Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd - [2019] NSWLEC 58 - NSWLEC 2018 case summary — Zoe

NSWNSWLEC

Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd

[2019] NSWLEC 58

Land and Environment Court (NSW)|2018-12-07|Before: Pepper J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2018-12-07

Before

Pepper J

Catchwords

(2009) 167 LGERA 395 Chamberlain v R (No 2) [1984] HCA 7
(2003) 136 LGERA 242 Doney v R [1990] HCA 51
(1990) 171 CLR 207 Drummoyne Municipal Council v Lebnan [1974] HCA 34
(1974) 131 CLR 350 Drummoyne Municipal Council v Page [1973] 2 NSWLR 566 Gibb v Federal Commissioner of Taxation [1966] HCA 74

Source

Original judgment source is linked above.

Catchwords

(2009) 167 LGERA 395 Chamberlain v R (No 2) [1984] HCA 7(2003) 136 LGERA 242 Doney v R [1990] HCA 51(1990) 171 CLR 207 Drummoyne Municipal Council v Lebnan [1974] HCA 34(1974) 131 CLR 350 Drummoyne Municipal Council v Page [1973] 2 NSWLR 566 Gibb v Federal Commissioner of Taxation [1966] HCA 74(1966) 118 CLR 628 Grace Bros Pty Ltd v Willoughby Municipal Council (1980) 44 LGRA 400 Heatscape v Mahoney [2017] NSWCCA 135(2017) 223 LGERA 66 Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2002] NSWCA 301(2002) 55 NSWLR 446 House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44(2004) 218 CLR 216 King v Bathurst Regional Council [2006] NSWLEC 505(2006) 150 LGERA 362 Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114(1911) 13 CLR 619 Pittwater Council v Minister for Planning (2011) 184 LGERA 419 Rao v Canterbury City Council [2000] NSWCCA 471(2000) 112 LGERA 360 Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277(1970) 19 LGRA 321 SAS Trustee Corporation v Miles [2018] HCA 55(1986) 160 CLR 156 Waverley Council v CM Hairis Architects [2002] NSWLEC 180

Judgment (42 paragraphs)

[1]

9 LGRA 321 SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 367 ALR 206 Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd [2018] NSWLEC 114 Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 2) [2018] NSWLEC 195 Shepherd v R [1990] HCA 57; (1990) 170 CLR 573 Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4 Tempe Recreation (D.500215 and D.1000502) Reserve Trust v Sydney Water Corporation [2014] NSWCA 437 The Owners - Strata Plan No 4983 v Canny [2018] NSWCA 275 Tovir Investments v Waverley Council [2014] NSWCA 379 Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396 Ulan Coal Mines Ltd v Minister for Planning (2008) 160 LGERA 20 Viertel v Andrews [2008] NSWLEC 195 Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156 Waverley Council v CM Hairis Architects [2002] NSWLEC 180; (2002) 123 LGERA 100 Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 Wingecarribee Council v CSR Limited (unreported, Land and Environment Court of NSW, no 40100 of 1993) Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 Texts Cited: Category: Principal judgment Parties: Secretary, Department of Planning and Environment (Prosecutor) Leda Manorstead Pty Ltd (Defendant) Representation: Counsel: T Howard SC and J Walker (Prosecutor) A Galasso SC and B Anniwell (Defendant)

[2]

Solicitors: Department of Planning and Environment (Prosecutor) Mills Oakley (Defendant) File Number(s): 2017/186631, 2017/186632, 2017/186634 Publication restriction: N/A

[3]

table of contents Leda Develops the Cobaki Estate Site Overview The Concept Approval The Project Approval Modification of the Project Approval Historical and Current Development Consents Relating to Cobaki Estate The Three Charges The Elements of the Offences 2017 Mills Oakley Letter Admitting Breach of Condition 21A b. Whether the Project Approval Affected the Operation of Pre-Existing Consents Principles of Construction Applicable to a Pt 3A Approval Issues for Determination Arising From the Proper Construction of Condition 21A b. The Meaning of "the Site" in Condition 21A b. of the Project Approval The Meaning of "Bulk Earthworks" Meaning of the Expression "Maximum Exposed Disturbed Area (That Has Not Been Permanently Vegetated)" Leda Has Contravened Condition 21A b. Inspections by Mr McLachlan The Evidence of Mr Watts The Evidence of Mr Shaw The Evidence of Dr Martens is Not Accepted CC 02/1368 CC 107 Series DA 10/0800 CC 10/0717 The Bulk Earthworks Carried Out on the Site Were Carried Out Under the Project Approval Leda Exceeded the 5.59 ha Limit and is Guilty as Charged in the First and Second Summons Condition 41 of the Project Approval The Meaning of "Bulk Earthworks" for the Purpose of Condition 41 Leda Has Breached Condition 41 of the Project Approval Conclusion and Orders

[4]

Leda Develops the Cobaki Estate

The defendant, Leda Manorstead Pty Ltd ("Leda"), is the developer of the Cobaki Estate, a major residential development on land located in the Tweed Shire in the north east corner of New South Wales, close to the Queensland border.
The land the subject of the three charges is wholly owned by Leda.

[5]

Site Overview

The Cobaki Estate Project is located off Piggabean Road, Cobaki Lakes, in the Tweed Shire Council ("the Council") local government area. The location is bounded by the Queensland and New South Wales border to the north, Piggabean Road to the south, and Cobaki Creek and Cobaki Broadwater to the east.

