Ryan v Northern Regional Planning Panel

Applicant's evidence

1. The Applicant affirmed an affidavit dated 28 June 2021 which was read in part. Some paragraphs expressed dissatisfaction with Winten's compliance with consultation requirements concerning Aboriginal cultural heritage in relation to the New DA lodged with the Council. Seven photographs taken on 16 December 2020 were attached to the affidavit which showed water after a rain event. The affidavit asserted that the photographs "show the true impacts when there is flooding rain". Photograph 1 was not ultimately relied on. No plan was provided showing where the photographs were taken from or their direction of view. Such a plan was provided and marked Ex A in the course of the hearing. This showed that four photographs were taken from a point near the southern boundary of the Winten property facing away from it. Photographs 2 and 3 were taken across the Winten property showing that land from the midpoint of the photographs. While it was strongly asserted that these photographs showed Winten's fence at the bottom of the photograph standing in water, that was not consistent with Ex A and I do not accept that submission.
2. There was some dispute about where exactly the photographs were taken from, with Ex 1 tendered by Winten identifying a point further south away from the Winten property as the possible site from which photographs were taken. It is not necessary to resolve this issue.
3. Mr Oshlack affirmed an affidavit dated 27 May 2021 stating that he has engaged a construction engineer to prepare a scoping study on reinstatement of the site. Winten had commenced and continued work on the site during and following the hearing for Ryan No 4. The Applicant has given Winten a great amount of leeway to remediate the site and claimed that the work is causing environmental harm, particularly when it rains. While some work has been undertaken pursuant to "Order No. 11 To Prevent Environmental Damage" issued by the Council under Ch 7 Pt 2 of the Local Government Act 1993 (NSW) to stabilise the site, Winten has not given any guarantee that further pollution events will not take place.

Affidavit of Christina Renner

1. Christina Renner, solicitor for Winten, swore an affidavit dated 24 June 2021 setting out a chronology of dates relevant to Winten's works on the site and lodgement of the New DA. Ms Renner referred to a folder of documents marked CAR-1 (Ex 2).

Works on the site

1. Ms Renner was instructed that no works have been carried out in reliance on Development Consent 2017/270 since the date of the decision in Ryan No 4, being 14 May 2020. On 15 October 2020, the Council issued Winten with Order No 11. Item 1 required a report by a suitably qualified geotechnical/civil or structural engineer assessing the site and detailing works required to stabilise the land, place it in a safe condition and prevent environmental damage within 30 days. Item 2 required completion of long-term remediation and stabilisation works within 60 days.
2. On 19 October 2020, Winten's consultant Planit Consulting submitted to the Council an "Environmental Damage Prevention Report" in response to Item 1 of Order No 11. The report was informed by a site inspection and dealt with earthworks and soil stabilisation, site drainage, erosion and sediment control. The report recommended works to address identified issues on the site, regular site inspections following completion of the works and maintenance works where necessary, subject to prior approval from the Council.
3. By email dated 23 October 2020, the Council stated that it was generally satisfied with the Environmental Damage Prevention Report. By letter dated 18 December 2020, Planit Consulting certified that based on a site inspection conducted on 11 December 2020, the works set out in the Environmental Damage Prevention Report had been completed.
4. Douglas Partners Pty Ltd conducted a site inspection on 19 January 2021. Following heavy rain events in early January 2021 there had been some erosion on a localised batter but no significant erosion elsewhere on the site was noticed. Some maintenance works were recommended. The Council approved these works by email dated 3 March 2021. Ms Renner attested that due to heavy rain and flooding in March 2021, the approved maintenance works were not able to be promptly completed.
5. Planit Consulting completed a site inspection on 9 April 2021 and provided a report to the Council. There was an acceptable quality of stormwater leaving the site and most of the site was performing well. Rectification of localised scouring was recommended amounting to about one day's work. Ms Renner was instructed that due to further inclement weather, the previously approved maintenance works were delayed.
6. By email dated 10 June 2021, Planit Consulting sought approval from the Council to carry out further maintenance works that had been identified in an inspection conducted in late May following more rain in April and early May. By email dated 22 June 2021, the Council gave approval to carry out these works.

