Queanbeyan-Palerang Regional Council v O'Connell [2021] NSWLEC 19 | Case summary

Queanbeyan-Palerang Regional Council v O'Connell [2021] NSWLEC 19 | Case summary | Zoe

[4]

Background

In its amended summons filed with leave of the Court on 23 December 2020, Council seeks the following orders: "1 A declaration that the Respondent has failed to comply with the Notice of Preventative Action given to him by the Applicant pursuant to s.96 of the Protection of the Environment Operations Act 1997 (POEO Act) dated 6 March 2017 in relation to land described as Lot 25 DP 1141290 and known as 143 Birchmans Grove, Wamboin in the State of New South Wales (the Land). 2 A declaration that the Respondent has failed to comply with the Emergency Stop Use Order given to him by the Applicant pursuant to s.9.34 of the Environmental Planning and Assessment Act 1979 (EPA Act) dated 1 August 2018. 3 A declaration that the Respondent is using the Land or causing or permitting the Land to be used as a waste facility without lawful authority, in breach of s.144 of the POEO Act. 4 A declaration that the Respondent has carried out the following development, or allowed or permitted the following development to be carried out, on the Land in breach of s.4.3 of the EPA Act: a. the use of the Land as a waste disposal facility; b. the use of the Land for disposal of waste by landfill; or c. the use of the Land for disposal of Materials. 4A In these orders Materials means waste and other materials, including soils, bricks, concrete, plastics, small and large rocks, metals, vegetation, slabs of concrete and asphalt, fibrous sheet fragments, and builders waste. 5 An order that the Respondent immediately cease using the Land as a waste facility and/or a waste disposal facility and/or for the disposal of waste and/or for the disposal of Materials. 6 In the alternative to orders 4 and 5, a declaration that the Respondent has carried out earthworks, or allowed or permitted earthworks to be carried out, on the Land without development consent in breach of s.4.2 of the EPA Act. 7 An order that the Respondent, within 28 days: a. install and maintain erosion and sediment controls to contain the movement of sediment off the Land as shown on the plan at Attachment A and detailed in the extract of Managing Urban Stormwater: Soils and Construction - Volume 1 (4th edition - March 2004) ISBN 0-9752030-3-7 (the Blue Book) at Attachment B as follows: i. a sediment fence as described at 6.3.7 and detailed at SD 6-8 in the Blue Book; and ii. a stabilised site access as described at 6.3.9 and detailed at SD 6-14 of the Blue Book. 8 An order that the Respondent, within three months, remove all Materials and other waste from the Land. 9 An order that the Respondent, within one year, restore the Land as near as possible to the condition it was at or around 9 June 2015. 10 An order that the Respondent pay the Applicant's costs of these proceedings. 11 Such further or other orders as the Court thinks fit."

[5]

Procedural history leading to the 3 December 2020 hearing

The proceedings having commenced by summons filed 15 April 2020, by notice of motion filed 7 May 2020, Council sought an order pursuant to r 10.14 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') for substituted service upon Mr O'Connell, allowing documents to be served upon Mr O'Connell in connection with the proceedings by way of email. Orders granting substituted service were made by Moore J on 15 May 2020 ('the substituted service order').
Despite having attended a mediation with Council before a Commissioner of the Court on 20 July 2020, Mr O'Connell has not appeared since at any hearings (for directions or otherwise) before the Court.
At the commencement of the substantive hearing facilitated by MS Teams on 3 December 2020, Ms Hammond informed the Court that it was anticipated that Mr O'Connell would not attend. To confirm whether Mr O'Connell would attend the hearing, Mr O'Connell was called three times outside the Court and Council's solicitors were requested to attempt to make further contact with Mr O'Connell.
Following a brief adjournment to allow this to take place, the Court was informed by Ms Hammond that a telephone conversation had taken place between Council's solicitors and Mr O'Connell. During the conversation, Mr O'Connell had indicated that he was unaware of the hearing occurring on that day. He had also indicated that he had been unwell and was not able to participate in the hearing by MS Teams or by telephoning into the courtroom (although he was able to accept telephone calls).
I considered and dealt with the telephone conversation between Council's solicitors and Mr O'Connell (and Mr O'Connell's non-appearance at the hearing) by giving certain directions to facilitate further contact with Mr O'Connell and then took a further short adjournment to allow this to take place. I directed Council's solicitors to attempt to contact Mr O'Connell by telephone (or otherwise) during the further adjournment, with the purpose of: 1. informing him that, if it was his intention to seek an adjournment of the hearing, he would be required to seek that adjournment by way of an application to the Court; 2. informing him that any such application to the Court would need to be made in person by attending the hearing facilitated by MS Teams or by telephone before 11.15am on that day; and 3. providing him with a telephone number which was connected directly into the courtroom (with a corresponding Meeting ID number) and an email containing a link to the hearing facilitated by MS Teams.
By 11.15am, there had been no further communication from Mr O'Connell. Council's solicitors provided the Court with evidence in relation to the attempts which had been made to contact Mr O'Connell during the further adjournment, in accordance with my directions.
Given these circumstances, and to the extent to which it could be said that Mr O'Connell's earlier conversation with Council's solicitors was in fact an application for adjournment of the hearing or a suggestion that he was unaware of the hearing, I considered Council's evidence (detailed further below) in relation to the service of material in these proceedings (including in relation to the hearing), and the hearing proceeded in the absence of Mr O'Connell on an ex parte basis.
Council submitted that it had done everything it could to ensure Mr O'Connell was aware of the proceedings involving him and the commencement of the hearing on 3 December 2020 and opposed any adjournment of the proceedings. Council read the affidavit of Bruce Ronald Chalmers, affirmed 2 December 2020 (the 'Chalmers First Affidavit'). Mr Chalmers is one of Council's solicitors, and the Chalmers First Affidavit detailed the contact Mr Chalmers had, and sought to have had, with Mr O'Connell since the substituted service order was made on 15 May 2020. Mr Chalmers deposed to 15 separate instances where he had either attempted to contact, or has contacted, Mr O'Connell in relation to these proceedings, and specifically the hearing set down for 3 December 2020. An overview of this contact follows.
On 12 October, 15 October and 5 November 2020, materials and information relating to the proceedings were sent by way of email to Mr O'Connell. No responses were received from Mr O'Connell.
On 11 November 2020, Mr Chalmers telephoned Mr O'Connell to ask whether he had received his email of 5 November 2020. During the telephone conversation Mr O'Connell stated he had not seen any materials and did know about the hearing on 3 December 2020. Mr O'Connell stated that he had not changed his email address. At Mr Chalmers' request, Mr O'Connell indicated that he would "look" at his email and "get back to" Mr Chalmers, but no response was received.
On 12 November 2020, Mr Chalmers provided Mr O'Connell by way of email with access to further material relating to the proceedings (including electronic versions of the draft court book and evidence book). No response was received from Mr O'Connell.
On 16 November 2020, Mr Chalmers telephoned Mr O'Connell on two occasions with the intention of asking him if he had received his email of 12 November 2020. The first telephone call was terminated by the receiving party after the call was answered and Mr Chalmers asked if it was Mr O'Connell. Shortly thereafter, Mr Chalmers telephoned Mr O'Connell and the telephone call was not answered, resulting in Mr Chalmers leaving a voice message for Mr O'Connell.
Further emails were sent to Mr O'Connell on 16 November, 19 November and 25 November 2020 in relation to finalising and then serving the court book and evidence book, and attendance at the pre-trial mention listed on 26 November 2020. No responses were received from Mr O'Connell.
On 25 November and 26 November 2020, Mr Chalmers sent Mr O'Connell text messages regarding the pre-trial mention. No responses were received. Following the pre-trial mention on 26 November 2020, Mr Chalmers sent Mr O'Connell a further email enclosing a letter reporting on the outcome of the pre-trial mention and a further text message on 27 November 2020 to alert Mr O'Connell to the email. Again, no responses were received.
Finally, on 1 December 2020, Mr Chalmers telephoned Mr O'Connell with the intention of reminding him of the hearing listed on 3 December 2020, whereby the telephone call was "picked up", but then terminated by the receiving party.
I note that a review of the Chalmers First Affidavit indicates that reference was made to the hearing on 3 December 2020 in correspondence between Mr Chalmers and Mr O'Connell on 5 November, 12 November, 19 November, 25 November and 27 November 2020.
Having considered the above circumstances, I was satisfied that Mr O'Connell had been served with the material and information related to these proceedings in accordance with the order for substituted service and had been made aware of the hearing listed on 3 December 2020. Further, to the extent that there was an informal application for an adjournment made by Mr O'Connell during his telephone conversation with Council's solicitors on the morning of the hearing, I dismissed any such application. I considered that it was appropriate to proceed with the hearing facilitated by MS Teams on an ex parte basis. I gave short oral reasons reflecting what I have summarised above, and the hearing commenced in the absence of Mr O'Connell.