[6]

The Concept Approval

On 6 December 2010 a concept approval ("the Concept Approval") was granted under s 75O in Pt 3A of the Environmental Planning and Assessment Act 1979 (then in force) ("EPAA") by then Minister for Planning ("the Minister"), for the Cobaki Estate project ("the project"): I, the Minister for Planning, pursuant to Part 3A of the Environmental Planning & Assessment Act 1979 (Act), determine: a. Under section 75O of the Act, to approve the concept plan referred to in Schedule 1 subject to the modifications in Schedule 2 and the proponent's Statement of Commitments in Schedule 3; b. Under section 75P(1)(a) of the Act, that further environmental assessment be subject to the requirements set out in Schedule 2; and c. Under section 75P(1)(b) of the Act, that approval to carry out the project, other than the central open space and Precinct 5, be subject to Part 4 or 5 of the Act, as relevant. The modification and further assessment requirements are required to: • Encourage the orderly future development of the site; • Ensure adequate mitigation of environmental impacts of future development; and • Ensure protection and restoration of threatened species and their habitat.
The project involves the development of approximately 5,500 residential dwellings; a town centre and neighbourhood centre for future retail and commercial uses; community and educational facilities; open space; wildlife corridors; landscaping and vegetation management; environmental protection areas and rehabilitation of environmentally sensitive land; water management areas; roads, bicycle and pedestrian network; and utility services infrastructure. Schedule 1 of the Concept Approval provided as follows: SCHEDULE 1 PART A - TABLE Application made by: Leda Manorstead Pty Ltd Application made to: Minister for Planning Project Application Number: 06_0316 On land comprising: Cobaki Lakes, Lot 1 DP 570076, Lot 2 DP 566529, Lot 1 DP562222, Lot 1 DP 570077, Lot 1 DP 823679 and Lots 46,54, 55, 199, 200, 201, 202, 205, 206, 209, 228 and 305 DP 755740 Local Government Area Tweed • Residential development for approximately 5,500 dwellings; • Town Centre and neighbourhood centre for future retail and commercial uses; • community facilities and school sites; • open space; For the carrying out of: • wildlife corridors; • protection and rehabilitation of environmentally sensitive land; • road corridors and utility services, infrastructure; • water management areas; and • roads and pedestrian and bicycle network.

[7]

PART B - NOTES RELATING TO THE DETERMINATION OF MP NO. 06_0316 Responsibility for other consents / agreements The Proponent is solely responsible for ensuring that all additional consents and agreements are obtained from other authorities, as relevant. … Tweed Shire Council Consents This concept plan does not affect DA 92/315, DA 94/438, DA S94/194, DA 96/271, DA S97/54, DA K99/1124 or DA 1262/2001 approved by Tweed Shire Council.

The Concept Approval included approved concept plans. One of the approved concept plans, entitled the "Precinct Location Plan", showed development precincts within the Cobaki Estate, marked by numbers. Concept Approval was granted for residential development for the dwellings and associated facilities as described in condition A1 of Schedule 2.
In Schedule 2, the Concept Approval was relevantly stated in conditions A2 and A3 "to be undertaken generally in accordance with" the plans and documents thereat. Thus condition A3 provided as follows: A3 Project in Accordance with Documents The project is to be undertaken generally in accordance with the following documents: Environmental Assessment (1) Cobaki Lakes Estate Concept Plan Environmental Assessment Report prepared by JBA Urban Planning Consultants P/L, Volumes 1, 2, 3 and 4 December 2008. Preferred Project Report (2) Preferred Project Report prepared by JBA Urban Planning Consultants P/L, Volumes 1, 2 and 3, October 2009. (3) Addendum to Preferred Project Report prepared by JBA Urban Planning Consultants P/L, June 2010 …
Importantly, condition C18 of Schedule 2 of the Concept Approval provided that: C18 Tweed Shire Council Development Consents Future project/development applications for each stage of development are to outline the status of Tweed Shire Council development consents DA 92/315, DA 94/438, DA S94/194, DA 96/271, DA S97/54, DA K99/1124 or DA 1262/2001 and include a detailed description of how these consents relate to the application.
The Concept Approval provided for a large area of public open space running in a north-south orientation through the centre of the site, namely, the "Central Open Space Area" ("COS"). It also earmarked an area to the south-east of the COS for community or educational facilities, that is, the "Southern Special Purpose Precinct" ("SSPP").
Pursuant to s 75P of the EPAA further approvals were necessary before the commencement of the project. The Concept Approval provided that the COS, and an area known as "Precinct 5", would be subject to project approval under Pt 3A, while the remainder of the works could be approved under Pts 4 or 5 of the EPAA, as relevant.

[8]

The Project Approval

On 28 February 2011 the Deputy Director-General, Development Assessment and Systems Performance of the Department of Planning, as delegate of the Minister, granted Leda Project Approval MP08_0200 under s 75J of the EPAA ("the Project Approval").
The Project Approval approved the subdivision of the entire Cobaki Estate into seven lots and, relevantly for present purposes, it approved staged bulk earthworks to be carried out in the COS to "create the central open space, riparian corridor, structured open space, and future stormwater drainage area". Schedule 1 of the Project Approval provided that: SCHEDULE 1 PART A - TABLE Application made by: LEDA Manorstead Pty Ltd Application made to: Minister for Planning Project Application number: 08_0200 The site: Cobaki Estate, Cobaki Lot 1 DP 570076, Lot 2 DP 566529, Lot 1 DP562222, Lot 1 DP 570077, Lot 1 DP 823679 and Lots 46,54, 55, 199, 200, 201, 202, 205, 206, 209, 228 and 305 DP 755740 Local Government Area Tweed • Subdivision of the entire Cobaki Estate site into seven (7) lots (including one residue lot for future urban development - Lot 807); • Staged bulk earthworks to create the central open space, riparian corridor, structured open space, and future stormwater drainage area; For the carrying out of: • Road forming works and culverts crossing the central open space (including Lot 802); • Road forming works across saltmarsh areas, including culverts and trunk sewer and water services (Lot 804); • Revegetation and rehabilitation of environmental protection areas for coastal saltmarsh (Lots 805 and 806); and • Establishment of freshwater wetland and fauna corridors (Lots 801 and 803). Type of development: Project Application

