Ryan v Northern Regional Planning Panel [2022] NSWLEC 110 | Case summary | Zoe

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Ryan v Northern Regional Planning Panel

[2022] NSWLEC 110

Land and Environment Court (NSW)|2022-07-28|Before: Pain J, Pearlman J

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2022-07-28

Before

Pain J, Pearlman J

Catchwords

[2012] NSWLEC 38 Dobrohotoff v Bennic (2013) 194 LGERA 17

Source

Original judgment source is linked above.

Catchwords

[2012] NSWLEC 38 Dobrohotoff v Bennic (2013) 194 LGERA 17

Judgment (47 paragraphs)

[1]

Solicitors: Winten (No 12) Pty Ltd, Legal Counsel (Third Respondent) File Number(s): 2019/6908

[2]

Consequential Orders

In Ryan v Northern Regional Planning Panel (No 4) [2020] NSWLEC 55 (Ryan No 4) I found Winten (No 12) Pty Ltd (Winten) the Third Respondent's development consent 2017/270 granted by Lismore City Council for a subdivision was invalid. I made a declaration of invalidity of that development consent on 29 May 2020. I stood over the question of whether consequential orders ought to be made in relation to the site along Dunoon Road Lismore. The Applicant moves on prayer 5 of the Third Further Amended Summons dated 20 December 2019 and is pressing for orders for site remediation to be carried out by Winten pursuant to s 9.46(1) and (2)(c) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). The Applicant was represented by his agent Mr Oshlack.
At issue in Ryan No 4 was, inter alia, whether a species impact statement (SIS) was required because of impacts on threatened species in relation to which ground the Applicant was successful. A breach of the Heritage Act 1977 (NSW) was also argued, in relation to which the Applicant was unsuccessful: at [249]. At [4] I recorded that an Aboriginal heritage ground concerning harm to Aboriginal remains under the National Parks and Wildlife Act 1974 (NSW) was not pressed.

[9]

Ecology report of Ms Wolf

Ms Wolf was instructed by Winten to respond to the brief for Mr Doyle issued by the Court in Ryan No 7 and provide a reply to Mr Doyle's evidence.
Appendix C to Ms Wolf's report contained photographs taken by Ms Wolf and another staff member of Cumberland Ecology on a site inspection on 13 April 2022. Photograph 5 shows a section of the haul road area with water pooled along the track. Photograph 6 shows a landslip to the south-west of the former haul road area. The figures annexed to the report included Figure 5, a satellite image of 11 April 2020 showing the location of disturbance through a superimposed polygon.
Figure 8 was an aerial image depicting the pre-disturbance vegetation mapping of the site as conducted by Dr Robertson in 2019. The information in Figure 8 indicated 11 hollow-bearing trees in the disturbance polygon in the borrow pit area. Ms Wolf assumed all those trees were cleared. The Figure showed that prior to disturbance the borrow area was dominated by exotic grassland. No threatened flora or fauna species were recorded within the borrow pit area.
The haul road area in Figure 8 was also dominated by exotic grassland. No habitat features including hollow-bearing trees were recorded within the haul road area. No threatened flora or fauna species were recorded within the haul road area. As most of the haul road area previously comprised exotic grassland, Ms Wolf did not consider it necessary to undertake significant revegetation works within the area. Supplementary planting of native trees and shrubs was recommended along the edges of the haul road area.
The main areas of disagreement with Mr Doyle were as follows: 1. Mr Doyle's recommendation of rehabilitation works within the borrow and haul road areas aims to result in vegetation composition and structure resembling dry rainforest. This fails to account for the pre-disturbance condition of the vegetation. The woody vegetation pre-disturbance in the borrow pit area predominantly comprised a tall closed shrubland dominated by privets, lantana, and camphor laurel. Native species were present within this area, however the vegetation community is exotic dominated and did not conform to an Endangered Ecological Community (EEC). The haul road area was also dominated by exotic grassland pre-disturbance with scattered woody vegetation. It is appropriate to undertake supplementary planting of native trees and shrubs to restore the woody vegetation to its pre-disturbance condition rather than an intact form of existing vegetation communities. Ms Wolf recommended lower native tree and shrub planting density than Mr Doyle; 2. While Mr Doyle recommended weed management within the borrow pit and haul road areas, with the likelihood of weed invasion from adjoining areas, the exotic dominated conditions pre-disturbance, and the currently occurring weeds which are stabilising the areas, this is unnecessary; and 3. While Mr Doyle recommended placing topsoil in both the borrow and haul road areas prior to revegetation, the source of that soil is not detailed. Due to the location of the recommended revegetation works this is unnecessary. Within the borrow pit area, the area Ms Wolf proposed for revegetation was subject to very limited earthworks. Based on her site inspection, when she noted regeneration of vegetation, the soil depth in that area is sufficient for plant growth and additional topsoil is not recommended. Within the haul road area, the revegetation works proposed occur in areas adjacent to the former haul road including along the soil stockpile along the north-eastern boundary of the road where tree and shrub regeneration is evident. Additional topsoil is not recommended.

[10]

Joint report - ecologists

The ecologists considered the borrow pit and former haul road areas. There were no identified disagreements between the ecologists. Figure 1 was an aerial image overlayed with a polygon showing the subject land and disturbance area. Figure 2 was an aerial image overlayed with a polygon showing the proposed vegetation management areas in the borrow pit and haul road areas. The area in Figure 2 is smaller than in Figure 1.
On the topic of previous biodiversity values Ms Wolf's vegetation mapping was adopted which was in turn based on the earlier mapping in the Robertson report. They agreed that the woody vegetation previously mapped was exotic dominated with scattered occurrences of native species. The exotic vegetation has been historically modified through agricultural practices resulting in the occurrence of exotic grassland. The exotic vegetation was of decreased habitat value for native fauna species. The vegetation types present did provide habitat for a range of native fauna including microchiropteran bat species (micro-bat). The thorny pea and a total of 11 hollow-bearing trees occurred within the borrow pit area cleared.
In relation to current biodiversity values, the ecologists agreed that the area is currently dominated by exotic grassland with scattered occurrences of regrowth native shrubs and trees generally on the south-west corner of the borrow pit area where the removal of topsoil and subgrade was limited. There are eroded areas within the borrow pit area with bare soil present.
The haul road area comprises a matrix of exotic grassland, woody exotic vegetation and bare rock. Woody exotic vegetation occurs as regrowth along the northern side of the haul road area, on the soil stockpile. Native shrubs and trees are present along the windrowed soil stockpile, however their occurrences are scattered. The borrow pit and haul road areas are currently of limited native fauna habitat value.
The environmental harm that occurred as a result of the disturbance to the borrow pit and haul road areas included: 1. Removal of native and exotic vegetation; 2. Removal of individuals of the thorny pea; 3. Removal of hollow-bearing trees; 4. Removal of habitat for native fauna including threatened birds and bats; 5. Increase in sedimentation and erosion; 6. Increase in invasion of exotic species; and 7. Alteration of hydrological regimes.
The extent of the vegetation impacts were described in Table 1 (which is unnecessary to extract). At least five individuals of thorny pea were removed within the borrow area and a total of 11 hollow-bearing trees were removed in the borrow pit area.
On the issue of vegetation management works, the experts agreed that the borrow pit and haul road areas will require vegetation management works to restore the vegetation and habitats to their pre-disturbance condition, including planting native tree and shrub species. They recommended the trees and shrubs listed in Table 2 (which is unnecessary to extract) be prioritised for planting. A Vegetation Management Plan (VMP) should be prepared for the works to detail the vegetation management strategies. This should include information on planting suitable densities as per those species in Table 2, as well as requirements for planting of pioneer, secondary and mature species, in accordance with best practice guidelines. The VMP should also include details of maintenance of planted trees and shrubs to ensure 85% survivorship. The approximate locations recommended for these works were shown in Figure 2. Works should include a minimum 10 individuals of the thorny pea to replace those removed during clearing for the borrow pit area.
Any exposed soil surfaces in the borrow pit and haul road areas that are subject to significant erosion should be identified and treated with a hydromulch (or suitable alternative) native seed mix to ensure stabilisation.
On the issue of habitat management works, it was agreed that the loss of 11 hollow-bearing trees could be mitigated by installing 22 nest boxes (2:1 replacement ratio). They should be predominately micro-bat roost boxes to mitigate impacts to hollow-dependant bats such as the threatened eastern long-eared bat. They should be installed in suitable mature trees within retained vegetation adjacent to the borrow and haul road areas.