[6]

Procedural history leading to the 23 December 2020 hearing

At the hearing on 3 December 2020, Council relied upon extensive evidence comprising six affidavits (detailed later in this judgment) and associated historical documentation in a detailed bundle of documents styled "Evidence Book" comprising approximately 1,000 pages, as well as written and oral submissions.
At the completion of the hearing on 3 December 2020, I expressed some concern as to the form of, and particularity of, the mandatory injunctive relief then sought by Council. Although I reserved my decision, I gave Council leave to file further short submissions, within seven days, in relation to the precise injunctive relief sought (on the basis that a copy of any submissions would be served on Mr O'Connell).
Council informed the Court (and Mr O'Connell by email) on 10 December 2020 of its intention to seek to reopen its case and amend its summons. By notice of motion filed 16 December 2020, Council made an application to amend the summons filed 15 April 2020 and to reopen its case to file and rely on further evidence regarding erosion and sediment control relating to the amendment of the summons.
The purpose of the amendments to the summons was to clarify Order (7(a)) in relation to the precise injunctive relief sought. Specifically, the amendments: 1. Relocated the definition of "Materials" formerly in Order (4(c)) to Order (4A); 2. Amended Order (7(a)) to more clearly define the nature and location of the erosion and sediment controls required to be installed (including by reference to extracts from the NSW Government's "Blue Book" guidelines: Managing Urban Stormwater: Soils and Construction, vol 1 (4th Ed), March 2004, ISBN 0-9752030-3-7 (the 'Blue Book')); and 3. Amended Order (9) to require restoration of the Land to the condition as it was at or around 9 June 2015.
The concurrent application to reopen Council's case was to adduce additional evidence comprising a supplementary affidavit of Graeme Harlor, affirmed 10 December 2020, in respect of the precise injunctive relief sought in the amended summons. Mr Harlor deposed as to his observations in relation to sediment and erosion both on, and emanating from, the Land. He also deposed as to the sediment controls that Council seeks to have installed and maintained on the Land, including identifying on an aerial plan the precise location of those sediment controls.
In his further affidavit of 16 December 2020, Mr Chalmers (the 'Chalmers Second Affidavit') deposed to serving Mr O'Connell by email with a copy of the amended summons and the supplementary affidavit of Mr Harlor, and Council's further written submissions on 10 December 2020. Mr Chalmers also deposed to receiving a telephone call from Mr O'Connell on 15 December 2020 wherein Mr O'Connell acknowledged receipt of the material by making reference to the "sediment fences" that Council was seeking as part of the sediment controls and to the further relief Council was seeking including the removal of the "fill material". Mr Chalmers later emailed and sent a text message to Mr O'Connell on 16 December 2020 identifying that the matter had been listed by the Court for hearing on 23 December 2020 and detailing the precise order sought by Council in relation to erosion and sediment controls.
At the commencement of the further hearing, facilitated by MS Teams on 23 December 2020, Ms Hammond informed the Court that it was again anticipated that Mr O'Connell would not attend. Council read a further affidavit of Mr Chalmers, affirmed 22 December 2020 (the 'Chalmers Third Affidavit'), deposing to service of the notice of motion and the Chalmers Second Affidavit on Mr O'Connell. Mr Chalmers also deposed to a further attempted telephone conversation with Mr O'Connell on 22 December 2020 in order "… to remind him of the 23 December 2020 hearing" whereby the telephone call was "picked up" by the receiving party but was then was ended by the receiving party before any conversation took place. Mr Chalmers also sent a text message to Mr O'Connell reminding him of the further hearing on 23 December 2020.
I was satisfied that Mr O'Connell had been served with the notice of motion (and the further evidence sought to be relied upon by Council) and had been made aware of the further hearing occurring on 23 December 2020. In the circumstances, I granted leave to Council to amend the summons filed 15 April 2020 and to reopen to read the further affidavit of Mr Harlor. The hearing proceeded on 23 December 2020.
In addition to the above communication with Mr O'Connell, the Court (through the Registrar), provided the following notifications which were sent to the same email address as that used by Council in its communications with Mr O'Connell in accordance with the substituted service order: 1. On 24 November 2020, the Court sent an email to Council's solicitors and Mr O'Connell confirming the listings for both the pre-trial mention on 26 November 2020 and the hearing on 3 December 2020. The email confirmed the pre-trial mention would be heard via MS Teams and provided links to both the Court's COVID-19 Pandemic Arrangements Policy and the Court's MS Teams Practitioner's Fact Sheet. 2. On 25 November 2020, the Court sent a Notice of Listing email notification (generated through NSW JusticeLink ('JusticeLink')) to Council's solicitors and Mr O'Connell, notifying them of the listing of the pre-trial mention on 26 November 2020, and again included the Court's Microsoft Teams Practitioner's Fact Sheet. 3. On 27 November 2020, following the pre-trial mention on 26 November 2020, the Court sent a Notice of Orders Made email notification (generated through JusticeLink) to Council's solicitors and Mr O'Connell, which confirmed the orders made including, "[t]he hearing is confirmed to be heard via MS Teams on Thursday 3 December 2020". Subsequently, on 2 December 2020, the parties were emailed an Outlook calendar invitation containing the MS Teams link to join the proceedings in respect of the hearing on 3 December 2020. 4. On 3 December 2020, following completion of the hearing, the Court sent a Notice of Orders Made email notification (generated through JusticeLink) to Council's solicitors and Mr O'Connell, which confirmed the orders made including, "Judgment is reserved" and that "[t]he Court notes that the applicant may file and serve further written submissions within 7 days." 5. In response to Council's correspondence to the Court (and Mr O'Connell) of 10 December 2020, requesting the matter be re-listed to hear the application to reopen, on 15 December 2020, the Court informed the parties by email that the matter would be listed for hearing on 23 December 2020. 6. Following the filing of the notice of motion to reopen on 16 December 2020, the Court sent a Notice of Listing email notification (generated through JusticeLink) to Council and Mr O'Connell, notifying them of the listing of the notice of motion hearing (to be heard via MS Teams) on 23 December 2020. Subsequently, on 22 December 2020, the parties were emailed an Outlook calendar invitation containing the MS Teams link to join the proceedings in respect of the notice of motion and further hearing on 23 December 2020. 7. On 3 March 2021, the Court informed the parties by email that judgment would be handed down (by telephone link) on 11 March 2021. In addition, the Court sent a Notice of Listing email notification (generated through JusticeLink) to Council's solicitors and Mr O'Connell, notifying them of the listing for judgment. On 4 March 2021, the Court received a telephone call from a person who identified himself as "Alex O'Connell". The caller stated that he had received an email that judgment would be handed down on 11 March 2021. Subsequently, on the morning of 11 March 2020, the Court informed the parties (via email) the telephone dial-in details and associated Meeting ID to connect to the Court for Judgment.

[9]

Initial inspections

In April 2015, Mr Eichler, a Council investigation officer, conducted an initial inspection of the Land in relation to reports that earthworks were being undertaken on the Land. During the course of Mr Eichler's investigations, he received a telephone call from Mr O'Connell who advised him that he had undertaken earthworks on the Land.
Mr O'Connell became the owner of the Land on 9 June 2015.
On 11 November 2015, Mr Eichler again inspected the Land and observed that 15 stockpiles of builders waste material including plastics, bricks, concrete and other materials had been deposited on the Land since his earlier inspection in April 2015. On that day, Council wrote to Mr O'Connell noting the deposition of imported fill materials that appeared to contain waste materials; advising him that an investigation had been commenced; and requesting records relating to the importation of fill materials on the Land. No response was received to this correspondence.
On 17 March 2016, Mr Eichler again inspected the Land and observed a further 32 stockpiles of what appeared to be clean fill had been deposited on the Land since November 2015. On that day, Mr Eichler had a telephone conversation with Mr O'Connell concerning the new stockpiles, during which Mr O'Connell indicated that the new materials were "clean fill". Mr O'Connell provided, by email, information in relation to the deposited material.
On 15 February 2017, Mr Eichler again inspected the Land and observed further stockpiled materials which appeared to include soil, rocks, metals, bricks, concrete, vegetation and other material. He estimated that there were at least 60 stockpiles and that they were over 600mm in height. More particularly, he observed that there were no erosion or sediment controls in place around the stockpiles. During that inspection he had conversations with the drivers of two "tipper trucks" which were entering the Land and depositing further material into stockpiles. Mr Eichler recorded video footage of the tipper trucks in operation. The Court has viewed the video footage recorded.
On that day, Mr Eichler had a telephone conversation with Mr O'Connell during which he described what he had observed at the Land. Mr O'Connell advised that he was "…getting a DA … to put a second driveway in…" Mr Eichler then inspected Council's records for documents relating to any application for development consent. Council did not have any record of any correspondence with Mr O'Connell; or any application for development consent; or any development consent to construct a driveway on the Land; or for the Land to be used as a waste disposal facility.
On 20 February 2017, Mr Eichler again inspected the Land and observed that the stockpiles he had observed earlier remained on the Land. On 3 March 2017, during a further inspection, Mr Eichler observed earthworks being undertaken to construct what he believed to be a "dam wall" utilising the material deposited on the Land.