New development application

1. Winten lodged the New DA on 23 October 2020 seeking development consent for the subdivision of land to create 85 residential lots, two super lots and two residue lots and to undertake associated works, including environmental protection, infrastructure provision, streetscape landscaping and entry signage.
2. By letter dated 13 November 2020, the Council requested information on access from the site onto Dunoon Road and compliance with provisions of the Council's development control plan with regard to public open space. By letter dated 22 December 2020, the Council requested information in relation to the submitted Contaminated Land Assessment Report, Biodiversity Development Assessment Report (BDAR) and Aboriginal Cultural Heritage Assessment Report (ACHAR). Ms Renner attested that the BDAR and the ACHAR are the two issues that have taken the most time to address.
3. By email dated 12 January 2021, Mr Oshlack made submissions to the Council in relation to the New DA.
4. Test excavations required by the Council in relation to the ACHAR need to be carried out in accordance with a considered excavation methodology, in the presence of Registered Aboriginal Parties (RAPs) after an initial site inspection with the RAPs to identify appropriate locations for test pits. The development proposal was re-notified to ensure that no potentially interested Aboriginal parties were missed. Ms Renner was instructed that a site inspection with the RAPs occurred on 3 June 2021.
5. Ms Renner was instructed that the revised draft BDAR was issued by Winten's ecological consultant on 23 June 2021. Ms Renner was instructed that further test excavations with the RAPs were taking place on 24 June 2021 and that the final draft of the revised ACHAR was expected to be completed by 9 July 2021. Ms Renner was instructed that the remainder of the information required to respond to the Council's requests in relation to the New DA had been prepared and that Winten expects to submit a complete response in the week commencing 12 July 2021. Ms Renner was instructed that the New DA should be considered and determined at the Council meeting on 10 August 2021.

Dr Martens' expert report

1. Winten tendered a report by Daniel Martens dated 24 June 2021 (Ex 3) prepared in relation to soil and water management measures at the site and the impacts of stormwater discharged from the site on the downslope receiving environment. Dr Martens stated: 2.3 Question 1: Performance of Existing Sediment and Erosion Control Measures 19. Based on my Site inspection and 25 years of experience with soil and water management and subdivision earthworks, it is my opinion that the existing operational sediment and erosion control measures at the Site constructed in accordance with the Environmental Damage Protection Report are functioning adequately and shall continue to do so with appropriate maintenance. My reasons are as follows: a. My Site inspections determined that previously disturbed areas of the Site capable of generating sediments are appropriately drained to the existing sediment basins in Area B. b. Areas which are unable to drain to the sediment basins have appropriate sediment and erosion control fences installed downslope of the previous works area. These fences appear to be appropriately maintained. c. Within Area A, Site stormwater drains and associated check dams appear to be coping adequately with surface flows and directing such flows to the sediment basins in full. d. Sediment basins appear to be functioning adequately to capture and treat sediments in Site flows prior to release to Area E and to the culvert under Dunoon Road. e. The constructed bund around Area B and downslope of the sediment basins is generally stable and revegetated. Discharge in the outlet at the time of inspection appeared to be relatively free of sediment and of low turbidity. f. Observation of flows through the existing culvert under Dunoon Road and areas both upstream and downstream of the culvert showed no evidence of historic or current sediment deposition or transportation, with flows appearing to have relatively low turbidity and vegetation appearing to be both abundant and unimpacted by sediments in stormwater discharges. 2.4 Question 2: Assessment of Environmental Harm 20. Based on my Site inspection and 25 years of experience with soil and water management and subdivision earthworks, it is my opinion that: a. The Site is currently well managed with no significant sediment loss, transport or deposition evident downslope of the sediment basins. b. No off site environmental harm has occurred recently or is currently expected because the Site is stabilised, revegetated and has active sediment and erosion control measures in place. There is no evidence downslope of the Site that environmental degradation has been caused by Site works. c. The Site is not likely to cause the pollution of receiving waters by sediment as historical earthworks areas are stabilised, revegetated and have active sediment and erosion controls in place. d. I recommend that all sediment basins be cleaned of captured sediments, if this has not already been undertaken, to improve and maintain performance. Captured sediment from sediment basins is to be taken to an appropriately licenced offsite waste recycling and management facility.
2. Dr Martens was cross-examined for an hour by Mr Oshlack. He did not agree that polluted water was leaving the site, stating that runoff will always occur after a large rain event and water will always have some turbidity, which is at acceptable levels at the Winten property. Water runoff is never clear. The sedimentation basins on the site are more than adequate for the size of the site and appear to be operating well. Dr Martens was able to make these conclusions on the one fine day he inspected the site because of what he observed, including the absence of sedimentation in and beyond the culvert under Dunoon Road which receives water from the site and elsewhere.