[9]

On 30 May 2011 the Council granted DA 10/0800 in respect of the Cobaki Estate subdivision of Precincts 1 and 2. The development was to be carried out in accordance with, amongst other things, the "Engineering Services Report of Cobaki Precincts 1 and 2 March 2011 Revision 02 (see condition 1).
Condition 50 of DA 10/0800 provided as follows: 50. In accordance with Condition C18 of Concept Plan MP06_0316, a detailed description is to be provided to the satisfaction of the General Manger or delegate demonstrating compliance with previous Tweed Shire Council consent conditions intended to preserve wildlife corridors and protect and offset threatened species, populations and ecological communities and their habitats outside of the Concept Plan habitat requirements, or relevant reasons (such as subsequent amendments) as to why compliance was not required or may be transferred to current DAs. Such description is to include extracts of all relevant plans referred to in the conditions listed below sufficient to understand the land areas of relevance to the conditions and any overlap with current applications. Additional offset must be proposed if clearing of native vegetation has been undertaken not in accordance with the below development consents. Conditions to be addressed are as follows: (a) D94/0438.04 Conditions 23, 24, 34a, 35, 36a, 37 and 38. (b) K99/1124.06 Conditions 10, 15A, 30, 31, 41, 81, 83A, 90, 91, 92A, 93, 94A, 95A, 96, 97, 98, 99, 100, 101, 102A, 103, 104, 105, 106, 107,108, 109 and Schedule B (National Parks imposed conditions via concurrence for Species Impact Statement. (c) 1262/2001DA.02 Condition 9, 16, 17, 18. Where required the development consents are to be modified in accordance with Section 80A(1) of the Environmental Planning and Assessment Act and Regulations to be consistent with this consent.
DA 10/0800 therefore permitted cut and fill within Precincts 1 and 2 to be used elsewhere on the Cobaki Estate.
To date no construction certificate has been issued for DA10/800.

[10]

Modification of the Project Approval

The Project Approval was the subject of three modifications. The first modification was on 29 May 2013 ("MOD1"). The second was on 3 April 2014 ("MOD2"). And the third modification was on 13 February 2015 ("MOD3").
In February 2013 Leda applied to modify the Project Approval for the specific purpose of borrowing fill from Precincts 1 and 2 for use in the COS (MOD1). Leda's Cobaki Estate Development Precincts 1 & 2 Bulk Earthworks Environmental Assessment Report (Revision 1) dated February 2013 by SMEC Urban Consulting ("the 2013 SMEC EAR") which accompanied the modification application, indicated that the borrowing of fill from those precincts for use in the COS had commenced prior to modification having been sought.
Relevantly for present purposes, MOD1 added new condition 21A and deleted and replaced condition 41 of the Project Approval to enable bulk earthworks to be carried out not just within the COS, but also within Precincts 1 and 2 "for the sole purpose of the winning of fill to be placed in the central open space area".
The Director-General's Environmental Assessment Report dated May 2013 ("the 2013 DG EAR") responded to the modification application. Table 3 entitled "Project Approval Modification Summary" stated as follows: Table 3: Project Approval Modification Summary Aspect Description … Project in accordance with plans (Condition 3) Modification to correctly reference the amended ecological management plans and Precincts 1 and 2 bulk earthworks drawings. … Bulk earthworks (new Condition 21A) Modification to specify the details required to be submitted with the construction certificate for the earthworks for the purposes of winning of fill from Precincts 1 and 2 … Earthworks - Limits of Approval (Condition 41) Modification to clarify that no bulk earthworks are to be undertaken outside of the central open space area, other than in Precincts 1 and 2, approved under the modified project approval (08_0200 MOD 1).

[11]