[10]

Notice of Preventative Action

On 8 March 2017, Council issued a Notice of Preventative Action dated 6 March 2017 pursuant to s 96 of the POEO Act ('Prevention Notice') to Mr O'Connell. The Prevention Notice was served on Mr O'Connell by post (to Mr O'Connell's last known address), by email, and by affixing it (in a plastic sleeve and envelope) to the closed front gate of the Land. The Prevention Notice, which is set out in detail below, required among other things that Mr O'Connell ensured that, first, suitable and effective erosion and sediment controls were installed on the Land to manage all exposed soil surfaces and stockpiles of waste materials by 24 March 2017; and secondly, that all imported waste materials (which were described and photographed) were removed from the Land and safely disposed of at an accredited waste facility by 7 April 2017.
The Prevention Notice stated: "A. Mr Alexander T O'Connell is the owner of a property located at 143 Birchmans Grove Wamboin, New South Wales, 2621, comprising Lot 25 of Deposited Plan Number 1141290 ("the premises"). B. On 15 February 2017 an Authorised Officer of Queanbeyan-Palerang Regional Council (the Council) observed stock piled materials including soils and rocks deposited at a location adjacent to the entrance of the premises and leading along the front fence for approximately 200 metres. Estimates of at least 60 stock piles of materials were observed. A number of photographs were obtained (Schedule 1) showing the materials in situ. During the inspection it was observed that trucks entered the premises and deposited further stock piles of the materials upon the premises. … E. A review of Council records determined that the materials had been deposited at the premises without Council's consent to use the premises as a waste disposal premises, and did not have suitably erected erosion and sediment controls in place to contain any movement of soils or waste from the waste materials. F. From observations of the materials imported it appears to contain soils and large amounts of rocks from small pieces to large boulders including small amounts of builders waste including metals, bricks and concrete. From observations it appears that the materials contain large amounts of rock which would not be suitable fill for gardens, top dressing, garden beds or other vegetative uses and as such the materials have been deemed to be waste materials. …"
The Prevention Notice directed Mr O'Connell to take preventative action in the following terms: "1.1 By Friday 24 March 2017 Mr Alexander T O'Connell must ensure that suitable and effective erosion and sediment controls are installed upon the premises to manage all exposed soil surfaces and stock piles of waste materials in accordance with "Managing Urban Stormwater- Soils and Construction, ISBN 0-9752030-3-7, Volume 1, 4th Edition, Landcom, March 2004 and Managing Urban Stormwater -Soils and Construction, Volume 2C Unsealed roads, ISBN 978 1 74122578, DECC 2008/2, January 2008". 1.2 By Friday 7 April 2017 all imported waste materials which are situated along the northern boundary of the premises indicated within the attached photograph (Schedule 2) be removed from the premises and disposed of at an accredited waste facility."
On 8 March 2017, Mr Eichler again inspected the Land and observed a "large yellow Sumitomo excavator" situated adjacent to excavations and observed excavation spoil being deposited elsewhere on the Land. On 9 March 2017, he inspected the Land again and further observed a Sumitomo excavator undertaking earthworks as well as a "Western Star tipper-truck and tipper trailer" on the Land.

[11]

Further inspections

On 16 March 2017, Mr Eichler again inspected the Land and observed that the majority of the waste materials he had earlier observed had been concentrated into one large stockpile. He observed that approximately 10 new stockpiles had been created which appeared to be generally clean of builders waste.
On 5 April 2017, Council received a development application (DA.2017.072) from O'Connell Unique Design & Construction ('O'Connell Construction') seeking development consent for a "new single level dwelling and the re-location of driveway…" on the Land. On 13 April 2017, Council sought further information from O'Connell Construction in relation to the development application.
On 27 April 2017, Council informed Mr O'Connell that it would inspect the Land by unmanned aerial drone. On 22 May 2017, Mr Eichler and other Council officers attended the Land and took photographs of the Land by aerial drone. During the inspection Mr Eichler observed that the Land was unchanged from his previous inspections, and that no sediment and erosion control measures had been put in place and that no waste materials had been removed.
The aerial photographs of the Land were processed by Council officers using a photogrammetry processing program and a geospatial application, and the volume of stockpiled material was thereby estimated. Council officers identified five main stockpile areas and estimated that approximately 1,582.0 +/- 84.8m³ of stockpiled material was present. Council officers also noted spread material on the Land, and an area of cut and fill on the Land, which were not included in the calculation of the volume of the stockpiled material.
On the basis of Council's inspections and observations, no erosion and sediment controls had been installed on the Land by 24 March 2017 and no imported waste materials had been removed from the Land by 7 April 2017, contrary to the Prevention Notice.
On 7 July 2017, Mr Eichler again inspected the Land and observed that the majority of the stockpiles of materials remained on the Land and that the stockpiles now contained concrete, vegetation and other builders waste including guttering, flyscreens, gyprock, plastic drums, and material he believed "to be asbestos".
On 26 July 2017, Council informed O'Connell Construction that the application for development consent received on 5 April 2017 had been refused due to inadequate information having been provided.
On 30 August 2017, in response to reports that further material was being deposited on the Land, Mr Eichler again inspected the Land and observed that additional material (comprising six further truckloads) had been deposited. The additional material appeared to be free of builders waste.
On 31 August 2017, Council's solicitors engaged the services of Benjamin Kendon of Robson Environmental Pty Ltd (a contaminated land consultant and asbestos assessor accredited by Worksafe NSW), to undertake an environmental and soil assessment of the stockpiled material. Mr Kendon prepared an expert report dated 30 November 2017 which was attached to his affidavit affirmed 11 February 2020, which concluded that although there was some asbestos containing material ('ACM') present, significant contamination of the Land and adjacent properties was unlikely.
Mr Kendon deposed that during his field work on the Land on 18 October 2017, he observed that "a significant proportion of the stockpiled material contained large quantities of building waste fragments including asphalt and concrete". He recommended that the large quantities of building waste material he observed be appropriately managed.
Mr Kendon deposed that "positive asbestos sheet fragments" were confirmed by laboratory testing at one location on the Land. Given this, he recommended that the stockpile containing ACM be removed and appropriately disposed of as asbestos waste, and that a site validation report be prepared and submitted to the NSW Environment Protection Authority.
On 1 September 2017, Mr Eichler again inspected the Land and observed a further five stockpiles had been deposited which contained soils mixed with large slabs of concrete and asphalt.
In December 2017, Mr Eichler ceased employment with Council and Mr Harlor became the lead investigator in respect of the Land. On 16 April 2018, Mr Harlor inspected the Land and observed (based on Mr Eichler's photographs) that no changes appeared to have occurred since Mr Eichler's last inspection. Mr Harlor undertook three further inspections on 3 May, 31 May and 13 June 2018 with no changes to the materials on the Land observed.
On 21 June 2018, Mr Harlor inspected the Land in response to a telephone conversation between Mr O'Connell and Council employees in which Mr O'Connell expressed his intention to "clean up" the Land and "put better soil on it". Mr Harlor observed that builders waste materials including fibrous sheet fragments had been deposited on the Land. On that same day Mr Harlor had a telephone conversation with Mr O'Connell during which he directed Mr O'Connell not to carry out further earthworks without development consent.
On 31 July 2018, Mr Harlor inspected the Land and observed that significant earthworks and further importation of materials had been undertaken since his previous inspection on 21 June 2018.

[12]

Stop Use Order

On 1 August 2018, Council issued an Emergency Stop Use Order dated 1 August 2018 pursuant to s 9.34 (and Item 1 of the table to Pt 1 of Sch 5) of the EPA Act ('Stop Use Order') to Mr O'Connell. The Stop Use Order was served on Mr O'Connell by registered post, by email, and by affixing it (in a sealed envelope) at the front gate of the Land.
The Stop Use Order, which is set out in detail below, indicated that it was issued because of Mr O'Connell's "…continued non-compliance and disregard for directions and previous orders given by the Council since 6th March 2017 and the environmental harm being caused by your activities on the Premises".
The Stop Use Order stated: "Authorised officers of the Council have attended the Premises for numerous inspections since 6th March 2017. On every inspection, authorised officers have observed stockpiles of materials dumped on the Premises. These materials include: soils, gravel, vegetation/weeds, bricks, concrete, broken fibro cement sheeting, plastics (including sheeting, pipes and drink containers), clay drainage pipes, timber, metals, a fence post with concrete attached, a well cap, builders' waste, red soil, granite rocks and boulders. Independent testing has also showed that there has been asbestos-containing materials dumped at the Premises. Council has determined that due to the quality of materials, and the presence of asbestos, that the materials are waste. The waste is unsightly and the dumping of the waste is causing environmental harm including noise associated with truck movements and mud from the Premises being deposited on the road by departing trucks. The Premises are therefore being used for disposal of waste and accordingly as a 'waste disposal facility' within the meaning of the [PLEP]."
The Stop Use Order also informed Mr O'Connell that "[f]ailure to comply with this [Order] is an offence under s 9.37 of the [EPA Act]" and that he had a right to appeal against the Stop Use Order to the Land and Environment Court of NSW.
The Stop Use Order specifically ordered Mr O'Connell to immediately stop conducting specified activities, as follows, on the Land: "• Cease using the Premises for the purpose of a waste disposal facility. • Cease importing any further materials on to the Premises including soils, gravel, vegetation/weeds, bricks, concrete, broken fibro cement sheeting, plastics (including sheeting, pipes and drink containers), clay drainage pipes, timber, metals, a fence post with concrete attached, a well cap, builders' waste, red soil, granite rocks and boulders."
In response to the Stop Use Order, on 9 and 10 August 2018, Mr O'Connell provided Council with information in relation to the maximum, harvestable right dam capacity for the Land, and indicated that a dam was leaking, and he was making the dam watertight and strengthening the dam wall. Despite indicating on 10 August 2018 that he would provide Virgin Excavated Natural Material ('VENM') certificates for the soil, Mr O'Connell did not provide Council with any VENM certificates.
On 17 August 2018, Council reminded Mr O'Connell that any future earthworks would require development consent. On 24 August 2018, Council advised Mr O'Connell that he had breached the Stop Use Order.