[13]

Documentary review of borrow pit and haul road before and after work

The engineers agreed upon all but one issue in their JER. The haul road (previously a 4WD track) extends from chainage 640 to chainage 1135. The borrow pit area is located above chainage 1135. The former haul road was being utilised as a farm access 4WD track prior to construction works commencing. The original date of the farm access 4WD track's construction is unknown. It was visible on Nearmap in 2014. The farm access 4WD track consisted of a partially grassed northern side and a drainage channel on its southern edge against the bank (sometimes referred to by the civil engineers together with batter). The farm access 4WD track was sloped into the toe of the bank (southern side) over its full width. The farm access 4WD track exhibited periodic scour along the drainage side and would have required regular maintenance prior to construction work. The farm access 4WD track contained no gravel base prior to construction works. There is no documentation available to describe the condition of the southern bank (also referred to as the south-west bank) prior to construction works.
During construction works the farm access 4WD track was modified so as to operate as a haul road for heavy vehicles transporting materials from the borrow pit to the stage 1 fill pad. The vegetation clearing report during works indicated that only very minor clearing was undertaken when preparing the former haul road. The former haul road maintained the same road cross fall directing stormwater into the southern drain against the toe of the bank. While operating as a haul road all grass was removed from the haul road. A stop work notice was issued for the works in May 2020 and erosion protection works in the form of rock checks were installed in around July 2020. Additional protective maintenance was undertaken in November 2020. There is no evidence of grass cover or hydromulch stabilisation over the former haul road area during the maintenance works. The extent to which the southern side drain was re-established or drain stabilisation works were implemented is not clear. The photos from Planit (Mr Plain's firm) do not indicate any stabilisation works being implemented for the southern side drain.

[16]

Scoping report for haul road remediation

Unless other access can be provided, remediation of the track to allow 4WD access is necessary in the immediate short term. Remediating the track back to its former condition will be difficult due to the loss of soils, steepness, highly erodible nature of the remaining soils, high rock shelf and the volume of stormwater draining onto the road. The primary immediate concern is to address the stabilisation of the southern banks/batters as soon as possible. The construction of the road approved by Lismore City Council along the former haul road (which has no firm works approval or start date) would be the ideal way to address remediation of the former haul road. Plans to return the former haul road to its original state are too complex to detail.
A lined table drain along the southern side will be required to be designed so as to accommodate surface flow from the catchment to the south. The lining of the table drain could be with rock, concrete or gabions if width permits. The edge of the drain abutting the new filled track will require protection either with concrete or some other method so as to stop drain erosion into the edge of the track. This assumes also that all southern bank stabilisation has been completed. Regular piped culvert crossings will be necessary to take water from the southern drain across the road and discharge down the northern batter. Erosion protection at outlets will be required. Pipe crossings should be at a maximum 50 - 60m intervals so as to control the volume of water flowing down the drain. The reinstated track will be required to be hydromulched or turfed over its entire length so that the establishment of grass cover occurs as quickly as possible. The existing eroded track will be required to be built up with a minimum of 600 millimetres of compacted clay base material and profiled accordingly. Those works are additional to the southern bank stabilisation works. Detailed survey, geotechnical advice and engineering design would need to be completed prior to construction.

[19]

Causation - second supplementary report of Mr Plain

Mr Plain's supplementary report dated 21 July 2022 addressed Mr Hammond's opinion in the JER that the rock checks have been a significant contributor to the erosion problem described in the JER (see above in [41]). Mr Plain disagreed with that view. Mr Plain referred to his earlier report of 3 May 2022 and reiterated his previous views that: 1. In wet weather the 4WD access track always acted as one of the site's main drainage channels and has been subject to major scouring repairs; 2. Only minimal construction work was required to upgrade the farm access 4WD track to the former haul road; and 3. Due to the upstream catchments, the track steepness, and being adjacent to a drainage channel, it will consistently be subject to scouring and erosion.
Mr Plain also referred to the JER above in [33] (to the effect that no documentation was available to describe the condition of the bank prior). He understood that the south-west bank was essentially left untouched as part of the construction works for the former haul road.
Mr Plain annexed 13 Nearmap images to his report showing the former haul road area at various points in time. Construction of the bulk earthworks and minor grading and compaction to turn the 4WD access track into a haul road commenced in mid-October 2019. Nearmap images 1, 2 and 3 are from an oblique angle looking towards the batter/bank that was the focus of the JER. These Nearmap images show the state of the bank prior to any works commencing. In Mr Plain's view, Nearmap image 1 (April 2014) in particular showed that there were exposed, non-vegetated batters subject to scouring and erosion prior to any works commencing. All Nearmap images prior to mid-October 2019, particularly Nearmap images 10 and 11 dated September 2019 (one month prior to works commencing) show that the entire length of the corridor was subject to scouring and erosion issues. The Nearmap images prior to bulk earthworks commencing show scour along the drain and batters that are not covered in vegetation, particularly around Chainage 830. Nearmap images 10 and 11 (September 2019) show the farm access 4WD track in its condition prior to any works to convert it into a temporary haul road. As can also be seen in Nearmap images 10 and 11, there is an existing wide cleared corridor with distinct wheel tracks and drainage channel which has erosion issues at different intervals along the full length of the corridor. They also show minimal grass coverage across the 4WD access track prior to works commencing.
Nearmap images 4-13 are aerial images of the corridor and close ups of chainage 830 to show the state of the track and drainage channel at various points in time with particular emphasis on chainage 830. It was agreed at the site inspection that Chainage 830 was the most significant erosion area within the corridor. As can be seen in Nearmap images 12 and 13, rock check dams are shown on the aerial images in April 2022 at approximately 20m intervals. Rock check dams are designed to slow water down to reduce scouring within the drainage channel. If the rock check dams had caused the land slip at Chainage 830 or any significant scouring or erosion, there would be increased erosion at each rock check dam. As can be seen on the Nearmap images, this is not the case.
The Nearmap images strengthened his opinion that the farm access 4WD track and drain were always subject to erosion and scour issues. Works completed for the temporary former haul road which included maintaining the existing farm access 4WD track cross fall and drainage channel have not caused increased erosion or scouring to the channel or batter. The additional scour protection measures, the rock check dams, have been implemented to slow the speed and velocity of the water going down the drainage channel. Based on Nearmap images 12 and 13, the rock check dams have not caused increased erosion to the bank at these locations. The land slip at chainage 830 and erosion issues within the corridor would have occurred anyway whether or not the temporary haul road works were constructed.

