stormwater gutter (photos 1-5). (c)Walking in a southerly direction past the site, he noticed mud and water in the stormwater gutter and then entering Council's stormwater pit (photos 6-13). (d)Walking back to the front of the site he observed dirty water and mud exiting the building site and onto Whale Beach Road (photos 14, 15). (e)At the time of this inspection "there was no sediment control across the front of the property. The sediment controls were not effectively maintained at the time". (f)On returning to Council's office he read cl D7 of the development consent. (g)He then viewed a document in Council's records system sent to Council by "Private Certifiers Australia" regarding the placement of sediment control devices for the property. He said that it states that silt fences, hay bales and sand socks were to be placed across the driveway. I note that the site plan indicates that the sand socks were not confined to the driveway but would also be placed along the gutter downhill of the driveway. (h)He telephoned Mr Gerard and notified him of the issues regarding the sediment control devices not being in place. (i)As condition D7 of the development consent had not been complied with (in his view), he proceeded to issue a penalty infringement notice for the offence. 11In oral evidence Mr Conroy said: (a)The site plan (Exhibit 3) that had been submitted to Council stated that a silt fence and hay bales were to be put across the driveway of the property and also that sand socks were to be located in the gutter of Whale Beach Road. (b)That had not been done on the occasion of his visit in that there were no hay bales located across the driveway preventing sediment exiting the property and onto the gutter of Whale Beach Road. (c)There were hay bales on what he called the nature strip but not across the driveway (photo 3). I note that photo 3 shows that the "nature strip" is one side of the driveway. (d)He considered that if vehicles had to enter the site, the hay bales would be removed then replaced when the vehicle left. (e)The site plan was the erosion and sediment plan contemplated by condition C8 of the consent. 12In the cross-examination of Mr Conroy: (a)It was put to him that the hay bales had been across the driveway of the site but were stacked to the side to allow a vehicle to enter the premises for loading soil. It was also put to him that that vehicle had obviously left because there was a dirty tyre mark on the road and that photographs 1-4 showed another truck waiting to come onto the site parked nearby. (b)He agreed it was a sunny day. (c)It was put to him that there was no need to put hay bales across the drive in the 10 minutes that he was taking the photographs while waiting for a truck to come back on the site. He disagreed, saying he believed the hay bales should be put across the drive, he did not see anyone near the truck that was parked nearby and he was not even aware that the truck was for the site because there was no activity around the truck. (d)It was put to him that the edge of the stormwater pit was dry and that the sand socks were holding the mud and water in abeyance. He disagreed that the sediment was not going beyond the sand socks. 13In re-examination, Mr Conroy said that he observed muddy water in the stormwater drain. He expressed the view that it corresponded with the mud shown in photo 6 uphill of the last sand sock. Mr Gerard objected to that question. The Magistrate responded that Mr Conroy was not an expert and that not all that much weight attached to the answer. 14Mr Conroy's photographs show: (a)The silt gate open and the hay bales stacked next to the driveway. It appears that this was done to allow a truck to enter and leave earlier that morning to carry away material. (b)A truck parked nearby. Mr Gerard's evidence indicates that it was waiting to enter the site to carry away material. (c)Four sand socks in the gutter between the driveway of the site and the stormwater pit. One sand sock at the bottom of the driveway was pushed some centimetres out onto the road and appears to have been flattened by a truck passing over it. (d)Sediment in the gutter between, and banked up behind, the sand socks. (e)Water in the gutter including uphill from the site. (f)The driveway clear of sediment, suggesting that it had been cleared of sediment that morning when a truck entered to remove material. (g)Tyre tracks on the road suggesting that a truck had entered the site that morning to remove material.