In section "5.2.2 Bulk Earthworks" of the 2013 DG EAR, the report noted that: 5.2.2 Bulk Earthworks Under the project approval, bulk earthworks have been approved across the central open space area to shape the landform upon which the roads, structured and casual open space sites, and environmental enhancement works will be carried out - these earthworks largely consist of filling operations. Bulk earthworks are proposed to be carried out across the site generally in accordance with the plan provided in Figure 17. Although notations on this plan identified that suitable material from Precincts 1 and 2 was to be used as fill material in the central open space area, details of such works were not submitted as part of the project application and the proponent did not seek approval for such works in the Environmental Assessment. As such the department did not assess the environmental impacts of any excavation works outside the central open space area. To specify the limits of the approval in relation to bulk earthworks, the department included the following condition on the project approval (Condition 41): Earthworks - Limits of Approval Unless approved sources of fill material are identified in the approved CEMP or approved bulk earthworks construction certificates(s), no bulk earthworks are to be undertaken outside of the central open space area identified in the approved plans. Note: Fill material required for the Central Open Space area sourced from elsewhere on the site shall be identified in the CEMP and may be subject to separate earthworks approvals over those areas. The proponent argued that the project approval authorises the excavation of land comprising Precincts 1 and 2 for the purpose of winning fill for use in the central open space area, relying solely on the approved plan - YC0229-1P1-SK02 - Phase 1 - Landforming/Earthworks Layout Plan (Figure 17) and their interpretation of Condition 41, being that Condition 41 enables a construction certificate to be issued in relation to the excavation in Precincts 1 and 2, to the extent excavation is necessary to win fill for use in the central open space area, and that Condition 41 of the project approval foreshadows this possibility. While there has been some debate about the interpretation of Condition 41, the department is of the opinion that the winning of fill from Precincts 1 and 2 requires further development approval. External legal advice has confirmed this position. The proponent has agreed to seek approval for the winning of fill from Precincts 1 and 2 for the construction of the central open space area as part of this modification request. The proponent has submitted, as part of this modification request, relevant detailed bulk earthworks drawings (survey drawings, cut and fill plans, erosion and sediment control plan) and a supporting environmental impact assessment report for the winning of fill from Precincts 1 and 2 for the department's consideration. … In light of the above, the department recommends that the wording of Condition 41 be amended such that the limits of the approval in relation to bulk earthworks are clear and unambiguous. The revised wording is: a. No bulk earthworks are to be undertaken outside of the central open space area (as defined in Schedule 1 Part C of this approval) b. Notwithstanding a.) above, bulk earthworks may also be carried out in Precincts 1 and 2 for the sole purpose of the winning of fill to be placed in the central open space area. c. Fill material required for the central open space area sourced from elsewhere on/or the site requires separate development approval. d. Retaining walls and fire trail profiles identified on bulk earthworks drawings YC0229-1E1-ES04 (Rev D), YCO229-1E1-1S05 (Ref A), YCO229-1E1-ES06 (Rev A), YCO229-1E1-ES07 (Rev A) are not approved. Note: Retaining wall heights and fire trail profiles within Precincts 1 and 2 shall be submitted to council for approval in accordance with the conditions of development approval DA10/0800. The department has also recommended a new condition of approval that sets out the details required to be submitted with the construction certificate application for the bulk earthworks activities in Precincts 1 and 2. This includes a requirement for maximum exposed areas to be no greater than 5ha, unless otherwise approved by the Director-General. The department, council and OEH are satisfied with the proponent's proposed environmental mitigation measures for the bulk earthworks activities. The department is therefore satisfied that the bulk earthworks activities for the winning of fill in Precincts 1 and 2 will be managed appropriately.

[12]

Project i … 4 … 4. Project in Accordance with Documents The project will be undertaken generally in accordance with the following documentation (including any Appendices contained therein) a) Environmental Assessment Report: Cobaki Lakes Estate - Project Application No. 08_0200 for Central Open Space, Lake and Riparian Corridor, Volumes 1 and 2 (and all associated Appendices) prepared by JBA Urban Planning Consultants Pty Ltd on behalf of LEDA Manorstead Pty Ltd, dated December 2009; and b) Preferred Project Report: Cobaki Lakes Estate - Project Application No. 08_0200 for Central Open Space and Riparian Corridor, Volumes 1 and 2 (and all associated Appendices) prepared by JBA Urban Planning Consultants Pty Ltd on behalf of LEDA Manorstead Pty Ltd, dated July 2010. c) Addendum to the Preferred Project Report: Cobaki Estate Part 3A Project Application (MP08_0200) for Central Open Space and Riparian Corridor, Volumes 1 and 2 (and all associated Appendices) prepared by JBA Urban Planning Consultants Pty Ltd on behalf of LEDA Manorstead Pty Ltd, dated October 2010.
Critically, condition 21A of Schedule 2 of the Project Approval was in the following terms (emphasis added): 21A. Bulk Earthworks a. The Proponent shall submit the following plans and specifications with an application for construction certificate for the bulk earthworks in the Borrow Areas within Precincts 1, 2, 9 and 11: i. Natural and finished development levels (spot levels and contours) clearly detailed with a legible scale; ii. Sediment and erosion control plans; iii. Evidence that the works will be undertaken under geotechnical supervision by a registered Geotechnical Engineer; iv. All temporary and permanent batter slopes will be appropriately stabilised by way of grass seeding or hydromulch immediately after completion; and, v. An earthworks phasing diagram that defines maximum exposed areas. b. Bulk earthworks for the site are to be limited to a maximum exposed disturbed area (that has not been permanently vegetated) not exceeding a maximum of 5ha at any time to reduce exposed areas, unless otherwise approved by the Director-General. c. Works are to be topsoiled, mulched and seeded immediately after completion to protect the exposed areas from water and wind erosion.
By letter dated 19 June 2013, the Director-General approved an exceedance of the maximum exposed disturbed area specified in condition 21A b. of the Project Approval of up to 0.59 ha in stages 4 and 5, thereby increasing the maximum area for the purposes of condition 21A for earthworks for those stages of the project from 5 to 5.59 ha.