[13]

Letters Before Action and inspections

On 11 January 2019, Mr Harlor again inspected the Land and observed a significant number of stockpiles spread over a large portion of the Land.
On 21 February 2019, Council's solicitors sent a letter to Mr O'Connell by post and email detailing Mr O'Connell's failure to comply with the Prevention Notice and the Stop Use Order and other regulatory issues ('First Letter Before Action'). The First Letter Before Action stated that: 1. Mr O'Connell's failure to comply with the Prevention Notice and the Stop Use Order was a breach of the POEO Act and EPA Act respectively; 2. Mr O'Connell's conduct in undertaking earthworks without development consent amounted to a breach of s 4.2 of the EPA Act; 3. Council considers that the stockpiles of fill on the Land constituted waste, meaning that Mr O'Connell was using the Land as a waste disposal facility contrary to the requirements of the PLEP and in breach of s 4.3 of the EPA Act; 4. It is an offence under s 144 of the POEO Act to use the Land as a waste facility without lawful authority; 5. Council intended to commence proceedings to enforce compliance with the Prevention Notice and the Stop Use Order, to remedy breaches of the EPA Act pursuant to s 9.45 of the EPA Act and to remedy breaches of the POEO Act pursuant to s 252 of the POEO Act; and 6. It was a final notice seeking compliance within 21 days, or legal proceedings may be commenced.
On 11 April 2019, Council officers attended the Land and took photographs of the Land by aerial drone. The aerial photographs of the Land were processed by Council officers using a photogrammetry processing program and a geospatial application, and the volume of stockpiled materials estimated. Council officers identified the five main stockpile areas and key changes that had occurred since the previous drone flyover on 22 May 2017. Approximately 3,643.7 +/- 216.9m³ of stockpiled material was present. This was an increase of approximately 2,061.7m³ of stockpiled materials.
On 9 September 2019, Mr Harlor again inspected the Land and observed significant erosion of the levelled and graded fill material had occurred since the previous inspection.
On 23 October 2019, Council's solicitors sent a further letter to Mr O'Connell by post and email reiterating Council's concerns relating to Mr O'Connell's non-compliance with the Stop Use Order and the Prevention Notice ('Second Letter Before Action'). The Second Letter Before Action stated that Council had provided instructions to commence proceedings in the Land and Environment Court of NSW to enforce compliance with the Stop Work Order and the Prevention Notice to remedy breaches of the POEO Act and EPA Act and restrain further breaches, and provided Mr O'Connell with draft versions of court documents. The Second Letter Before Action stated that Council was providing Mr O'Connell with a "final opportunity to comply", by giving Council a signed undertaking that he would comply with the Stop Work Order and the Prevention Notice and clean up the Land within a reasonable period (nominated to be 21 days) within 5 days of the Second Letter Before Action. There was no response to this correspondence by Mr O'Connell.
On 13 November 2020, Mr Harlor again inspected the Land and observed that fragments of fibrous board were more clearly visible compared to his earlier inspections due to the erosion of topsoil which previously covered that material. Photographs taken of Mr Harlor at that time clearly show the exposed presence of significant fibrous board material. Mr Harlor also observed the lack of any sediment and erosion control measures and the effect of this upon the neighbouring property to the north. He also states that stabilisation of access on the south side of the Land would prevent further sediment pollution leaving the Land from that access.
Council documentation reveals that no development consent has been granted for any purpose that would authorise deposition and/or disposal of Materials on the Land or the earthworks that have otherwise been carried out.
Council also marshalled evidence that Mr O'Connell was a director of "AUST CAPITAL EARTHWORKS PTY LTD" which conducts a business named "ACE Contractors NSW" ('ACE Contractors') which advertises itself (through its website) stating "Ace Contractors NSW is a privately owned company, managed and directed by Alexander O'Connell" and includes a mobile phone contact number being the same number as used by Council's solicitors to contact Mr O'Connell. The material indicated that ACE Contractors was in the business of "civil construction", "plant hire" and "earthworks" and states "we take pride in being able to offer our clients complete packages including demolition, earthworks … by a fully self sufficient civil company."

[15]

Prevention Notice

Section 96 in Pt 4.3 of the POEO Act relevantly provides: 96 Preventive action (1) Application of section This section applies when the appropriate regulatory authority reasonably suspects that an activity has been or is being carried on in an environmentally unsatisfactory manner at any premises or by any person (otherwise than at premises). (2) Prevention notices The appropriate regulatory authority may, by notice in writing, do either or both of the following: (a) direct the occupier of the premises, (b) direct the person carrying on the activity (whether or not at premises), to take such action, as is specified in the notice and within such period (if any) as is specified in the notice, to ensure that the activity is carried on in future in an environmentally satisfactory manner. (3) Examples The action to be taken may (without limitation) include any of the following: … (d) ceasing to carry on or not commencing to carry on an activity, (e) carrying on an activity in a particular manner, … (h) action with respect to the transportation, collection, reception, re-use, recovery, recycling, processing, storage or disposal of any waste or other substance, (i) preparing and carrying out a plan of action to control, prevent or minimise pollution or waste, … … (4) Occupier's duty If the occupier who is given a notice is not the person carrying on the activity, the notice is taken to require the occupier to take all available steps to cause the action to be taken. …
The term "environmentally unsatisfactory manner" is defined in s 95 of the POEO Act, as follows: 95 Meaning of environmentally unsatisfactory manner For the purposes of this Part an activity is carried on in an environmentally unsatisfactory manner if: (a) it is carried on in contravention of, or in a manner that is likely to lead to a contravention of, this Act, the regulations or a condition attached to an environment protection licence (including a condition of a surrender of a licence) or an exemption given under this Act or the regulations, or (b) it causes, or is likely to cause, a pollution incident, or (c) it is not carried on by such practicable means as may be necessary to prevent, control or minimise pollution, the emission of any noise or the generation of waste, or (d) it is not carried on in accordance with good environmental practice.
Non-compliance with a prevention notice is an offence and a breach of the POEO Act: s 97 of the POEO Act; Snowy Monaro Regional Council v Cmunt [2017] NSWLEC 95 at [98]; Eurobodalla Shire Council v Gerondal (No 3) [2012] NSWLEC 46 at [21].
Under s 289(1) of the POEO Act, Mr O'Connell had a right, within 21 days of being served with the Prevention Notice, to appeal to the Land and Environment Court of NSW against the Prevention Notice. However, no appeal was lodged.
Simply stated, s 96(2) of the POEO Act provides that an appropriate regulatory authority (in this case, Council) may issue a prevention notice directing the "occupier" of a premises or "person carrying on the activity" to take "action" to ensure that an "activity" is carried on in future in an "environmentally satisfactory manner".
The provisions of s 96(1) of the POEO Act make it clear that the foundation for giving a prevention notice is a reasonable suspicion on the part of Council that an activity has been, or is being, carried out "in an environmentally unsatisfactory manner": Gerondal v Eurobodalla Shire Council [2011] NSWLEC 77 at [7]; Eurobodalla Shire Council v Gerondal (No 3) [2012] NSWLEC 46 at [19]. As set out above, that phrase is defined in s 95.
The test for determining "reasonable suspicion" under the POEO Act has been summarised in Kempsey Shire Council v Slade [2015] NSWLEC 135 at [22] in the context of a clean up notice for pollution, which identifies the following principles: "(1) The public authority must have formed a genuine suspicion that a particular person (or persons) caused the pollution incident. (2) A reasonable suspicion involves less than a reasonable belief but more than a possibility. (3) The public authority's suspicion must be reasonable in that there is some objective and factual basis for the suspicion, which would create in the mind of a reasonable person in the position of the public authority an apprehension that that person caused the pollution incident to which the s 92 clean-up order relates. A reasonable suspicion may be based on hearsay material or material that is inadmissible in evidence but it must have some probative value. (4) The objective circumstances do not have to establish on the balance of probabilities that that person in fact caused the pollution incident nor that there has in fact been a pollution incident."
These principles have been applied recently in this Court in the context of prevention notices: Hossein Yamini v The Council of the City of Sydney [2020] NSWLEC 26 at [47].
Council submits that the criteria for environmentally unsatisfactory manner in s 95(c) of the POEO Act are met. Considering the evidence before the Court, and in particular that noted at [37]-[41], [46], [51], [53], [55]-[57], [59]-[60], [70]-[71] and [73] above, I find that the criteria for carrying out an activity in an environmentally unsatisfactory manner in s 95(c) and, despite not being raised by Council, s 95(d) of the POEO Act are met, because the activity of stockpiling Materials on the Land: 1. was not carried on by means necessary to prevent, control or minimise pollution and/or the generation of waste; and 2. was not carried out in accordance with good environmental practice.
As considered later in this judgment, I am also satisfied that the Materials constitute waste for the purposes of the POEO Act. The evidence of Mr Eichler and Mr Harlor (and in particular their observations and the extensive photographic evidence) satisfies me that the stockpiling of Materials on the Land was not carried out by means necessary to prevent, control or minimise the generation of waste, for the purposes of the criteria for environmentally unsatisfactory manner in s 95(c) of the POEO Act. In fact, stockpiling the Materials on the Land was depositing and spreading waste.
The evidence of Mr Eichler is that there was no erosion or sediment controls in place around the stockpiles that were variously and consistently formed as and when the Materials were being brought onto, and deposited on, the Land. It is thus clear, and I find, that the stockpiling of the Materials was not carried out in accordance with good environmental practice, for the purposes of the criteria for environmentally unsatisfactory manner in s 95(d) of the POEO Act.
For completeness, I note that the Dictionary to the POEO Act provides that the "occupier" means the person who has the management or control of the "premises". The definition of "premises" at par (b) relevantly includes "land or a place (whether enclosed or built on or not)". I am comfortably satisfied that the Land falls within the definition of premises. I am also satisfied that Mr O'Connell was the occupier of the Land (as he was the owner of the Land and the person with management and control of the Land, and no evidence was given to the contrary: s 258(1) of the POEO Act) and the person carrying on the activity (as evidenced in his communications with Council about the stockpiling of the Materials). The "actions" required to be taken under the Prevention Notice accord with the types of actions that are contemplated by s 96 of the POEO Act.
As the occupier of the Land, this further means that Mr O'Connell had a duty to take all available steps to comply with the Prevention Notice in accordance with s 96(4) of the POEO Act.
In the above circumstances, I consider that it was reasonable for Council to have formed the view that the activity had been, and was being, carried on in an environmentally unsatisfactory manner on the Land at the time that it issued the Prevention Notice. I am also satisfied that the conduct continued after the issue of the Prevention Notice.
On the basis of the evidence before the Court, and having considered all the material and the submissions made on behalf of Council, I am satisfied that Mr O'Connell did not comply with the Prevention Notice as no erosion and sediment controls were installed on the Land and no imported waste materials were removed. Although my findings would likely satisfy Council's entitlement to relief on this ground alone, given that Council raised a number of further arguments, I will now consider these.