[20]

Causation - supplementary report of Mr Hammond

Mr Hammond responded to each of Mr Plain's observations. He agreed with the date of the former haul road's construction. He agreed that there is evidence of limited scouring and erosion along the southern edge of the farm access 4WD track as well as some non-vegetated batters prior to the construction of the former haul road.
Mr Hammond noted that while the earliest Nearmap image in Mr Plain's supplementary report was dated April 2014, it is likely that the farm access 4WD track existed some time, possibly years prior to that date. For the five and a half years from April 2014 to the construction of the former haul road in October 2019 the farm access 4WD track was trafficable. The clearly defined wheel tracks are evidence of this.
Mr Hammond agreed that there was evidence of scour along the length of the farm access 4WD track prior to the construction of the former haul road. The erosion was due to the side slope of the farm access 4WD track being towards the southern bank, channelising water down the side. Based on the photographic evidence, even after the major flood event of 2017, the farm access 4WD track was never not trafficable due to erosion. No significant landslips were evident.
The pre-existing limited erosion and steepness of the farm access 4WD track should have alerted the contractors that disturbing the ground and constructing an unsealed haul road would require appropriate design and detailing to protect it against erosion. No special measures were taken.
Once the former haul road was no longer required, the only stabilising activities implemented were installing rock check dams. There is no evidence that any attempt to provide stabilising grass cover was undertaken. The establishment of such grass cover over the farm access 4WD track through topsoil spreading, grass seeding, hydro-mulching or turfing should have been a top priority.
Chainage 830 is the most significant bank collapse however it is not the only at-risk section of bank along the former haul road. The former haul road cannot be accessed by 4WD due to the degree of erosion and was in a similar condition when Mr Hammond completed his January 2022 site inspection prior to the floods of February 2022. The degree of damage to the former haul road track and the adjacent bank as at January 2022 far exceeded any damage that had previously occurred.
The rock check dams were aligned such that they directed runoff into the southern bank. Without the complimentary construction of a stabilised drain to transport the water away the rock check dams have contributed to the erosion along this edge. Scour of the southern edge of the road was inevitable without protective measures along this drain. The bank collapse at chainage 830 is not related to the rock checks but is simply a continuation of the degradation of the bank and the track of the former haul road.
In summary, there was a degree of pre-existing scour and erosion prior to the construction of the former haul road. The farm access 4WD track had remained trafficable for over five and a half years and had remained after the major 2017 flood affecting Lismore. Between the end of 2019 and by January 2022 when Mr Hammond conducted his first site inspection, rainfall runoff had destroyed the former haul road track. This was before the February and March 2022 floods.
The photographic evidence clearly demonstrates that the farm access 4WD track had performed much more favourably over a much greater length of time and through significant rain prior to the former haul road being constructed. It is false to say having regard to the evidence that the same level of erosion would have occurred even if the haul road had not been built.
The design and construction of the haul road was flawed. There were insufficient erosion controls and measures to establish grass cover. The rock checks, installed as the only erosion control measure, contributed to the erosion.

[21]

Oral evidence of Mr Plain

Mr Plain was cross-examined by Mr Oshlack. Mr Plain had knowledge of the construction of the haul road and was asked various questions on that topic. He explained that the haul road was constructed using material from the borrow pit which was compacted and graded to maintain the same cross fall as the farm access 4WD track. That material was a form of road base. It's thickness varied but was around 100 millimetres on average. The former haul road was approximately 600 metres long and 6 metres wide. Minor clearing and minor grading was undertaken.
Mr Plain agreed that most of the road base had gone by July 2020, when the satellite image in Figure 6 of his first report was taken. He also agreed that the road base had washed into the table drain on the inside of the haul road and into the sediment basins in the lower sections of the site. By November 2020, when the satellite image in Figure 7 of his first report was taken, additional rock check dams had been placed on the haul road compared to Figure 6. Mr Plain estimated the total haul road base material to be 240 cubic metres. Around 80% of that material would have travelled down to the sediment basins and 20% would have been distributed across the road. Mr Oshlack asked questions about where the 20% of material would have dispersed to.
By reference to the satellite image in Figure 8 of Mr Plain's first report taken in January 2021, Mr Plain was asked whether the area in the image was now highly eroded. He agreed the area is eroded. By reference to the satellite image in Figure 9 of his first report taken in May 2021, Mr Plain was asked whether the area in the image was completely eroded, with which he disagreed, as some parts of the former haul road were not eroded. These figures show about 130 metres. Mr Plain could not therefore agree that one could extrapolate from the figures that the whole of the haul road is eroded in a similar way. Mr Plain did agree that the area depicted in the figures was highly eroded except for some small patches. Mr Plain reaffirmed his written evidence that the former haul road area would have eroded similarly if the former haul road had not been built.
When asked whether he agreed that no "special measures were taken" to limit erosion when constructing the haul road (see Mr Hammond's supplementary report above in [55]) Mr Plain replied that the rock check dams were built, hay bales were placed and there was seeding done. He presumed they were washed away. Mr Plain agreed that after the heavy rainfall and flooding in Lismore in 2017 the farm access 4WD track was able to be used as such. Mr Plain was asked whether rainfall runoff had completely destroyed the track within two years of Winten's activities, before February/March 2022. He responded that he did not inspect the site prior to February 2022 and had no knowledge. The farm access 4WD track was trafficable between April 2014 and October 2019. There was erosion in some years. There has been repair work and maintenance done on the haul road to keep it accessible for a 4WD vehicle over that period.
Mr Plain had not seen plans to protect against erosion in the design and details relating to the construction of the haul road.
When asked whether geotechnical designs should have been undertaken prior to the construction of the haul road to prevent the erosion that is currently occurring, he responded that regular maintenance had prevented erosion previously, not geotechnical investigation or design.
In re-examination Mr Plain was asked whether his analysis was based on geotechnical expertise. He has geotechnical expertise and his analysis was based on the Nearmap images, seeing erosion and seeing maintenance work. By reference to the joint opinion of the engineers (above in [37]) that stabilisation of the southern bank is the most important work that needs to be undertaken as soon as possible, Mr Plain was asked whether that opinion was one expressed as a civil engineer with limited geotechnical experience. He agreed.