[13]

Historical and Current Development Consents Relating to Cobaki Estate

The development of the Cobaki Estate preceded the granting of the approvals under Pt 3A of the Act. The following development consents were issued by the Council under Pt 4 of the EPAA with respect to Cobaki Estate prior to the Concept Approval being granted: 1. development consent DA 92/315 issued on 5 January 1993; 2. development consent S94/0194 issued on 2 August 1996, and amended on 7 December 2011; 3. development consent DA 96/271 issued on 8 April 1997; 4. amended consent S97/54 (or "S97/0054.02") issued on 16 September 2002. 5. amended consent DA 1262/2001 issued on 8 October 2002; 6. amended consent K99/1124 (or "K99/1124.02") issued on 28 February 2003; 7. amended consent 0130/2001S96 issued on 29 August 2003; 8. development consent DA03/1775 issued on 4 June 2004; 9. amended consent 94/438 (or "D94/0438.04") issued on 6 December 2004; 10. amended consent K99/1124 (or "K99/1124.04") issued on 2 July 2008; 11. amended consent K99/1124 (or "K99/1124.05") issued on 6 March 2009; 12. amended consent DA 1262/2001 (or "1262/2001DA.02") issued on 23 August 2010; and 13. DA 10/0800 issued by the Council on 30 May 2011.
In addition, numerous CCs were issued authorising bulk earthworks within Precincts 1, 2, 9 and 11 (including CC 02/1368 and CC 10/0717, discussed in greater detail below).
The Concept Approval, Project Approval and development consents were all granted to Leda.
The development consents are relevant because a central aspect of Leda's defence is its contention that active areas of disturbance from bulk earthworks the subject of each of the three changes is attributable to bulk earthworks carried out under one of more of the historic or existing development consents. The prosecutor, the Secretary of the Department of Planning and Environment ("the Secretary"), denies this claim and says that the impugned bulk earthworks were all carried out in furtherance of the Project Approval, and therefore those earthworks were subject to the conditions of the Project Approval.

[14]

The Three Charges

There are several observations that must be made in respect of the charges against Leda. First, Leda faces three charges for alleged offences in contravention of s 125(1) of the EPAA concerning alleged breaches of conditions 21A b. and 41 of the Project Approval contrary to s 75D of the EPAA, which states that a person carrying out a Pt 3A project must comply with any conditions to which the project approval is subject.
Part 3A of the EPAA was repealed effective on 1 October 2011. However, the relevant provisions of Pt 3A of the Act continued to apply at all relevant times to the project by reason of the application of the savings and transitional provisions contained in Sch 6A of that Act (see, in particular, cls 2 and 3 of Sch 6A).
Second the charges in matter no 186631 of 2017 ("the first summons") and matter no 186632 ("the second summons") alleges a continuing contravention by the Leda of condition 21A b. of Sch 2 to the Project Approval over a nominated charge period, namely, in the first summons, "on and from 21 April 2014 and continuing to 30 July 2015", and in the second summons, "on and from 31 July 2015 and continuing to 7 March 2017". The charge periods in the first and second summonses are therefore temporally contiguous.
Third, a separate offence is charged for the period on and from 31 July 2015 under the second summons because that was the date on which material amendments to the EPAA came into force creating the three tier sentencing regime by the introduction of ss 125A to 125C of that Act. This materially altered the penalty provision previously applicable to the entirety of the charge period in the first summons.
Fourth, the particulars of the second summons include particulars of the matters specified in s 125A(1)(a) and (b) of the EPAA, namely, that the offence was committed intentionally and was likely to cause significant harm to the environment.
In Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd [2018] NSWLEC 114, Pain J held that those matters were not elements of a separate offence but were matters in respect of sentence. Consequently, her Honour ordered that no evidence was to be adduced in respect of s 125A(1)(a) and (b) at any hearing on liability (at [78]).
Finally, the third charge states that (matter no 86634 of 2017, or "the third summons") between 1 September and 2 November 2015, Leda contravened condition 41 of the Project Approval by carrying out bulk earthworks in an area outside the areas specified in condition 41 (that is, in an area to the east of the Cobaki Parkway, near the intersection of Sandy Lane).

[15]

The Elements of the Offences

As stated above, each of the charges alleges a contravention of a condition of the Project Approval, which is an offence against s 125(1) of the EPAA by reason of a contravention of s 75D of the Act.
Section s 75D provides that: 75D Minister's approval required for projects (1) A person is not to carry out development that is a project to which this Part applies unless the Minister has approved of the carrying out of the project under this Part. (2) The person is to comply with any conditions to which such an approval is subject.
Under the terms of s 125(1) of the EPAA, compliance with any condition to which an approval is granted under Pt 3A of the Act is a matter or thing that is directed to be done by or under the Act. Consequently, if a person does not comply with that direction the person commits an offence as prescribed by s 125(1) of the Act.
The elements of an offence against s 125(1) of the EPAA for contravening s 75D(2) of the Act, which the Secretary must prove beyond reasonable doubt in respect of each of the three charges, are that: 1. Leda is a person; 2. carrying out development; 3. that is a project to which Pt 3A applies; and 4. Leda did not comply with a condition to which an approval under Pt 3A to carry out the project is subject.
There is no doubt that Leda is a person who was carrying out development approved under the Project Approval for the purpose of s 75D of the EPAA. Leda is, moreover, the owner of the Cobaki Estate, the applicant for and holder of the Project Approval (including MODs 1 to 3), and is the applicant for, and holder of, the CCs granted under the Project Approval.
In respect of each of the three charges, the only element of the offences that was contentious was whether or not Leda complied with the relevant conditions attached to the Project Approval. In respect of each of the first and second summonses, the issue is whether Leda complied with condition 21A b. of the Project Approval, as in force during the respective charge periods. In relation to the third summons, the issue is whether Leda complied with condition 41 as in force during the charge period nominated in the summons.
The remaining elements of the offences were not in dispute. They have, in any event, been demonstrated to the requisite degree by the evidence comprising the applications for, and the granting of, the Pt 3A approvals, including MODs 1 to 3, and by the evidence that Leda was carrying out the project at the Cobaki Estate.