[16]

Use of the Land as a "waste facility"

Council also submits that apart from non-compliance with the Prevention Notice Mr O'Connell is using the Land as a "waste facility" without lawful authority contrary to s 144 in Pt 5.6 of the POEO Act. That section provides: 144 Use of place as waste facility without lawful authority (1) A person who is the owner or occupier of any place and who uses the place, or causes or permits the place to be used, as a waste facility without lawful authority is guilty of an offence. …
The Dictionary to the POEO Act provides that "waste facility" means any premises used for the storage, treatment, processing, sorting or disposal of waste (except as provided by the regulations).
As set out in Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (2019) 101 NSWLR 245; [2019] NSWCCA 174 ('Grafil') at [12], there are three elements to s 144 of the POEO Act, being: first, the person is the owner or occupier of land; second, that person uses the land, or causes or permits the land to be used, as a waste facility; and third, that use is without lawful authority.
In relation to the first element, whether Mr O'Connell is the owner or occupier of the Land has been discussed above in relation to the Prevention Notice. I am satisfied that Council has met an onus in relation to proving that Mr O'Connell is the owner and occupier of the Land.
In relation to the second element, Council submits that the Land is being used as a waste facility because it is being used for the storage or disposal of waste (where the Materials constitute waste, as discussed below at [102]). Council points to the large volumes of Materials that have been continuously brought onto the Land over the last two or more years. Council also suggests that the Materials have been disposed of from some other location and deposited on and stored on the Land.
I note that Council is not required to demonstrate that the use of the Land is for the purpose of a waste facility, only that, in the circumstances, there is such a use: Environment Protection Authority v Hardt [2006] NSWLEC 438; (2006) 148 LGERA 61 at [107]. On the basis of the nature of the Materials and the significant period for which the Land has been used for stockpiling the Materials, I am satisfied that Mr O'Connell has caused, or permitted the Land to be used, as a waste facility.
In relation to the third element, I note, as raised by Council, in Grafil Preston CJ of LEC (sitting in the Court of Criminal Appeal) considered a number of ways in which a use could be without lawful authority, including: not having a licence required by the POEO Act that authorises a scheduled activity; not complying with a notice of exemption; not complying with special requirements in respect of asbestos waste; and not obtaining or undertaking development in accordance with development consent where this is required under the EPA Act: at [31].
Pursuant to s 144(2), the onus is on Mr O'Connell to prove that he has lawful authority to use the Land as a waste facility. Council submits that it is not aware that Mr O'Connell has lawful authority. On the basis of the evidence before the Court, I do not consider that there is a basis for Mr O'Connell to assert or prove that he has lawful authority.
Given this, I consider that there has been a contravention of s 144(1) of the POEO Act in that Mr O'Connell, as the owner and occupier of the Land, has used the Land, or caused or permitted the Land to be used, as a waste facility without lawful authority.

[17]

Whether the Materials constitute "waste"

As noted above, whether the Materials constitute "waste" for the purposes of the POEO Act is relevant to both issuing the Prevention Notice and the breach of s 144 of the POEO Act.
The Dictionary to the POEO Act provides that "waste" includes: "(a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or (b) any discarded, rejected, unwanted, surplus or abandoned substance, or (c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced the substance, or (d) any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations, or (e) any substance prescribed by the regulations to be waste. A substance is not precluded from being waste for the purposes of this Act merely because it is or may be processed, recycled, re-used or recovered."
Relevant to the reference to "prescribed by the regulations" in par (d) of the above definition, cl 6(1) in Pt 1 of the Protection of the Environment Operations (Waste) Regulation 2014 (NSW) ('Waste Regulations') provides: "(1) For the purposes of paragraph (d) of the definition of waste in the Dictionary to the Act, the following circumstances are prescribed - (a) in relation to substances that are applied to land - the application to land by - (i) spraying, spreading or depositing on the land, or (ii) ploughing, injecting or mixing into the land, or (iii) filling, raising, reclaiming or contouring the land, ...."
Finally, the Dictionary to the POEO Act provides that "substance" includes matter or thing. The "environment" is defined broadly to mean components of the earth.
The Council relies on pars (a) and (b) of the definition of "waste". In particular, Council notes that the Materials are building waste which have been brought to the Land by truck and placed on the Land, and that this means they are rejected, unwanted, surplus or abandoned by the former owner. The Materials are not removed from the definition of "waste" because they are being reused or recovered by Mr O'Connell.
Although there is evidence that some of the fill was described by Mr O'Connell (in conversations with Council officers) as "clean fill", I consider that the evidence before the Court including observations of Council officers as well as the detailed photographic and video evidence, all lead to the view that the Materials display characteristics of, and fit within the definition of, waste. In particular, given the uncontested evidence of Mr Eichler and Mr Harlor, I find that pars (a), (b) and (d) in the definition of "waste" in the Dictionary of the POEO Act are met.
In terms of par (a) of the definition of "waste", I find that the Materials were deposited in the environment in such volume, constituency and manner as to cause an alteration in the environment. I take into account, first, the large volume of Materials that have been brought onto the Land since April 2015 (as noted at [49] and [70] above) and the alteration to the landscape that resulted; second, the fact that the Materials contain asbestos (as noted at [51], [54], and [56] above); third, the evidence of Mr Harlor in relation to sediment pollution being transported off the Land and onto an adjacent property and the public road; and fourth, the placement of some of the Materials near a watercourse causing risk of contamination.
In terms of par (b) of the definition of "waste", I accept Council's evidence and find that the Materials (particularly where it contains bricks, plastics, metals, slabs of concrete and asphalt, fibrous sheet fragments and builders waste) were discarded, rejected, unwanted and abandoned substances, as the Materials were excavation and building materials taken from demolition and other sites, and stockpiled on the Land.
In addition, I have considered par (d) of the definition of "waste". I accept that the Materials were processed, recycled, re-used or recovered substances produced wholly or partly from waste, and that the Materials were applied to the Land by "depositing on the land": Grafil at [153]-[157].
Given my findings above, it is relevant to note that the characterisation of the Materials as waste does not depend merely on the fact that it contains asbestos. This is particularly relevant to the issuing of the Prevention Notice prior to Council becoming aware of the presence of asbestos in the stockpile of Materials.
The evidence of Mr Kendon indicates that ACM was present in one of the stockpiles of Materials. The POEO Act and associated Waste Regulations have a specific regime that regulates asbestos and asbestos waste. For the purposes of these proceedings and the definition of waste, I am content to note the following: 1. The Dictionary to the POEO Act provides that the definition of "asbestos" and "asbestos waste" has the same meaning as it has in Sch 1 of the POEO Act; 2. Part 3 of Sch 1 of the POEO Act defines "asbestos" as the fibrous form of those mineral silicates that belong to the serpentine or amphibole groups of rock-forming minerals, including actinolite, amosite (brown asbestos), anthophyllite, chrysotile (white asbestos), crocidolite (blue asbestos) and tremolite; and, then "asbestos waste" as "any waste that contains asbestos"; 3. The Court has previously found that the definition of "asbestos waste" is met if the waste contains any asbestos, even if the asbestos is a small component of the overall volume of waste: Grafil at [325]-[329]; Environment Protection Authority (Prosecutor); Foxman Environmental Development Services (Defendant); Botany Building Recyclers Pty Ltd (Defendant); Phillip Foxman (Defendant) [2015] NSWLEC 105 at [226], [227], [231]; Pullen v Smedley [2017] NSWSC 1721 at [313]-[316]; 4. The factual circumstances in this case, with respect to the presence of asbestos in waste, are similar to those considered in Grafil where Preston J held that the amount of asbestos that the material contains, or its relative proportion to the volume of material, are not relevant to whether the material "contains" asbestos for the purposes of the definition of asbestos waste: at [325]. In Grafil, asbestos was detected in stockpiles in numerous samples and although the precise volume of asbestos was not established beyond reasonable doubt, and the amount of bonded asbestos in the stockpiles was found to be minor, and the amount of friable asbestos was found to be very small, the definition of asbestos waste was met: Grafil at [4], [309], [325]; 5. Given the evidence of Mr Kendon I am satisfied that one of the stockpiles of Materials contains asbestos which triggers the definition of "asbestos waste" in the POEO Act.
Given this, I find that one of the stockpiles of Materials on the Land also meets the definition of "asbestos waste" for the purposes of the POEO Act.
As noted above, I am satisfied that the Materials meet the definition of waste in the POEO Act, through pars (a), (b) and (d) of the Dictionary. Additionally, I note that because one of the stockpiles of the Materials is waste that contains asbestos, this constitutes asbestos waste within the meaning of the POEO Act.