[22]

Oral evidence of Mr Hammond

Mr Hammond was also cross-examined. He was asked first about the height of the 2017 and 2022 floods in Lismore. He agreed that 11.59 metres in height sounded about right for the 2017 flood. He agreed that the February 2022 flood was somewhere around 14.4-16 metres with the exact height unknown because of broken meters. He agreed that the March 2022 flood was reported at 11.4 metres. At the time of his inspection in January 2022, the farm access 4WD track was inaccessible by vehicle and extremely eroded. There were a couple of wet years prior to January 2022. The site was "completely destroyed" prior to February 2022. Subsequent damage from the floods in February/March 2022 was ancillary to the bulk of the damage, although clearly further rainfall and the 2022 events would have caused more damage. Flooding after January 2022 made no real difference to the erosion. The damage related primarily to the south-west bank. The existing damage to the former haul road area exacerbated the damage caused by the February/March 2022 floods.
Mr Hammond agreed that he could see evidence of scour and erosion between chainages 700 and 830 in May 2017. When asked if he could see improvement in that area by December 2017, Mr Hammond replied that it looked like there was less scour. Someone had possibly upgraded the area or natural regrowth may account for the difference. Mr Hammond agreed that by July 2018 the Nearmap image Figure 4 of Mr Plain's first report showed that the scour appeared completely gone. When asked what would account for the improvement, he speculated that somebody may have done some work there. He agreed that there has been some repairs and general maintenance done. He agreed that the farm access 4WD track remained trafficable for five and a half years prior to the former haul road's construction because of regular repairs and maintenance, but he had issues with the degree of maintenance. When asked what state he would expect the farm access 4WD track to have been in if it had ceased being maintained between September 2019 and today, Mr Hammond answered that it would have been eroded.
Mr Hammond's opinion was that from day one the construction of the road was incorrectly done. The pre-existing erosion should have been a clear signal that particular attention was necessary to deal with erosion issues. The only thing that was done for the haul road during its operation was to put material there and grade it into the southern bank where there were no drainage structures. Winten were very fortunate that during the time that they were using the haul road there was next to no rain. Had there been rain while they were using the haul road it would have completely disappeared. The rock check dams were only employed at a later date after the haul road was constructed.
Mr Hammond accepted there were flaws in the original farm access 4WD track but he opined that it was working fine until the haul road was built. It was high conjecture to state that the degree of erosion now visible would have occurred had it stayed a farm access 4WD track. There was no evidence of any topsoil being spread, seeding or hydromulching. Mr Hammond was asked whether if the farm use had ceased, there had not been regular maintenance, and acknowledging the cross fall of the track, exposed batters and history of erosion, there would have been significant erosion. Mr Hammond asked rhetorically why there was no grass cover established or repair of erosion in the bank after the haul road was no longer in use. Nothing was in place apart from the rock check dams. He suggested that if the farm access 4WD track was not going to be used it should have been rehabilitated. The future use of the haul road area is unknown, despite Winten's intentions to develop the land at some point in the future.
Mr Hammond was asked why no erosion should have been allowed to occur given the sediment was being captured and managed on site and why the area should have been rehabilitated and revegetated. He responded that such a position was not an environmental or engineering perspective and he did not understand its logic. Mr Hammond stated that his objection is to the construction of the former haul road in a way that did not address obvious problems and the failure to address these problems once the road use ceased.
Mr Hammond was shown a photograph of the landslip at chainage 830 and asked whether he thought the landslip was caused from erosion on the haul road or drain moving up the hill. Mr Hammond answered that it was so caused, because the water would undermine the lower sections of the bank, removing support for the upper sections. He agreed he was not a geotechnical engineer. He agreed that excessive moisture in the hillslope could contribute to the landslip and that its cause was a combination of factors. When asked to identify other sections of the bank at risk of collapse (see [57]), Mr Hammond could not do so.
In re-examination Mr Hammond was asked to make comments on Mr Plain's first supplementary report concerning costings (above in [43]-[45]). He agreed that Mr Plain's costings were reasonable. He commented that the measures contemplated in that report should have been undertaken when the haul road was being constructed. Mr Hammond queried why Mr Plain's Option 2A (see above in [45]) included allowance for shaping and rock lining from chainages 300-940, which was around 300 metres longer than the stretch of the haul road which was the subject of the expert evidence. Mr Plain responded that this was done for abundant caution as that would extend the measures to the bottom of the steep section of the haul road.

[23]

Dr Martens report dated 14 July 2022

Dr Martens prepared a report dated 14 July 2022 which responded to instructions asking him to complete work he completed in June 2021, confirming whether or not onsite erosion and sediment control measures continue to operate effectively and as a result, whether the site is causing or likely to cause adverse offsite impacts. He reviewed Mr Hammond's first report, Mr Plain's first report, Ms Wolf's report, the JER, and site visit reports, photographs and water monitoring data between June 2021 and April 2022. In his curriculum vitae Dr Martens lists civil engineering and geotechnical engineering in his fields of expertise.
Figure 1 of the report is as follows:
Mr Martens stated the following by way of explanation of Figure 1: 14 The following is noted in respect of the site arrangement and identified areas: a. Area A comprises the historical bulk earthworks areas associated with previous development application, including residential lots and internal access roads. b. Area B comprises the interconnected sediment and erosion control basins, including 7 separate basins confined upslope of a north / south aligned bund. c. Area C is the former hill climb road / haul road, which drains to the sediment basins in Area B. d. Area D is the site entrance and primary access. e. Area E comprises of a large flow retention area upslope of a raised embankment forming Dunoon Road with culvert below road.
Dr Martens conducted his initial inspection of the site on 31 May 2021. In his first report in these proceedings in June 2021, he concluded that no offsite impacts such as sediment polluted waters, sediment deposition or degraded vegetation were observed downstream of the Site. He completed a further 'virtual' inspection of the site on 12 July 2022 with the assistance of Mr Giuseppe Fallara a civil engineer employed by the firm Planit by audio-visual link directing Mr Fallara around the site in order to inspect the former haul road, current soil and water management measures, local drainage systems, topography and existing roads.
Dr Martens observed that the former haul road in Area C in Figure 1 presently acts as a stable drainage diversion channel which diverts water and any sediment away from the area of former earthworks (Area A) to the series of sediment basins located in Area B for detention and treatment. The majority of Area C has been effectively stabilised by the placement of boulders and boulder check dams to control flows. In places these have been relocated by water such that the bed of the drainage channel is largely protected from any further erosion. Within Area C there are also numerous areas where bedrock is exposed and there is very little sediment available for transport. Within Area C batter slopes either side of the former haul road are largely colonised and stabilised with vegetation.
Dr Martens observed a small area of slope failure in the upper western portion of the former haul road which he understood occurred as a result of recent extreme rainfall. He observed numerous similar landslips in the north coast area associated with extreme rainfall and opined that such slips are not uncommon on farm tracks within steep terrain. He noted that the slip was small, was being colonised by vegetation and did not show any significant evidence of further erosion following the initial movement.
Dr Martens further observed that the sediment basins located in Area B continue to perform well and are capturing and treating sediments in site runoff. No sediment or erosion was observed downslope of the sediment basins in Area E. Vegetation growth in Area E remained abundant and luxuriant. The stormwater outlet to Area E did not contain evidence of historic or current sediment deposition which would indicate significant sediment transportation from upslope. No offsite impacts such as sediment polluted waters, sediment deposition or degraded vegetation were observed downstream of the site.
Dr Martens observed that the photographs in Mr Hammond's first report were consistent with his own observations that the former haul road is in a stable condition. In relation to Ms Wolf's report, he also observed that the photographs in her report were consistent with those observations. Photograph 6 in Ms Wolf's report which showed the landslip indicated that the landslip has been largely stable since it occurred, consistent with his observation.
Based on his recent inspection, he was of the opinion that: 1. the site remains well managed with no significant sediment loss, transport or deposition evidence downslope of the sediment basins; 2. No off-site environmental harm has likely 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; and 3. The site is not likely to cause the pollution of receiving waters by sediment because historical earthworks areas are stabilised, revegetated and have active sediment and erosion controls in place.