[16]

2017 Mills Oakley Letter Admitting Breach of Condition 21A b.

Before the Court was a letter dated 19 April 2017 from the solicitors for Leda, Mills Oakley, to the Department of Planning and Environment ("the DPE"), which relevantly said the following: We refer to our letter of 19 October 2016. We also refer to the subsequent meeting we (and the directors of our client) had with Mr Marcus Ray, Deputy Secretary (of the Department), on 8 December 2016. At the meeting on 8 December 2016 we informed Mr Ray that after: • the retrieval and compiling of documents to comply with the 'section 119J' notice issued by the Department; • a review by our client of those documents; and • a consideration by our client of the possible adverse environmental impacts of relevant actions, our client may be in a position to admit to certain matters. We explained - on behalf of our client - that we expected an early and frank admission by our client would reduce or eliminate the need for the Department to divert resources in what might otherwise be a costly and complex investigation. On 30 March 2016 you informed us (by email) that this submission must be provided to you by 13 April 2017. Exposed bulk earthworks (condition 21A(b)) Our client admits for part of the period between January 2014 and September 2016 works that were regulated by project approval 08_0200 were not carried out in strict compliance with condition 21A(b). That is, in carrying out bulk earthworks under the project approval, the maximum exposed disturbed area relating such works (that had not been permanently revegetated) exceeded the maximum of five hectares set by condition 21A(b). Our client was the beneficiary of the work that was carried out and is liable for this breach under section 75D of the former Part 3A provisions of the Environmental Planning and Assessment Act 1979 (the Act). In considering what action the Department will now take, we ask the Department to bear in mind that there was no material adverse environmental impact from the breach. Condition 21A(b) was inserted as a result of 'Mod 1'. It arose from submissions made by the Tweed Shire Council (the Council). The submissions were made specifically (and only) in relation to the control of dust. Whilst this motive is not explicit in the Director-General's assessment report for Mod 1, it is explicit in section 5.4 of the report for 'Mod 2': [T]he 5ha limit is a requirement to reduce the impact of dust emissions on nearby residents. We are instructed that an analysis of the records (kept by the successive environmental officers, the Council and the certifier) shows that, over the four-year period from August 2012 to the present: • Five people made a total of eight complaints about dust in the approximately three-month period between 11 October 2013 and 4 December 2013. Five of these complaints were from three people about dust on the three days of 7, 8 and 12 November 2013. These events occurred when earthworks were active in Cobaki's precincts 1 and 3 - immediately adjacent to the Currumbin Waters residential area. The complainants were apparently located predominantly in Sawtell Drive, but also at Ajax Court. We enclose a map showing these addresses. • There were no dust complaints between December 2013 and February 2016. On 25 February 2017 a complaint was made concerning dust nuisance on the prior weekend. Acknowledgement was made by the complainant that there were trespassers (four-wheel drive vehicles and off-road bikers) on the property and that they were the cause of the dust problem. Our client has observed that the problem is not caused by trespassers riding on the site's gravel roads or open earthworks areas. The problem arises from trespassers' activity over sloping areas that have never been the subject of earthworks. Their activity creates tracks - resulting from the frequency of this use - from which topsoil dust plumes result. We are instructed that: • None of the above dust complaints were caused by exposed bulk earthworks areas exceeding the limits of approval. • None of the complaints were made by residents in locations near to, or that might conceivably have been affected by, earthworks in areas of the site (other than in precincts 1 and 2). … Apology Our client acknowledges that breaching conditions of the project approval and the development consent is not acceptable. Even if there is no adverse impact from a breach, our client acknowledges that conditions must still be obeyed. … Our client deeply regrets and apologises for the two breaches outlined above. There was clearly a failure on our client's internal systems. Our client acknowledges that such failures cannot be tolerated and it must ensure that such failures do not re-occur. … Next steps In response, our client submits the following: • Under the Department's Compliance Policy - in circumstances where there has been no or only low environmental harm - a penalty notice would not normally be issued. The only identified exception is when there is a need to deter further breaches because (for example) the offender submitted false and misleading information about the breach. No false or misleading information has been provided. Our client has co-operated fully with your compliance officers. This letter represents a further step in our client's co-operation with you. • The breach of condition 21A(b) offence is at the lower end of the scale of seriousness, as there has either been no material environmental harm as a result of this breach. • The creation of the stockpile did involve some minor transitory environmental impact. However, this impact would not have been avoided if the correct procedure had been followed (ie obtaining the written consent of the SWAC). Accordingly, this breach is still at the lower end of the scale of seriousness. It also reflects a procedural failure in 2007 and 2008. Considerable time has elapsed since this procedural failure occurred. • Given our client's co-operation and its apology (set out above), these breaches should be assessed as only having low significance. • An appropriate response in the circumstances would be to issue a warning or advisory letter (ie an official caution) in relation to both breaches.