[18]

Use of the Land as a "waste disposal facility"

Pursuant to s 4.3 (being previous s 76B) of the EPA Act, if an environmental planning instrument provides that a development is prohibited, a person must not carry out that development on the land. In this case, the PLEP and the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the 'SEPP') are the relevant environmental planning instruments.
The PLEP provides that the Land is zoned E4 Environmental Living. The PLEP further provides that any development in the E4 Environmental Living zone that is not specified as "permitted without consent" or "permitted with consent" is prohibited: Land Use Table, Zone E4 Environmental Living, Item 4.
Council contends that by stockpiling the Materials, Mr O'Connell has used, and continues to use, the Land for the use of a "waste disposal facility"; for "disposal of waste by landfill"; or for "disposal of the Materials", any or each of which constitutes development which is prohibited in the E4 Environmental Living zone.
"Waste disposal facility" is defined in the Dictionary to the PLEP to mean a "building or place used for the disposal of waste by landfill, incineration or other means, including such works or activities as recycling, resource recovery and other resource management activities, energy generation from gases, leachate management, odour control and the winning of extractive material to generate a void for disposal of waste or to cover waste after its disposal".
Council submits that the stockpiles of Materials on the Land are "waste" as a result of the nature of the Materials (which includes building waste and asbestos) and the large volumes of the Materials. Then, Council submits that the Land is being used for the disposal of waste by deposition, falling within the concept of disposal of waste by "other means" for the purposes of the definition of "waste disposal facility". In this manner, it is Council's position that the definition of "waste disposal facility" is sufficiently broad to capture the stockpiling of the Materials on the Land. The use of the Land as a waste disposal facility is prohibited as a result of the PLEP.
In the alternative, Council submits that if the Court is not satisfied that the definition of "waste disposal facility" is met by the stockpiling of the Materials, Mr O'Connell's use of the Land is properly characterised as "disposal of waste by landfill" or "disposal of the Materials". While these uses of the Land are not captured by a definition in the PLEP, they are prohibited innominate uses by virtue of the general provision in the PLEP providing that any development not specified as "permitted without consent" or "permitted with consent" is prohibited.
I accept Council's submission and, as considered further below, I am satisfied that the Materials are "waste" for the purposes of the PLEP, and that waste has been "disposed of" through deposition on the Land. As such, I am satisfied that the Land is being used for the "disposal of waste" and as a "waste disposal facility". I am therefore satisfied that the Land has been used for a development which is not permitted (either with or without consent) in the E4 Environmental Living zone and, as such, constitutes a prohibited use. This is contrary to the requirements of the PLEP and in breach of s 4.3 of the EPA Act.
It is not necessary to categorise the type of development that is carried on. All that matters is that development, within the meaning of that term, is being carried out on the Land which is not of a type specified as being permitted without consent or with consent. This is sufficient for the development to be prohibited. Given the disjunctive nature of Council's pleading and submissions and the orders sought, I do not need to find whether the Land was being used for the disposal of waste by landfill or the disposal of the Materials.

[19]

Undertaking earthworks without development consent

As an alternative to the submission that by stockpiling the Materials, Mr O'Connell has carried out development which is prohibited in the E4 Environmental Living zone and contrary to s 4.3 of the EPA Act, Council contends that "earthworks" have been carried out at the Land without development consent and contrary to s 4.2 of the EPA Act.
Section 4.2 (previously s 76A) of the EPA Act provides that if an environmental planning instrument provides that a certain development may not be carried out except with development consent, a person must not carry out the development unless the person has obtained a development consent, it is in force, and the development is carried out in accordance with that development consent. As noted above, the PLEP and the SEPP are the relevant environmental planning instruments for development on the Land.
The PLEP provides that carrying out "earthworks" requires development consent unless the earthworks are exempt under the PLEP or another environmental planning instrument or are ancillary to a permitted development: s 6.1(2) of the PLEP. "Earthworks" is defined in the Dictionary to the PLEP to mean "excavation or filling", with "fill" then further defined as the "depositing of soil, rock, or other similar extractive material obtained from the same or another site..." (but specifically excluding what can be summarised as minor landscaping soil and rock, and, relevantly, using land as a waste disposal facility).
Earthworks are not exempt development under the PLEP: Sch 2 of the PLEP. The SEPP provides that earthworks are exempt if the earthworks meet development standards and are not carried out at certain specified locations: cll 1.15 and 2.29 of the SEPP. Clause 2.30 of the SEPP sets out the development standards for exempt earthworks, which relevantly include that the earthworks: 1. must not "be a cut or fill of more than 600mm below or above ground level (existing)"; and 2. must be "free of building and other demolition waste" and only contain VENM if the fill is imported to the site: cll 2.30(a) and (h) of the SEPP.
Council submits that the earthworks required development consent, because they are not exempt development under the PLEP or the SEPP. Specifically, the earthworks are not exempt under the SEPP because they involved cut and fill of more than 600mm above ground level, and the fill used in the earthworks included building and other demolition waste.
I have considered the evidence before the Court in relation to the earthworks that were undertaken, and in particular the photographic and video evidence of the characteristics (including nature, style and location) of the material imported onto the Land (and the machinery present) and the extent to which earthworks have clearly been undertaken. I am also aware of the volume of material that has been deposited (as noted at [49] and [70] above). The evidence makes clear that significant parts of the stockpiles were over the height of 600mm. In addition, as I have found above, the stockpiles contained material that is clearly characterised as building and demolition waste (particularly bricks, concrete, slabs of concrete and asphalt, and builders waste).
I find that the evidence establishes that earthworks have been undertaken on the Land without development consent in circumstances where those works do not comprise exempt development (in particular, cl 2.30 of the SEPP) because the cut and fill is more than 600mm below and above the existing ground level and the fill also included building and other demolition waste. Mr O'Connell's conduct in undertaking earthworks without development consent amounted to a breach of s 4.2 of the EPA Act.