[24]

Oral evidence of Dr Martens

Dr Martens was extensively cross-examined. In closing submissions, the cross-examination was not referred to by the Applicant and much of it will not therefore be summarised.
Dr Martens confirmed that all water on the site is directed towards the sediment basin in Area B on his Figure 1. The volumetric capacity of that sediment basin is large, holding something like 10,000-20,000 cubic metres of sediment (without checking the levels to be precise). There was very little sediment in the basin. The overlay of road surface on the haul road would be washed away into Area B.
When asked whether he agreed that the haul road area from chainages 640 to 940 is in a very poor condition having undergone significant scour and erosion, Dr Martens answered that it was definitely not trafficable with ordinary vehicles, and it has undergone significant scour in the past. It was not very large or substantial erosion. In some places the bedrock is exposed but the area is heavily armoured with rock material. There was not much evidence of recent erosion. The scour and erosion was significant in terms of 4WD access, as a normal 4WD vehicle could not drive along the entire road. The scour and erosion was not significant in terms of pedestrian access as a pedestrian could walk up the road without difficulty. An excavator or other larger vehicles could move up and down the road. Dr Martens did not agree that the southern bank has suffered significant erosion.
In respect of the slope failure on the haul road at approximately chainage 820-850, Dr Martens opined that a tree or two may be lost in coming years but there was not a major slope failure. It was exactly what he would anticipate on a farm track under two years of saturating and extreme rainfall. There was a possibility that the slope might re-adjust and cause some vegetation, perhaps within one or two metres, to bend over. This was not generating any material sediment being transported downstream. Dr Martens did not agree that the erosion is moving up the bank causing trees to collapse (contra above in [36]).
Dr Martens agreed that stabilisation work should occur on the banks if there is an intention to use the haul road as a road, however these works would not be extensive. Southern bank and road stabilisation works were not required. The main source of the erosion is not the southern batter bank. The erosion has been concentrated on the pavement or the base of the road. Dr Martens agreed with par 29 of the JER (see above in [38]) but did not think works would need to be substantial or significant. No significant risk of erosion of the northern bank was likely to occur. The civil engineers made a broad statement that would apply only to portions of the haul road and large sections of it do not require any work at all.
Dr Martens was not aware whether the sediment basin in Area B was inundated in the February 2022 floods in Lismore. When asked about impact of flooding on the sediment basin, the basin would have acted as a localised sediment accumulation point and would benefit the environment because flood water would be trapped there, and sediment would be allowed to settle. In a flood the water in the sediment basin would be stratified, with stagnant flow below the top of the basin and higher velocity flow above, which explains why sediment from the basin would not be picked up by the water overflowing from the basin. If a bucket was placed in the bed of a river the water and sediment inside the bucket would not be moving. A similar principle applies to a flood scenario in the sediment basin. When Dr Martens' virtual site visit was conducted on 12 July 2022, Dr Martens did not observe any significant deposition of sediment from flood waters or erosion that had previously been deposited by the egress of flood water from the basin if it were contained in that area. If a flood in March 2022 did enter the sediment basin, there were no "plus or minuses of sediment" observable.
By reference to photograph 6 of Ms Wolf's report (see above in [16]) showing a landslip to the south-west of the haul road, Dr Martens was asked how many trees in that photograph may be subject to collapse. He responded that there were no trees in that photograph that may be subject to collapse. The vegetation looked like shrubs or low-woody growth to him. There may be some re-adjustment of the slope in that location in the next few years. It may be that the soil never adjusts if there is sufficient root mass. He would not be surprised if the feature stays in its current condition for a number of years.
When asked whether he agreed with pars 28-30 of the JER (see above in [37]-[38], Dr Martens disagreed that the main source of erosion was the southern bank batter and that the batter needed to be stabilised as soon as possible. He did not fully agree with the evidence above in [38] (par 29 of the JER) because there would not be utility doing the work detailed in that par across the entire northern bank of the haul road, which seemed largely intact. He had no issue with par 30 (above in [38]).
Dr Martens confirmed his opinion that there was no evidence of off-site impacts from sediment leaving the site. The discharge location downslope of the culvert under Dunoon Road was the limit of his inspection area off-site on 12 July 2022. Area E acts as a further sediment basin larger than Area B. There was no sediment at all within Area E or the outlet from Area E, suggesting strongly that no significant or material sediment was leaving Area B let alone Area E to flow under the road to the culvert. There was no need for Mr Fallara to walk further down the water course than the culvert given there was no sediment leaving Area B or E. Dr Martens was asked about whether he could see the soil in Area E on his virtual site inspection given the area was covered by long pasture grasses. He stated that the inspection was sufficient for him to observe the ground of areas where the vegetation was growing.
In re-examination Dr Martens stated that the sediment basins appeared well maintained on 12 July 2022. In relation to off-site impacts, if there was sediment evident in downstream properties which Dr Martens did not inspect, but no sediment in Area E, this would suggest that the sediment came from elsewhere than the Winten site. This explained why there was no need to inspect downstream properties.
The southern bank does not in his view contribute to material sediment deposits in Area B. Any sediment in Area B is material generated in the past and generation in the future is likely to be very low.
In respect of the contribution of the site to the sediment basins in a flooding event, Dr Martens opined that the sediment basins would have a positive effect because they would trap sediment that may be entrained in flood water. By reference to photograph 11 in Ex 6, a photograph of the back slope in the landslip area, Dr Martens expressed the view that the slump was caused by over-saturation of soil rather than water flowing through the haul road area. There was no physical connection between the water flowing in the haul road area and the slump.

[36]