[17]

Whether the Project Approval Affected the Operation of Pre-Existing Consents

Leda submitted that the Secretary's failure to exclude disturbances arising from bulk earthworks carried out under pre-existing or historical development consents was fatal to the Secretary's case.
In particular, Leda submitted that bulk earthworks carried out by it pursuant to pre-existing consents had to be excluded from the hectare limit imposed by condition 21A b. of the Project Approval upon the proper construction of that condition. This was because Pt 3A did not apply to the carrying out of development that had been authorised by a consent in force under Pt 4 prior to the declaration of the application of Pt 3A to the project for three reasons.
First, as a matter of law, the deeming provisions of Pt 3A were not engaged because the Pt 3A declaration to the project excluded prior consents. That is, neither s 75ZA of the EPAA nor cl 8M of the Environmental Planning and Assessment Regulation 2000 had the effect of nullifying pre-existing Pt 4 consents and Pt 5 approvals upon the approval of the Cobaki Estate project on 28 February 2011. The declaration of the application of Pt 3A to the project expressly excluded the prior consents. This avoided the effect of s 75B(3) of the EPAA.
Second, as a matter of the proper construction of the Concept Approval, the pre-existing Pt 4 consents and Pt 5 approvals were preserved by the Concept Approval. This was clear on the face of the Concept Approval: (a) from the outset the application specifically sought to preserve these consents and this was endorsed in the grant of Concept Approval. Condition A3 of Schedule 2 of the Concept Approval listed a number of documents that the project was to be generally undertaken in accordance with. The first document is the Environmental Assessment Report Part 3A Concept Plan by JBA Urban Planning Consultants dated December 2008 ("the 2008 EAR"). The pre-existing development consents were listed in Table 1 and were depicted in Figures 6 and 7 of the 2008 EAR, which noted that (p 14): (1) Leda had declared that it intended to continue with, and complete works under, the pre-existing development consents; and (2) the works under the development consents were not in conflict with the proposed works under the Concept Plan; (b) Part B of Schedule 1 of the Concept Approval specifically referred to seven pre-existing development consents approved by the Council: Tweed Shire Council Consents This concept plan does not affect DA 92/315, DA 94/438, DA S94/194, DA 96/271, DA S97/54, DA K99/1124 or DA 1262/2001 approved by Tweed Shire Council. (c) and condition C18 of Part 3 of Schedule 2 of the Concept Approval referenced the pre-existing development consents approved by the Council. Condition C18 required future applications to "outline the status" of the consents and to "include a detailed description of how these consents relate to the application". This was done, for example in the case of development consent DA10/0800 issued by the Council in 2011.

[18]

Principles of Construction Applicable to a Pt 3A Approval

All three charges give rise to the issue of the proper construction of the Project Approval in order to determine whether, on the evidence before the Court, the Council has demonstrated beyond reasonable doubt that the conditions were contravened by Leda during the charge period.
In Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4, the Court set out the principles of construction of development consents, which are no less apposite to the construction of approvals granted under Pt 3A of the EPAA (at [357]-[358]): 1. the ordinary rules of construction and principles of interpretation apply to a development consent as with a statutory instrument (Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 at [97]-[99]). As discussed in SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 367 ALR 206 (at [20], citations omitted): 20. The starting point for ascertainment of the meaning of a statutory provision is, of course, the text of the provision considered in light of its context and purpose. Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies. The majority of the Court of Appeal held that there was no reason to restrict s 10(1A)(b)(ii) to incapacity for work outside the police force caused by the member having been hurt on duty when a member of the police force. But, with respect, there are in fact a number of textual and contextual indications in ss 7, 10(1A)(b)(ii), 10(1A)(c) and 10B that the operation of s 10(1A)(b)(ii) is so limited. 1. a consent is to be construed according to its terms, having regard to its enduring nature. A consent has an enduring nature because it is not personal to the proponent but is a public document operating in rem for the benefit of third parties such as subsequent owners, occupiers and security holders, and in some respects is equivalent to a document of title (House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at [23]; Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 at [4] and Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277; (1970) 19 LGRA 321 at 324). The enduring nature of a consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money acting upon it and who is likely to wish to sell the land at some point in time (House of Peace at [41]); 2. a consent must be read as a whole. The effect of doing so may be to depart from the material and ordinary meaning of the words of a provision where it is necessary to do so to avoid absurdity or inconsistency with the rest of the instrument (Tempe Recreation (D.500215 and D.1000502) Reserve Trust v Sydney Water Corporation [2014] NSWCA 437 at [53]-[54]); 3. the mere approval of a development application does not necessarily have the effect of incorporating everything stated in the application, such as assertions of intention (Royal Ryde Homes at 323); 4. the consent is to be construed not as a document drafted with legal expertise, but to achieve practical results (Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 at [36] and Ko-veda Holiday Park Estate at [96]-[99] and [105]); 5. as a general rule a consent should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it. That extrinsic evidence is not led to vary the consent but to identify a thing or place referred to in it. Evidence as to the nature or physical features of the land may also be admissible for that purpose (those features observable by a third party at the time of the consent) (Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 at [44] and Parramatta City Council v Shell Co of Australia [1972] 2 NSWLR 632 at 637); 6. plans and other documents may be incorporated into a development consent expressly or by necessary implication (Allandale at [24], [43]-[48] and [153]-[163]). A document attached to a development consent or referred to in it for the purpose of identifying or describing something dealt with in the consent, will for that reason be expressly incorporated in the consent (Allandale at [45]); 7. the nature and extent of the approved development must be determined by construing the document of approval, including any plans or other documents which it incorporates, aided only by evidence admissible in relation to the construction which establishes, or assists to establish, the true meaning of the document as the unilateral act of the relevant authority; not the result of a bilateral transaction between the applicant and the council. Evidence of the nature of the site is therefore generally admissible for this purpose, as is, in appropriate cases, evidence as to the meaning of the marks on plans, or indeed, the meaning of the absence of particular marks (Shell Co of Australia Ltd at 637); 8. communications between the parties do not form part of the matrix relevant to the construction of a consent (Westfield Management at [41]); 9. a consent that requires development to proceed "generally in accordance with" approved plans, allows for some latitude and deviation from the approved plans of a relatively minor nature (Oshlack v Irongates Pty Ltd (1997) 130 LGERA 189 at 196-197; Wingecarribee Council v CSR Limited (unreported, Land and Environment Court of NSW, no 40100 of 1993, Stein J, 11 November (1993) at 7; Katoomba Gospel Trust v Blue Mountains City Council [1994] NSWLEC 107 per Talbot J and Grace Bros at 406). However, the question of whether a development is "generally in accordance" with approved plans is one of fact and degree in the context of the overall development (Oshlack at 196 and Wingecarribee at [7]); and 10. the conditions attached to a project approval must be construed having regard to the desirable inherent flexibility that the statutory scheme in Pt 3A of EPAA promotes (Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396 at [23] per Jagot J; Ulan Coal Mines Ltd v Minister for Planning (2008) 160 LGERA 20 at [80] per Preston J and Pittwater Council v Minister for Planning (2011) 184 LGERA 419 at [48] per Pain J). The scale of the projects subject to approval under Pt 3A, which are often complex, extensive and multi-stage projects, make the retention of such flexibility appropriate and inevitable (Ulan Coal Mines at [80] per Preston J).