Mr Gerard's evidence 15Mr Gerard told the Magistrate that: (a)It was a very difficult narrow site on the high side of Whale Beach Road. (b)They had had some of the heaviest rain ever seen in NSW at that time. (c)He was very conscious of the fact that there was a legal requirement to contain the sediment as it came down the gutter. (d)He did this by a silt fence, hay bales and sand socks, which had been put to Council by a certifier. (e)There was a further defence, a pit dug on site where the water would go in first and hopefully contain some of the sediment. Then it would flow into the silt fence and hay bales. Then if anything passed through and went into the gutter it would be stopped by the sand socks. He said the sand socks did their job as could be seen from the ranger's photographs. (f)The sand socks were always there and were cleaned three times a day by labourers on site with shovels. (g)The photos show a build up of silt against the sand socks doing their job. (h)All this was intended to stop the sediment going into the stormwater drain, not the gutter. (i)To ensure that tyre tracks entering and leaving did not carry sediment onto the road, he had labourers on site with shovels to clean up the road. (j)He considered that he had complied with the development consent conditions. 16The appellant gave oral evidence and tendered five photographs taken between 13 May and 5 July 2011 (Exhibit 5), which show works on the site, a silt fence and hay bales in place across the driveway. He was not cross-examined. He said in evidence: (a)This was a very difficult building site with an incredibly large quantity of rain that had been falling in the previous month. They went to every extreme to ensure that they complied with the sedimentary controls. They had dug a pit on the site which was the first line of defence: water went into the pit (photograph 15). (b)There were hay bales and sand socks in the gutter. His five photographs gave a clearer picture of what those hay bales did and showed them in place. (c)In addition to having the hay bales across the drive and sand socks in the gutter, he had workers on site to ensure that the gutters and road were washed and cleaned. If Mr Conroy had come later in the day he would have seen a clean road.

The Magistrate's judgment 17In an ex tempore judgment, the Magistrate identified the two alleged forms of non-compliance as, first, there was no sediment control across the property because the hay bales were not across the driveway and, secondly, the sediment controls were not effectively maintained. The Magistrate quoted condition D7 and referred to condition C8. He identified the sediment controls as a silt fence, hay bales and sand socks. He said the hay bales and sand socks were to be the main lines of defence in ensuring that sediment did not enter the stormwater gutter and the stormwater drain. The Magistrate found that the sand sock closest to the stormwater pit also collected a lot of sediment from a closer driveway than the driveway of the site. The Magistrate said that the photographs tendered by both parties spoke volumes. He referred to the standard Oxford Dictionary definition of "maintain" as being "to keep in an existing state, as of repair, efficiency or validity and to preserve from failure or decline". The Magistrate concluded his judgment as follows: It seems to me that these sand socks appear to be in some disrepair, however the fact that they appear dirty and in disrepair is a double edged sword somewhat because the state of the sand socks depicted in the photos is on the one hand suggestive of a lack of maintenance, although I accept the proposition that they were cleaned regularly, there is no evidence precisely how often they were cleaned, but on the other side of the coin, given their state of saturation, the defendant quite properly contends that they were adequately performing their task, keeping the sediment in abeyance. Given that dichotomy, in my view, notwithstanding the fact that there are some higher tracks on the roadway leading into or out of these are depending on how one views the scenario and given the nature of a very steep narrow site depicted in the photos tendered by the defendant, in circumstances where the council, without being critical of it, gave consent to the excavation and development of a site of this kind, in my view the council has not adequately discharged its onus of proving beyond reasonable doubt that there was a non compliance with condition D7, condition C8 and the ancillary conditions referred to in DA115/09 and accordingly I so find that being the case the charge is formally dismissed.