[20]

Stop Use Order

Section s 9.34 of the EPA Act provides that: "(1) The development control orders that may be given under this Act are as follows: (a) general orders in accordance with the table to Part 1 of Schedule 5, …"
The table to Pt 1 of Sch 5 of the EPA Act includes "Stop Use Order" at Item 1. The table indicates that the stop use order can be issued to the "owner of premises or building" or "the person using the premises or building", to "stop using premises or a building" or "not to conduct or to stop conducting an activity on the premises", when the premises or building is being used for specified reasons. These reasons include using the premises: first, "for a prohibited purpose"; or second, "for a purpose for which a planning approval is required but has not been obtained".
The definition of "premises" in the EPA Act relevantly includes "land, whether built on or not", and "owner" is relevantly defined, via the Dictionary to the Local Government Act 1993 (NSW), to mean every person entitled to the land for any estate of freehold in possession.
Section 9.37 of the EPA Act provides that a person to whom a development control order is given must comply with the terms of the order. Section 9.44 of the EPA Act provides that a contravention of, or a failure to comply with, a development control order is a breach of the EPA Act. A stop use order is a development control order.
In issuing the Stop Use Order to Mr O'Connell, Council characterised the use of the Land as a "waste disposal facility" as defined in the Dictionary to the PLEP. As a waste disposal facility is prohibited under the PLEP, Council issued the Stop Use Order to Mr O'Connell as the owner of the Land or the person using the Land.
In the Stop Use Order (noted at [65] above), Council required Mr O'Connell to cease using the Land for the purpose of a waste disposal facility, and to cease importing further specified material onto the Land.
As I have found above, I am satisfied that in stockpiling the Materials on the Land Mr O'Connell had been using the Land, or permitting the Land to be used, as a waste disposal facility. I am also satisfied that the Land constituted premises and Mr O'Connell was the owner of the Land for the purposes of the EPA Act and the issuing of the Stop Use Order.
I am satisfied that in requiring Mr O'Connell to cease using the Land for the purpose of a waste disposal facility, and to cease importing further specified materials onto the Land, the Stop Use Order required Mr O'Connell to stop conducting an activity on the Land.
Council submits that Mr O'Connell failed to comply with the Stop Use Order, which is a breach of the EPA Act. On the evidence before the Court, and in particular the evidence of Mr Harlor and Mr Plumb noted at [70]-[71], [73] above, I find that Mr O'Connell did not comply with the Stop Use Order as he continued to use the Land as a waste disposal facility through the storage and disposal of waste by deposition and continued to import further materials. This was a breach of the EPA Act.

[21]

Council is entitled to relief

Having considered the evidence and the submissions made on behalf of Council, I am satisfied that Mr O'Connell has failed to comply with the Prevention Notice given to him by Council pursuant to s 96 of the POEO Act. I am also satisfied that Mr O'Connell has failed to comply with the Stop Use Order given to him by Council pursuant to s 9.34 of the EPA Act.
I am satisfied that Mr O'Connell is using the Land, or causing or permitting the Land to be used, as a waste facility without lawful authority in breach of s 144 of the POEO Act and that Mr O'Connell has carried out development by using the Land, or allowing or permitting the Land to the used, as a waste disposal facility in breach of s 4.3 of the EPA Act, and has carried out development by undertaking earthworks, or allowing or permitting earthworks to be undertaken in breach of s 4.2 of the EPA Act.
In these circumstances, there remains for me to consider whether I should exercise my discretion to grant relief and if so, what relief should be granted.
The jurisdiction of the Court to grant orders in circumstances of this case is conferred by s 252 of the POEO Act, ss 9.45 and 9.46 of the EPA Act, and s 20(2) of the Land and Environment Court Act 1979 (NSW).
Section 252 of the POEO Act provides: 252 Remedy or restraint of breaches of this Act or regulations (1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations. (2) Any such proceedings may be brought whether or not proceedings have been instituted for an offence against this Act or the regulations. (3) Any such proceedings may be brought whether or not any right of the person has been or may be infringed by or as a consequence of the breach. … (6) If the Court is satisfied that a breach has been committed or that a breach will, unless restrained by order of the Court, be committed, it may make such orders as it thinks fit to remedy or restrain the breach. … (8) In this section - breach includes a threatened or apprehended breach.
Sections 9.45 and 9.46 of the EPA Act empower the Court to remedy or restrain a breach of the EPA Act. These provisions relevantly provide: 9.45 Restraint etc of breaches of this Act (1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. … 9.46 Orders of the Court (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. (2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may: (a) where the breach of this Act comprises a use of any building, work or land - restrain that use, (b) where the breach of this Act comprises the erection of a building or the carrying out of a work - require the demolition or removal of that building or work, or (c) where the breach of this Act has the effect of altering the condition or state of any building, work or land - require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed. …
It is trite to state that the Court has broad powers to make declarations and consequential orders. In F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306 at 311, Street CJ noted that the power given under the then current EPA Act to make "such order as it thinks fit" (the words appearing in both s 252(6) of the POEO Act and s 9.46(1) of the EPA Act) enabled the Court to "mould the manner of its intervention in such a way as will best meet the practicalities as well as the justice of the situation before it". His Honour continued (at 313): "… It is the duty of that Court, in formulating "such order as it thinks fit", to have regard at all times to the pursuit of the objects of the Environmental Planning and Assessment Act as set out in s 5. This involves, in appropriate cases, the evaluation of matters extending beyond the mere determination of the rights and matters in dispute between the immediate parties. It involves due weight being given to the public interest and the interests of other affected persons in the overall context of the pursuit of the objects broadly set out in s 5…"
In Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 ('Sedevcic') at 339-340, Kirby P identified nine guidelines applicable to the exercise of the Court's discretion to grant relief and make orders pursuant to the then s 124 (now s 9.46) of the EPA Act. As I have taken these guidelines into account, it is convenient for present purposes to restate a number of his Honour's observations which are of particular relevance to the circumstances of this case: "4. In exercising the discretion, it must be kept in mind that the restraint sought is not, in its nature, the enforcement of a private right, whether in equity or otherwise. It is the enforcement of a public duty imposed by or under an Act of Parliament, by which Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment. Attorney-General v BP (Australia) Ltd (1964) 83 WN (Pt 1) (NSW) 80 at 87; 12 LGRA 209 at 218. Because s 123 of the Act permits any person (and not just the Attorney-General or a person with a sufficient interest), to bring proceedings in the Court for an order to remedy or restrain a breach of the Act, there is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid: cf Attorney-General v Harris [1961] 1 QB 74 at 94; Trimboli v Penrith City Council (1981) 48 LGRA 323 and Deane J (dissenting) in Lizzio v Ryde Municipal Council (1983) 155 CLR 211. … 6. Where the application for the enforcement of the Act is made by the Attorney-General, or a council, a court may be less likely to deny equitable relief than it would in litigation between private citizens: Associated Minerals Consolidated Ltd v Wyong Shire Council (at 692). This is because the Attorney-General or the Council are seen as the proper guardians of public rights. Their interest is deemed to be protective and beneficial, not private or pecuniary: cf Rowley v New South Wales Leather Trading Co Pty Ltd v Woollahra Municipal Council (1980) 46 LGRA 250… … 7. Where the relief is sought against a "static" development (ie the erection of a building) which, once having occurred can only be remedied at great cost or inconvenience, the discretion may, in the normal case, be more readily exercised than where what is involved is a continuing breach by conduct which could quite easily be modified to bring it into compliance with the law: see Blacktown Municipal Council v Friend (at 197). But this observation is simply a reflection of the judicial perception in balancing, on the one hand, the public interest in equal compliance with the law and, on the other, the degree of irremediability occasioned by the breach and the expense or inconvenience which would follow the law's enforcement: cf Associated Minerals case (at 692). It does not amount to a hard and fast exception to the discretion. That discretion must be exercised in every case in which it is invoked. Nor is it a reason to refuse relief where no "static" development can be proved." 8. The wide discretion has been described as "an adequate safeguard against abuse of a salutary procedure": see Menzies J in Cooney v Ku-ring-gai Municipal Council (1964) 114 CLR 582 at 605; (1963) 9 LGRA 290 at 306. It permits the court to soften, according to the justice of particular circumstances, the application of rules which, though right in the general, may produce an unjust result in the particular case. Sometimes this "softening" can be achieved by postponing the effect of injunctive relief: see, eg, Woollahra Municipal Council v Carr. Sometimes that evidence will not achieve a just result. The remedy of injunction, with its powerful sanctions, is not, after all, the only remedy available to a local government authority for breaches of the Act. Criminal prosecution, with its heavier onus of proof and rigorous procedures may offer an inadequate means, in the typical case, for the enforcement of environmental law in the public interest. Furthermore the provisions of s 123 of the Act indicate an enlargement of the availability of injunction for breach of that law. However the refusal of a court to grant an injunction, in the exercise of its discretion, does not necessarily conclude the authority's remedies."
The principles in relation to the grant of declaratory relief specifically are well-established but are worth repeating. Circumstances usually include where there has been an ongoing breach; where conduct has been carried out despite a respondent being on notice of the need to comply with the law; and in order to mark the Court's disapproval of the conduct that has occurred, which is proscribed by Parliament: Blacktown City Council v Sakar (No 2) [2018] NSWLEC 71 at [92]; Inner West Council v Balmain Rentals Pty Ltd [2019] NSWLEC 24 at [36].
In Great Lakes Council v Lani; Great Lakes Council v Lani and Lampo Pty Limited [2007] NSWLEC 681; (2007) 158 LGERA 1, Preston J specifically considered the Court's position in relation to the making of declarations at [19]-[25] and his Honour's remarks have been adopted and further considered in a number of subsequent cases: Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 at [13]-[23].
In relation to injunctive relief, there are many instances where the Court has ordered demolition or reinstatement as an appropriate remedy for a breach of the EPA Act: Woollahra Municipal Council v Sahade [2012] NSWLEC 76 at [62]-[87]; Canterbury City Council v Mihalopoulos [2010] NSWLEC 248 at [47]-[51]; Glaser v Poole [2010] NSWLEC 143 at [60]-[77]; Fairfield City Council v Ly [2008] NSWLEC 322 at [22]-[26]; Sutherland Shire Council v Nader [2007] NSWLEC 363 at [17]-[27] (upheld on appeal in Nader v Sutherland Shire Council [2008] NSWCA 265).
Adopting the principles summarised above, in particular the guidelines enunciated by Kirby P in Sedevcic, and balancing the discretionary factors relevant to the exercise of the Court's discretion, I consider that declaratory and injunctive relief should be granted to Council in light of Mr O'Connell's conduct that I have identified at [92], [101], [121], [129], [136]-[138] above.
In summary, I consider the factors to be weighed include the seriousness of the breaches; the fact that the breaches are not merely technical; the continuing nature of the conduct of Mr O'Connell; the likely environmental harm caused by the breaches of the POEO Act and EPA Act; and the need for the orderly enforcement of public duties. I consider declaratory and injunctive relief is appropriate for the following reasons: 1. The breaches of both the POEO Act and the EPA Act are clearly made out on the evidence; 2. The sheer volume and extent of the importation and deposition of Materials (some 3,500m³ at April 2019) and the earthworks undertaken on the Land, without any opportunity at all for appropriate consideration, assessment or regulation by a consent authority, is significant; 3. Mr O'Connell has been on notice of the breaches and Council's ongoing concern regarding the conduct on the Land since 11 November 2015 and appears to have blatantly disregarded all attempts by Council to regularise his conduct; 4. The Prevention Notice issued under s 96 of the POEO Act and the Stop Use Order issued under s 9.34 (and Item 1 of the table to Pt 1 of Sch 5) of the EPA Act to Mr O'Connell were both served on Mr O'Connell (as noted earlier in this judgment). He was, and has remained, aware of Council's concerns raised in both the Prevention Notice and Stop Use Order, and also as a result of the detailed intercourse with Council officers and legal representatives; 5. The seriousness of the non-compliance with the Prevention Notice and Stop Use Order is augmented because of the further importation and deposition of the Materials, and the continued use of the Land despite being aware of the need for, and absence of, development consent; and 6. The making of declarations marks the disapproval of the Court of conduct that Parliament has proscribed and serves to discourage others from acting in a similar way.
The declaratory relief sought by Council is appropriate. The Court, having found that Mr O'Connell has clearly failed to comply with both the Prevention Notice and the Stop Use Order and in particular, that he has not ceased the importation and deposition of further Materials; has not ceased the use of the premises as a waste disposal facility; has not implemented suitable and effective erosion and sediment controls; and has not removed the imported waste materials, should make declarations to that effect.
In addition, I consider that the declarations would serve to declare the law and balance the regulatory objects of the EPA Act and the POEO Act. Given this, further declarations in relation to Mr O'Connell's breaches of s 144 of the POEO Act and ss 4.2 and 4.3 of the EPA Act are also appropriate.
The breaches of the POEO Act and the EPA Act are not mere technical breaches and have, in accordance with the evidence marshalled by Council, environmental consequences in that there remains a risk of environmental harm if the Materials are not removed and the appropriate sediment and erosion control measures are not implemented.
In the circumstances, given the unlawful deposition of the Materials, the appropriate injunctive relief requires cessation of Mr O'Connell's conduct, the removal of the Materials and the restoration of the ground level of the Land.
My findings also facilitate the mandatory injunctive relief sought in relation to the provision and maintenance of erosion and sediment control measures. I accept that, absent the further erosion and sediment controls considered by Mr Harlor, there will be more environmental harm.
The evidence of Mr Harlor is compelling, taking into account that he has undertaken 10 inspections of the Land between April 2018 and December 2020. In particular, I accept Mr Harlor's concerns regarding the deep erosion channels in the stockpiles and the fact that these channels have become more pronounced over time. The ongoing erosion is clearly shown in the photographic evidence before the Court. This is in addition to Mr Kendon's concerns noted at [54]-[56] above.
I am also conscious of the more recent evidence of Mr Harlor (as set out in his affidavit of 10 December 2020), that during his more recent inspections he observed that the existence of fragments of fibrous board was more visible due to the erosion of topsoil on the Land. Again, I consider that the photographic evidence is both compelling and concerning and the situation cannot be allowed to continue.
I find that an order in relation to the implementation of the erosion and sediment control works is necessary, to ensure that effective erosion and sediment controls are installed to manage sediment affecting the neighbouring property to the north, and to stabilise the access on the south side to prevent "further sediment pollution" leaving the Land from that access.
Mr O'Connell should be ordered: first, to cease the use of the Land as a waste disposal facility; second, to cease to use the Land as a waste facility; third, to install and maintain specific erosion and sediment controls; and fourth, to remove the Materials deposited and restore the ground levels of the Land. The injunctive relief I consider appropriate in relation to removal of the Materials ought to be suspended for a period of four months and an additional eight months should be allowed for restoration of ground levels of the Land to occur.
I am conscious that there has been no appearance by Mr O'Connell at the hearings. However, I accept that Council is not aware of any lawful authority under the POEO Act to use the Land as a waste facility and that Mr O'Connell has not, according to the evidence, obtained a development consent for the earthworks or any other relevant development.
I consider that Mr O'Connell is well aware of these proceedings and has deliberately chosen not to attend the hearing and contest Council's case. In these circumstances, any prejudice that he might suffer as a result of the hearing being conducted in his absence is self-inflicted. Although not determinative in my consideration, I also take into account the evidence of Mr O'Connell's obvious involvement with the earthmoving and civil construction business which advertises itself as providing "demolition and earthworks" services.
During the hearing, I had a concern relating to the delay between Council initially becoming aware of the conduct on the Land, and Council enforcing compliance with the Prevention Notice and the Stop Use Order issued as a result of Mr O'Connell's failure to attend to its concerns. However, I have formed the view that such delay is explained by Council's various attempts to engage with Mr O'Connell both by conversation and correspondence, to inform him of its concerns and, indeed, the issuance of orders to Mr O'Connell to attend to the matters about which Council remains concerned. I do not consider any such delay to amount to disentitling conduct by Council.