Applicant's submissions

1. Winten has been on notice from the outset of the proceedings that reinstatement orders would be sought. It chose to continue working despite the commencement of court proceedings and undertook the work despite three interlocutory injunction applications by the Applicant (I note that all of these were unsuccessful).
2. Mr Oshlack sought to prove that flooding and the discharge of polluted water from the site occurred following rain events in December 2020 and in January, March and April 2021 by relying on the photographs attached to Mr Ryan's affidavit, assertions made in that affidavit to that effect and statements in the reports of Planit Consulting and Douglas Partners Pty Ltd that some erosion had occurred following rain events in January, March, April and early May 2021. These statements are summarised above in [13] and [15].
3. The Applicant disputes that the New DA will be able to be considered finally by the Council on 10 August 2021 as he considers the timelines in the NSW Department of Planning, Aboriginal cultural heritage consultation requirements for proponents 2010 (1 April 2010) published under Pt 6 of the National Parks and Wildlife Act 1974 (NSW) have not been complied with. Consequently the New DA cannot be ready in time for the Council's 10 August 2021 meeting. The Court should not assume that this will occur.
4. The orders made in Oshlack v Iron Gates Pty Ltd BC9705319 (Land and Environment Court (NSW), 4 July 1997, unrep) by Pearlman J for remediation provide a good model for what the Court should ultimately order in this matter, informed by the scoping study requested in prayer 1 of the NOM.

Winten's submissions

1. The NOM is made prematurely and may be unnecessary. The New DA was lodged in October 2020 with the Council and has been progressing with the provision of two additional reports requested by the Council. The New DA intends to utilise the filled area on the Dunoon Road frontage. Ms Renner is instructed that Winten expects that all matters necessary for the Council's consideration will be provided in the week commencing 12 July 2021 and expects the New DA to be considered by the Council at its meeting on 10 August 2021.
2. The evidence of Planit Consulting, Douglas Partners Pty Ltd and Dr Martens clearly establishes that the site is more than adequately stabilised and no further action in that regard is required. There is no utility in making the orders sought in the Applicant's NOM at present.