Consideration 18Council submits that there was a breach of condition D7 in three respects: (a) before the ranger's ten minute visit at about 9.30 am that morning, hay bales should have been put back across the driveway instead of being left next to the driveway (where they had been placed to allow a truck to enter and leave); (b) before the ranger's visit that morning the sand socks should have been reviewed, in particular by pushing back the sock at the bottom of the driveway which had been pushed out a little and apparently partly flattened by the truck; and (c) the sand socks should have been of a greater height if they were to be effective to stop sediment entering the stormwater system. 19Condition D7 is a more rigorous condition than the condition of consent considered in the similar case of Ku-ring-gai Council v Steve Nolan Constructions Pty Ltd [2012] NSWLEC 258 (Pain J) where a prosecution for not complying with a sediment control condition of a development consent failed. In that case it was unsuccessfully contended on appeal that the magistrate had misconstrued the condition, which required temporary sedimentary control measures to be "maintained in working order during construction works up to completion". Unlike condition D7 in the present case, it did not require such measures to be "effectively maintained at all times". 20An appeal such as this is available "only on a ground that involves a question of law alone": above at [2]. If Council is contending in the first of its grounds of appeal (above at [8(1)]) that the Magistrate erred in law in not construing condition D7 as requiring that sediment controls were to be effectively maintained at all times during the course of construction, that would constitute such a ground. However, the correctness of the contention is, to say the least, doubtful given that the Magistrate quoted condition D7. Condition D7 has to be read in the context of condition C8 to which the Magistrate also referred. The site plan that Council accepted as complying with condition C8 contemplates that sediment may reach and flow down the gutter because it provides for sediment control devices in the form of sand socks in the gutters downhill from the driveway and uphill from the stormwater pit. Given that context, the object of condition D7 is that the sediment controls be effective to prevent sediment entering the stormwater system. Under condition D7 the sediment controls had to be maintained at all times to give effect to that object in the context of this development consent. Condition D7 should also be construed as contemplating the temporary displacement of sediment control devices to the extent reasonably required to permit trucks to enter and leave the driveway to remove demolished material and to deliver construction material. 21In any case, I am satisfied that the Magistrate was correct in concluding that Council had not discharged its onus of proving non-compliance with condition D7 beyond reasonable doubt. The parties' submissions focus on whether the sediment controls were in fact effective to prevent sediment entering the stormwater system. The steepness of the site, the exceptionally high rainfall during the relevant period, the water in the gutter and the system of cleaning up sediment at the end of each day, combine to suggest that sediment from the site flowed down the driveway and entered the gutter overnight despite the silt fence and hay bales across the driveway. The Magistrate attached little weight to Mr Conroy's opinion that the muddy water he saw in the stormwater pit came from the site. I do not think it is open on appeal to depart from that conclusion. However, Council directs attention to Mr Conroy's photograph No 6, which shows the last of the sand socks located just uphill from the stormwater pit. Council submits that this shows that sediment entered the stormwater drain. I consider that there is a reasonable doubt about this. Council points to leaves shown in the photograph on the uphill side of the sand sock as well as just downhill of it, but it is possible they were blown there. The gutter between the metal perimeter of the stormwater pit and the sand sock looks shiny in part in the photograph but there is doubt that this represents sediment. In any event, the photograph does not show any sediment on the metal perimeter or grid of the stormwater pit. This suggests that the sand socks did their job. If there was any mud in the stormwater pit, further doubt as to its source arises from the Magistrate's finding that there was sediment at this sand sock from a driveway closer to it than the subject driveway, and from the fact that the stormwater pit also seems to have captured water from the gutter on its other side. 22I accept that there may be a breach of condition C7 even if sediment has not yet entered the stormwater system if the sediment controls are not effectively maintained at all times so as to be capable of giving effect to the object of preventing sediment entering the stormwater system. However, I do not consider that that was proved beyond reasonable doubt as at the time specified in the charge in this case. In addition to a silt fence, hay bales and sand socks, the sediment controls included a pit on site and workers clearing the sediment in the gutter at the end of each day, cleaning the sand socks three times a day, and clearing the road of sediment. As discussed above at [20], condition D7 permitted the hay bales and silt fence to be temporarily relocated to permit trucks to enter the driveway and carry away demolition material. At least one truck entered the site on the morning before the ranger's visit and another truck was parked nearby waiting to do the same. Any sediment on the driveway that morning had been cleared. I do not accept the submission that a breach of condition D7 is established by the fact that the hay bales were not put back across the driveway that morning before Mr Conroy's short morning visit and after the departure of a truck, given the other truck parked nearby waiting to enter the site shortly and the absence of any indication of movement of sediment from the site to the gutter since work commenced that morning. Nor do I accept that breach is established merely by the minor displacement and partial flattening by a truck earlier that morning of one sand sock at the bottom of the driveway, given the presence of the other sand socks and the cleaning of the sand socks three times per day. 23For these reasons, which expand on those expressed by the Magistrate, I am satisfied that the Magistrate was correct in concluding that Council had not proved its case beyond reasonable doubt. 24Accordingly, the appeal is dismissed. 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: 25 July 2013

(2009) 170 LGERA 298

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