[23]

Orders

The Court: 1. Declares that Alexander Thomas O'Connell has failed to comply with the Notice of Preventative Action dated 6 March 2017 given to him by Queanbeyan-Palerang Regional Council pursuant to s 96 of the Protection of the Environment Operations Act 1997 (NSW) ('POEO Act') in relation to land described as Lot 25 DP 1141290 and known as 143 Birchmans Grove, Wamboin (the 'Land'). 2. Declares that Alexander Thomas O'Connell has failed to comply with the Emergency Stop Use Order dated 1 August 2018 given to him by Queanbeyan-Palerang Regional Council pursuant to s 9.34 (and Item 1 of the table to Pt 1 of Sch 5) of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act') in relation to the Land. 3. Declares that, in breach of s 144 of the POEO Act, Alexander Thomas O'Connell has used the Land, or caused or permitted the Land to be used, as a waste facility without lawful authority. 4. Declares that, in breach of s 4.3 of the EPA Act, Alexander Thomas O'Connell has carried out development that is prohibited by using the Land, or allowing or permitting the Land to be used, as a waste disposal facility. 5. Declares that, in breach of s 4.2 of the EPA Act, Alexander Thomas O'Connell has carried out development being earthworks, or allowed or permitted earthworks to be carried out, on the Land without development consent. 6. Orders that Alexander Thomas O'Connell immediately cease using the Land as a waste facility and a waste disposal facility. 7. Orders that Alexander Thomas O'Connell, within 28 days, install and maintain erosion and sediment controls to contain the movement of sediment off the Land as shown on the plan at Annexure "A" to these orders (identified as "Location of sediment control fence" and "Location of stabilised access") in accordance with, and as detailed in, NSW Government (Landcom) Managing Urban Stormwater: Soils and Construction, vol 1 (4th Ed), March 2004, ISBN 0-9752030-3-7 (the 'Blue Book'), as follows: 1. a sediment fence as described at section 6.3.7 and detailed at Standard Drawing SD 6-8 in the Blue Book; and 2. a stabilised site access as described at section 6.3.9 and detailed at Standard Drawing SD 6-14 in the Blue Book, where sections 6.3.1, 6.3.2, 6.3.7 and 6.3.9 of the Blue Book should be taken into account as necessary. 1. Orders that Alexander Thomas O'Connell, within 4 months of the date of these orders, remove from the Land all waste and other materials, including soils, bricks, concrete, plastics, small and large rocks, metals, vegetation, slabs of concrete and asphalt, fibrous sheet fragments and builders waste, but excluding clean fill. 2. Orders that Alexander Thomas O'Connell, within 1 year of the date of these orders, restore the Land as near as possible to the condition it was at or around 9 June 2015, prior to the importation and deposition of the waste and other materials. 3. Orders that Alexander Thomas O'Connell pay Queanbeyan-Palerang Regional Council's costs of these proceedings.

Queanbeyan-Palerang Regional Council v O'Connell

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Cases Cited (25)