Consideration

1. The ultimate issue of discretion which underlies the NOM is the Court's broad power under s 9.46 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) to make orders to remedy a breach of the EPA Act, as identified in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-341 by Kirby P in relation to former s 124. The NOM seeks orders which are to assist the Court in making any consequential orders that appear necessary.
2. In considering an application under UCPR r 31.19, expert evidence that is reasonably necessary as well as relevant can be accepted into evidence under this rule: Shellharbour City Council v Minister for Planning (2011) 189 LGERA 348; [2011] NSWCA 195 at [35] (Giles JA). Under UCPR r 23.8(1) a court can order the inspection of any property and the making of any observations of property that enables the proper determination of any matter in question in any proceedings. Such an order can authorise the entry of a person onto land, under subs (2). Under subs (3), a court is not to make an order under this rule unless satisfied that sufficient relief is not available under s 169 of the Evidence Act 1995 (NSW). Section 169 concerns the making of requests such as producing a specified document inter alia. Given that this application concerns access to private land and is opposed by Winten, it is necessary to consider making an order under UCPR r 23.8(1).
3. Winten was legally entitled to rely on Development Consent 2017/270 until it was declared invalid in May 2020 following Ryan No 4. The Applicant was unsuccessful in obtaining interlocutory orders restraining work carried out in reliance on that consent. At the time the work was carried out it was not illegal. There is no evidence that any work other than work done to comply with Order No 11 issued by the Council has occurred on the site since May 2020. The Applicant's submission that the work carried out was illegal is not accurate.
4. Concerning the current state of the site, the evidence of the Planit Consulting reports and additional reports of Douglas Partners Pty Ltd confirm that the stabilisation measures undertaken pursuant to Order No 11 issued by the Council have been generally effective in reducing sediment runoff from the site to acceptable levels. That some erosion occurred following large rainfall events which required maintenance work to be undertaken does not undermine that overall finding. The Council considers that Order No 11 has been complied with. Photographs 2 and 3 taken by Mr Ryan and his general assertions in his affidavit about water exiting the site during rain events do not assist in determining otherwise.
5. Dr Martens' short report, which I allowed into evidence over Mr Oshlack's understandable objection as it was prepared without notice to the Applicant, simply confirms what was otherwise apparent from the reports exhibited to Ms Renner's affidavit. Based on a site inspection on a fine day, Dr Martens' conclusions are not undermined by the absence of rain when he visited. The current state of the site does not warrant further stabilisation measures to be implemented beyond those required by the Council.
6. I accept Winten has actively pursued the New DA for subdivision of land on the site which I understand to include the Dunoon Road frontage where fill has already been placed pursuant to Development Consent 2017/270. If development consent is granted for the New DA there may be no utility in making orders requiring reinstatement and revegetation in this part of the site as some of the existing fill can be utilised as part of the new development. Given the complexity and size of the site, the size of the subdivision proposed and the issues raised in relation to biodiversity and Aboriginal cultural heritage, the Council and Winten have not taken an inordinate amount of time to undertake the necessary assessment. The New DA is still pending. I agree with the Applicant that it cannot be known with certainty when the New DA will be dealt with. Winten's evidence through its solicitor is that it expects the New DA to be before the Council meeting on 10 August 2021.
7. The site is a large one and the extent to which reinstatement is reasonable and feasible in all areas of the site will require expert evidence. Such evidence can be relied on pursuant to UCPR r 31.19. Access to the site for the experts will be necessary, as provided for by UCPR r 23.8.
8. Given the length of time that has elapsed since Ryan No 4, the scope of consequential orders for site reinstatement, if any, does need to be resolved sooner rather than later. Given the length of time since judgment in Ryan No 4 in May 2020, the Applicant should be able to progress his claim for reinstatement by initially obtaining a scoping study inter alia. On balance, I consider the orders sought by the Applicant ought to be granted in some form, ideally agreed as to the details of access for a specified engineer, surveyor and ecologist with an agreed brief for what is to be undertaken by them. As sought in the NOM, Winten will be liable for the costs of the experts' work.
9. A hearing to determine what, if any, consequential orders ought to be made should be held once the evidence is available and a timetable to achieve that will be discussed with the parties. As it is likely that any hearing will be after 10 August 2021, the outcome of the New DA may then be known.
10. I will discuss with the parties the final form of the orders sought in the NOM before finalising them and also a future timetable for a hearing on whether consequential orders ought to be made. The Applicant has clarified that he seeks disbursements related to the NOM. An itemised list of these must be provided to Winten on or by Friday 6 August 2021 to enable further consideration of such a claim.

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: 30 July 2021