Engineering - causation of landslip and erosion

The Court should form the view that the south-west bank of the former haul road area would likely have been subject to erosion and landslip even if no construction works had occurred. If it does so s 9.46 is not enlivened in respect of remedying that damage. The Court's ability to make consequential orders is limited to those which it thinks fit to remedy or restrain the breach, being the works carried out in reliance on the subsequently invalidated consent.
In relation to the haul road area, the experts agree: 1. This area was previously used as a farm access 4WD track (see JER above in [33]); 2. The farm access 4WD track consisted of a partially grassed northern (or, more accurately, north-east) side and a drainage channel on its southern (more accurately: south-west) edge (see JER above in [33]); 3. The farm access 4WD track had cross fall sloping into the toe of the south-west bank (see JER above in [33]); 4. The farm access 4WD track exhibited periodic scour along the drain side and would have required regular maintenance (see JER above in [33]); 5. Only very minor clearing works were undertaken when preparing the farm access 4WD track for its use as a haul road during bulk earthwork activities (see JER above in [34]); 6. There is no documentation available to describe the condition of the south-west bank prior to the commencement of construction works (see JER above in [33]); and 7. The haul road maintained the same cross fall as the farm access 4WD track, directing stormwater into a drainage channel located against the toe of the south-west bank (see JER above in [34]).
The former haul road area, even in its former incarnation as a farm access 4WD track, has always had a drain along the toe of the south-west bank and a crossfall sloping toward the toe of the bank, which directed water toward the toe of the bank. The drain has always been subject to scour and the farm access 4WD track required regular maintenance. As agreed by the experts, only very minor clearing occurred to temporarily upgrade the farm access 4WD track to a haul road during bulk earthworks.
Nearmap and google earth images of the haul road area (Ex 6) confirm that the south-west bank always had exposed batters, including in the landslip area, even in its former incarnation as a farm access 4WD track. These exposed batters were not created as part of the construction works. They were a feature of the farm access 4WD track for many years prior. The experts agree that the former haul road is in very poor condition between chainage 640 and 940, with the majority being eroded down to bedrock (see JER above in [36]), meaning that further erosion of the former road itself will be limited (see JER above in [37]). This area, which previously served both a drainage and access function, now operates as a wide stormwater drain (see JER above in [36]). As the same volume of water is being discharged from the upstream catchment, the increased width of the drainage channel actually reduces the scouring and erosion effects that would otherwise have occurred with the prior narrower drain (Mr Plain's first report above in [31]) that existed prior to the construction works. The experts agree that the prime area of concern, from an erosion perspective, is the south-west bank of the former haul road (see JER above in [37]).
Mr Hammond's view was that the one way cross fall of the track and the rock checks installed by the contractor for Winten directing water to the toe of the bank was a significant contributor to the erosion. The track has always had the same one-way cross fall and directed water into the drain at the toe of the bank. Had no bulk earthworks ever been undertaken on the site, and the farm use of the site ceased, resulting in the vehicular access track no longer being subject to regular repair and maintenance, this corridor of land would be in a similar state today. Although some scour and erosion are clearly evident, this cannot be attributed to the construction of the temporary haul road, which involved very little vegetation clearing, and no works to the pre-existing south-west bank.
Mr Hammond agreed that had the track not been subject to regular repair and maintenance after the commencement of the works to build the former haul road, it would have eroded away (see above in [70]). Dr Martens observed that the damage was exactly what he would expect to see on a farm access track after two years of wet conditions (see above in [88]) and stated that the landslip was in his opinion unrelated to the erosion in the drainage channel (see above in [74]). Dr Martens has superior expertise to the civil engineers on these matters, being a geotechnical engineer, and his evidence should be preferred. The Court should make no orders requiring engineering works to be carried out.

[41]

Discretion

In formulating "such orders as it thinks fit" the Court must have regard at all times to the pursuit of the objects of the EPA Act. 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 the Act: F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306 (Hannan No 3) at 313.
The Court has a wide discretion to refuse relief and to soften, according to the justice of particular circumstances, the application of rules which, although right in general, may produce an unjust result in the particular case: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 (Sedevcic) at 341. Factors relevant to the exercise of discretion in the present case include: 1. The lack of adverse impacts arising from the breach on the environment and locality: Sedevcic; Bankstown City Council v Bennett (2012) 187 LGERA 446; [2012] NSWLEC 38 (Bennett) at [109]; 2. The fact that the third respondent was acting honestly and in good faith, in reliance on a development consent, and not in deliberate breach or disregard for the law; and 3. The ease with which the breach can be rectified, the degree of irremediability occasioned by the breach and the expense or inconvenience that would follow the law's enforcement: Sedevcic at 340; Dobrohotoff v Bennic (2013) 194 LGERA 17; [2013] NSWLEC 61 at [82].
To the extent that the Court is of the view that the erosion in the former haul road area was caused by the construction works, it should nevertheless refuse the Applicant the orders he seeks on discretionary grounds. The site is zoned for urban development and is an active development site, with Winten to imminently recommence the subdivision works required to complete Precinct 1.
Oshlack v Iron Gates provides no basis for making the orders sought by the Applicant. The orders proposed in that case related to reinstatement of the site to its condition immediately prior to carrying out the works and the Court was not asked to go beyond reinstatement. The Court rejected a submission from the developer that the Court should have regard to the possibility of future subdivision of the site and therefore not order reinstatement of the site to its previous undeveloped condition: at [3]. Timbarra establishes that whether a SIS is required is a jurisdictional fact, meaning a decision reviewable by the Court. A development consent is valid until declared invalid: Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at 88. The distinction between a void and voidable breach of the Act is discussed by McHugh JA in Hannan No 3 at 327. That at the time the works were carried out Winten were acting under a valid development consent is a relevant factor in the Court's exercise of discretion: Bennett at [109].

[42]

Consideration

I am determining in the exercise of my judicial discretion whether and what consequential orders ought to be made pursuant to s 9.46 to remedy the breach of the EPA Act, the subject of Ryan No 4, in the area of the borrow pit and former haul road on Winten's land. As the parties submitted and I agree with, I have power to make consequential orders addressing the environmental impacts arising from development work carried out in reliance on DA2017/270. The DA2017/270 was found to be invalid in the absence of a SIS as held in Ryan No 4 at [309]. The land in the area of the former haul road and the borrow pit has been altered pursuant to the development consent now declared invalid. Under section 9.46(2)(c) where a breach has the effect of altering land, measures may require its reinstatement so far as is practicable to the state the land was in immediately before the breach was committed. It follows that I cannot make broader orders which address management of the site generally within the power conferred by s 9.46(2)(c). I also cannot make orders which do not address an established breach of the EPA Act. Within the parameters of s 9.46(2)(c) I have wide discretionary powers as identified in Hannan No 3 at 311. The discretion is directed to a public duty imposed by or under an act of upholding the "integrated and co-ordinated nature of planning law" to avoid private advantage: Sedevcic at 340 (Kirby P). Ultimately any order must do justice in all the circumstances.
One example of the exercise of the Court's powers under s 9.46(2)(c) relied on by the Applicant was Oshlack v Iron Gates. For the reasons given by Winten summarised above in [128] that case does not provide much assistance in the particular circumstances of this case.
The Applicant also relied on Timbarra, in which the Court of Appeal held that whether a SIS was needed was a jurisdictional fact. Timbarra addresses the legal effect of my finding in Ryan No 4 but does not have any particular relevance to the exercise of discretion to make consequential orders. It is a well-established principle that Winten was entitled to rely on its development consent until that was found to be invalid: Hannan No 3 at 327; Rossi v Living Choice Australia Ltd [2015] NSWCA 244 at [44], [357]. In Ryan No 6 at [31] I reiterated that Winten was entitled to rely on their consent until it was declared invalid and the work carried out was not illegal. For this reason, the fact that the Applicant made clear to Winten that it would seek orders for reinstatement from the outset of the proceedings has no particular weight in the exercise of my discretion.

[43]

Vegetation management

The engineers agreed in the JER above in [35] that the borrow pit area had been remediated reasonably well and there are no engineering issues in that area.
The ecologists agreed in their JER summarised above in [20]-[28] the nature and scope of the ecological restoration work required in their opinion in the borrow pit area and on part of the haul road, as identified in Figure 2 of the JER, on the basis that this reflected the environment disturbed by works carried out as a result of DA2017/270 being declared invalid. The vegetation management works agreed on works to restore the vegetation and habitats to their pre-disturbance condition including by planting native tree and shrub species and hydro mulching in part of the borrow pit and along the haul road. They provided a list of priority plants and recommendations for the number of nest boxes to be established. Guidelines for the preparation of an appropriate VMP are also identified.
Winten adopted the ecologists' agreed approach in the JER as the appropriate measures to address vegetation management, as that reflects the restoration of the vegetation that was lost as a result of relevant development. The Applicant asked the Court to make more extensive orders for restoration than the ecologists agreed in their JER, seeking to rely on Mr Doyle's first report, extracts of which are above in [14]. In that report Mr Doyle recommended vegetation work across the whole of the borrow pit area. It is apparent from the JER that Mr Doyle subsequently accepted Ms Wolf's opinion based on the surveys carried out by Dr Robertson, whose work was relied on in the substantive proceedings, about the less than pristine vegetative environment that existed before work in the borrow pit area commenced. This included areas of exotic grasses inter alia, as set out in the JER above in [21]. The agreed vegetation management work falls within the power conferred on me by s 9.46(2)(c).
Work in the additional areas of disturbance identified in Figure 1 of the JER, additional planting of species and additional nest boxes sought by the Applicant as necessary for reinstatement of the site are not supported by the ecological evidence. The evidence relied on to support more extensive planting of species was said to be BAM plot data in Dr Robertson's report but as Winten identified the species referred to are not shown in the borrow pit area in Figure 4 of that report: see above in [13]. The Applicant has not provided an evidentiary basis to support the making of these additional orders given the limits of s 9.46(2)(c).
The Applicant also submitted that there are stockpiles of topsoil which should be spread out before planting. There is no evidence of piles of topsoil on Winten's land currently before the Court. Winten submitted that there are no piles of topsoil on the land because the topsoil taken from the borrow pit was used on Precinct 1. Given these competing submissions and the lack of evidence no basis for making orders about topsoil have been established by the Applicant. The ecologists have not recommended using topsoil in their JER as part of the recommended vegetation management works but rather recommended hydromulching. Ms Wolf 's assessment of why topsoil is not needed is set out in her first report, summarised above in [19(3)] which Mr Doyle accepted in the JER.
Winten advised that access for any vegetation management work can be obtained through neighbouring properties. The former haul road does not need to be trafficable for this work to occur. Orders to provide further preparation and implementation of a VMP can be made. It is unnecessary that the Court approve such a plan.

[44]

Engineering work on haul road warranted?

As already noted above, section 9.46 states that the Court may make such orders as it thinks fit to "remedy or restrain the breach [of the EPA Act]". Where the breach has "the effect of altering the condition or state of land [the Court may] require the reinstatement, so far as is practicable, of that…land to the condition or state the…land was in immediately before the breach was committed." Winten argues that the breach was the work carried out in reliance on the invalidated consent, and therefore any damage that would have occurred without those works cannot be the subject of reinstatement orders under s 9.46(2)(c). I agree that the power to reinstate the land to its condition prior to the breach is not at large, being limited to reinstating the land to the extent practicable by remedying the alteration caused by the breach.
The Applicant seeks orders for reinstatement of the haul road to a 4WD track as agreed in the JER of the civil engineers Mr Plain and Mr Hammond. The former haul road is presently not trafficable by a 4WD for parts of its length and is consequently not trafficable overall. The civil engineers agreed that the haul road from chainages 940 to 1135 is currently in a stable state with some minor scouring, which can be readily repaired and vegetated. The haul road from chainages 640 to 940 is in very poor condition with significant scour and erosion.
The civil engineers agreed about all issues except two matters considered. Firstly, whether further erosion of the former haul road was caused by its alteration by Winten for that use, as Mr Hammond considered, or would have occurred regardless of that use, Mr Plain's view. Secondly, whether the crossfall for the former haul road should be changed from its present southern fall to the north.
The agreed observations of the civil engineers in their JER about what existed before the haul road use is set out above in [116] in Winten's submissions. The engineers agree about which measures are needed to rebuild the former haul road for use as a 4WD access track. They emphasise the immediate need for stabilisation of the south-west bank as that is a major source of future erosion which needs to be stabilised as soon as possible above in [37], [39]. The engineers agreed above in [37] that the former haul road will not be the source of much erosion in the future, having eroded down to bedrock already.
Winten opposes the making of any orders which require engineering work on the former haul road on five bases. Firstly, that no road is presently required in this location as the site no longer operates as a farm. Secondly, what is sought is more substantial than what was there before the haul road use commenced, namely a farm access 4WD track. Thirdly, measures to control sediment leaving the site have been implemented satisfactorily as required by Lismore City Council and continue to function effectively as confirmed by Dr Martens' evidence. Consequently there are no off-site impacts from sediment. Fourthly, the erosion caused to the former haul road, particularly the south-west bank, was not as a result of the development works but would have occurred anyway, about which Mr Plain and Mr Hammond disagree. Fifthly, the substantial cost of doing repair work, as identified by Mr Plains' first supplementary affidavit about costs, is not justified in all the circumstances.
A number of matters must be balanced in determining what orders ought to be made in relation to carrying out engineering works.
The first of Winten's submissions that a road is not required for a farm use in this location requires some further consideration. Winten submitted that the site generally is a development site and it intends for works to commence on the subdivision for which development consent has been granted in Precinct 1 imminently, the challenge to that development consent having been dismissed in North Lismore Plateau Association Inc v Lismore City Council [2022] NSWLEC 85. I was informed in Ryan No 7 as I recorded at [13] that development consent DA5.2016.7.1 was granted in 2016 for a road between Precinct 1 and the plateau area where the borrow pit is located. That consent remains in force until April 2023 as a result of COVID emergency response legislation. The affidavit of Ms Renner solicitor dated 8 October 2021 was to the effect that she was instructed that Winten intended to build that road and that its location largely overlaps with the former haul road track. The civil engineers agreed that the rebuilding of the former haul road to address the erosion risk is most appropriately done at the time the road is to be built (JER above in [38]-[39], [42]). The civil engineers identify that no firm works approval on the start date for that road is known to them. I do not have any updated evidence about Winten's intentions in relation to building that road as none was provided at the hearing concerning the making of consequential orders and the evidence concerning this matter is nearly twelve months old. I am not therefore able to take that matter into account in relation to these orders.
On Winten's second submission of whether what is proposed is more substantial than what existed before the haul road use, the civil engineers' brief as annexed to Ryan No 7 at par (5) required the scoping report "to specify what is required for the haul road to be remediated to the original single lane, four wheel drive track ensuring it is in a safe condition from any landslips including minimising storm and sediment impacts on neighbouring properties, and including remediation of eroded edges and verges if any to avoid water runoff in heavy rain events." This brief was directed to reinstatement of what was there before the haul road use commenced. Reference was made to Nearmap images of the farm access 4WD track in 2014 up to September 2019, before work commenced on the haul road use in October 2019, to support a finding that what existed was a minor track. The evidence of Mr Plain is that not much was done to prepare for the haul road use. Minimal clearing was undertaken and minor grading of a thin layer of topsoil was applied as road base from the borrow pit area. This suggests that what the engineers are addressing is reinstatement of the former farm access 4WD track.
I do agree with Winten that some of the work identified by the civil engineers such as piped culvert crossings at regular intervals and the remodelled table drain on the southern side will be more extensive than what existed previously. It is difficult on the current evidence to clearly divide actions which would reinstate the farm access 4WD track from the more extensive work proposed by the civil engineers. The civil engineers did agree that reinstatement of the road was very difficult due to its steepness, the highly erodible soils, the high rock shelf and the volume of stormwater draining onto the road (above in [39]).
Winten's third submission that off-site impacts are adequately controlled is supported by Dr Martens' evidence and is accepted. No proper basis for not accepting his opinion was identified by the Applicant. There is nothing unorthodox in this day and age in having another person take video footage of areas of interest. Further Dr Martens had attended the site previously to prepare his report of June 2021, referred to in Ryan No 6, and has familiarity with it. The whole site is generally stable due to erosion measures implemented by Winten, such as the detention basins detailed in Dr Martens' evidence, summarised above in [78], [82] and shown in Figure 1 of the Martens report (in Area B and Area E). Dr Martens' opinion as detailed in his report and oral evidence was that these measures were effective including during and after flooding in Lismore in 2022. I accept that sediment is not leaving the site under usual conditions as found in the evidence of Dr Martens. This identified an absence of sediment moving off the Winten land through the culvert under Dunoon Road. Given his observations about the lack of sediment in Area B and E I also accept his opinion that inspection of downstream properties was not necessary. Dr Martens considered the capacity of the sediment control basins was more than adequate to deal with potential erosion. Dr Martens' lengthy cross-examination was not referred to by the Applicant in closing submissions and there was no undermining of Dr Martens' opinions expressed in his report in the course of that cross-examination in my view, which is summarised above at [85]-[96].
Winten's fourth submission was that the erosion caused was not a result of its development works but would have occurred anyway, and therefore no engineering work is justified. This requires close scrutiny of the evidence of Mr Plain's opinion supporting that submission, and of Mr Hammond's contrary view. Determining this issue in light of the state of the evidence does not give rise to a self-evident conclusion that either opinion on its own is correct. The parties and experts all agree that the site was subject to major inundation by floods in 2017 and to a greater extent again in February/March 2022. Mr Hammond was asked about the high to extremely high water levels during these floods in cross-examination as set out above in [69].
The civil engineers agree that the risk of erosion from the road is now minimal as the topsoil had been washed away, as confirmed in the cross-examination of Mr Plain who estimated that 80% would have been washed into the sediment basins in Precinct 1 and 20% dispersed in the vicinity of the track (above in [63]). The civil engineers agree that the south-west bank which has always been exposed is a likely source of future erosion.
Mr Plain referred to various Nearmap images of a 130 metre section of the former haul road at chainages 700-830 between 2014 and before October 2019, from when the haul road use commenced, and stated that these showed erosion occurring with maintenance measures taken to address this over time. This was said to confirm his opinion that regardless of whether the haul road use occurred the farm access 4WD track would have eroded in the absence of maintenance. Mr Plain did not consider the haul road use caused increased erosion or scouring to the channel or bank. Mr Hammond agreed in cross-examination that the Nearmap images 2014 to September 2019 suggested that erosion and maintenance to address this occurred over these years on the farm access 4WD track (see above in [70]).
Mr Hammond relied on the completely inadequate preparation in his view of the farm access 4WD track for the haul road use and the failure in his view to take any measures to prevent erosion afterwards apart from installing the rock check dams. He also highlighted that there was no evidence of stabilising planting such as hydromulching (see above in [56], [72]). The rock check dams were built to respond to Lismore City Council's control order in May 2020 to prevent erosion. That work did not arise from the implementation of the invalid development consent.
Mr Hammond's opinion that the haul road use greatly contributed to the substantial erosion that has occurred, resulting in the non-trafficable former track in existence today, appears justified given his reliance on the circumstance that the farm access 4WD track continued to be able to be used until September 2019, including after the substantial 2017 floods. Mr Hammond is highly critical of the manner in which the haul road use occurred with inadequate or non-existent measures to prevent erosion being taken, as summarised above in [55], [56], [61], [71]-[73]. Mr Plain identified in his oral evidence the minimal preparation undertaken for the haul road use, with a thin layer of topsoil material from the borrow pit area being used as road base and some grading. Minimal clearing was undertaken. As Mr Hammond identified the track was impassable for traffic when he inspected in January 2022, before the very substantial flooding in February/March 2022.
Having carefully analysed the written and oral evidence of Mr Plain summarised above at [47]-[51] and [62]-[68], I can generally accept his opinion that erosion would have been caused to the farm access 4WD track regardless of whether the haul road use had occurred. I agree that it was likely in the absence of maintenance that the track would have eroded but Mr Plain's evidence does not identify the extent of erosion that might have arisen compared to what has occurred. Mr Hammond's criticism of Mr Plain's opinion in this regard is accepted, namely that Mr Plain cannot say on the basis of his evidence that the same level of erosion would have been caused regardless of the haul road use. I accept Mr Hammond's opinion that the haul road use greatly exacerbated the erosion that has resulted in most of the sediment along the former haul road being washed away for the reasons he gives at [60], [69] as that appears a common sense and practical opinion about causation based on the material available to Mr Hammond. As Mr Hammond also stated, that sediment is not escaping off-site does not mean that the damage resulting from the erosion to the haul road should not be repaired from an environmental harm reduction perspective. Such an approach is also consistent with good engineering design.
The civil engineers agreed that the south-west bank requires urgent stabilisation work to be undertaken. Winten's solicitors sought to undermine this opinion by seeking to rely on Dr Martens' expertise as a geotechnical engineer in contrast to the civil engineers. Mr Plain stated that he had limited geotechnical expertise when asked by Winten's solicitor above in [68]. Dr Martens disagreed with the civil engineers' opinion in evidence in reply when asked one question by Winten's solicitor which was not objected to. Dr Martens did not participate in any joint conferencing with the civil engineers and that was not the purpose for which his evidence was called, being whether sediment was leaving the site. It is difficult to give his opinion weight in these circumstances. Had Winten intended to rely on his evidence for this purpose more should have been done to engage with the other engineering evidence which was the subject of joint conferencing and cross-examination, although not on this issue. No criticism of Dr Martens is intended by these remarks. I am simply responding to the case as run by Winten. The agreed evidence of the civil engineers suggests that work should be carried out by Winten to ensure greater stability of the south-west bank.
Further complicating the issue of the extent of stabilisation of the south-west bank required is the evidence presented about the condition of the south-west bank at chainage 830. The civil engineers considered the area of the bank around chainage 830 had been subject to erosion and was collapsing according to their JER above in [36] and in their causation reports above in [51], [57]. Several images were in evidence in the report of Ms Wolf, second supplementary report of Mr Plain, and in Ex 6 showing the land slip at this location. Dr Martens' view given in oral evidence as a geotechnical engineer was that the slippage was not caused by the flow of water on the road but was a function of the heavy saturation of the soil in that location resulting in slumping. He did not consider that the slope would slump down the hill or cause the collapse of woody vegetation. In his view this had not been caused by water flowing along the table drain at the edge of the road. The engineering evidence in relation to the slippage at chainage 830 is therefore contradictory and not readily resolved on the basis of the evidence adduced.
Weighing up the various matters before me I accept Winten's submission that there is no need for the 4WD track to be reinstated. Stabilisation work on the south-west bank will be ordered. This will require preparation of a stabilisation design inter alia. The extent to which stabilisation works should occur will be the subject of that stabilisation report. It is unnecessary for the Court to approve such a plan. Timing of revegetation of the former haul road area will have to be considered in light of this.
Concerning the crossfall, which strictly I do not need to consider as I am not ordering the reinstatement of the 4WD track, the engineers agree that the one-way crossfall of the former haul road was the same as the farm access track directing stormwater into a drainage channel located against the toe of the south-west bank. I agree with Winten that in circumstances where the crossfall has always been in one direction towards the south-west bank there is no basis for implementing the recommendation of Mr Hammond to reverse the crossfall under s 9.46(2)(c).

Ryan v Northern Regional Planning Panel

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (47 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (13)