[19]

Issues for Determination Arising From the Proper Construction of Condition 21A b.

In construing condition 21A b. three principal issues arose: 1. the geographical ambit of the condition; 2. the temporal ambit of the condition; and 3. the ambit of the condition referable to the purpose for which the bulk earthworks were carried out.
First, in terms of the geographical ambit of the condition, the Secretary contended that when regard is had to the definition of "site" in the Project Approval, properly construed, the limit imposed condition 21A b. that bulk earthworks for the site were to be limited to a maximum disturbed area (that has not been permanently vegetated) not exceeding 5 ha applied across the whole of the Cobaki Estate, and was not confined to those parts of the site on which bulk earthworks were approved under Part Two of the Project Approval. For the reasons elaborated upon below, the Court does not accept that the geographical ambit of condition 21A b. extended to the whole of the Cobaki Estate, rather it is confined to the areas the subject of Part Two of the Project Approval (the COS, Precincts 1 and 2, and subsequently under MOD2, Precincts 9 and 11, and then under MOD3, the SSPP).
The Secretary argued that, in any event, the limit prescribed by condition 21A b. had been continuously breached by Leda during the charge periods stated in the first and second summons as evidenced by the expert report of Dr Martens dated 22 June 2018. This finding was axiomatic unless the Court accepted the evidence of Dr Martens that the calculation of "exposed disturbance area" in the condition should exclude: 1. the areas of exposed fill resulting from the bulk earthworks; and 2. the areas of exposed cuts located in areas in which bulk earthworks have been approved under historic consents.
Second, in relation to the temporal ambit of condition 21A, the Secretary submitted that bulk earthworks carried out prior to MOD1 should be taken into account for the purpose of calculating the exposed disturbed area if that area remained undisturbed after works have commenced under that modification approval.
In light of the proper construction of condition 21A b. by the Court (see below) that only bulk earthworks carried out under the Project Approval are to be included in the calculation of the maximum exposed disturbed area prescribed by the condition, the Court rejects this submission. However, even if pre-existing bulk earthworks in the project area are excluded, unless the Court accepts both propositions of Dr Martens referred to above, the evidence establishes that the limit has been breached by Leda.

[20]

The Meaning of "the Site" in Condition 21A b. of the Project Approval

As agreed to by Leda, the interpretation of condition 21A b, in particular, is central to the charges contained in the first and second summons.
The first issue of construction to be decided was to what geographical areas did condition 21A b. relate, that is, what was the "the site" referred to in the condition.
Condition 21A b. expressly applies to bulk earthworks for "the site". In "Part C - Definitions" of the Project Approval, the term "site" is defined as having the "same meaning as the land identified in Part A of this schedule", that is, Schedule 2.
The expression "the site" is described in Schedule 1 of the Project Approval in the "Part A - Table" as "Cobaki Estate, Cobaki", comprising various parcels of land listed by Lot description and DP number.
A reference to "Cobaki Estate" is defined to mean "the site the subject of the Concept Plan Approval". In the Concept Approval, the "subject site" is given "the same meaning as the land identified in Part A of this schedule", that is, Schedule 1 of the Concept Approval.
As can be seen from Schedule 1 in both the Concept Approval and the Project Approval, the Lot and DP numbers of the "site" are the same.
According to the affidavit evidence of Mr McLachlan (a Senior Compliance Officer in the DPE) sworn on 19 May 2017, the land comprising the Project Approval is approximately 605 ha.
Consequently, the "site" referred to in condition 21A b. referred to the whole of the Cobaki Estate, and was not confined to those parts of the site on which bulk earthworks were approved under Part 2 of the Project Approval (that is, the COS, Precincts 1 and 2 and, subsequently under MOD 2, Precincts 9 and 11, and later under MOD 3, the SSPP).
The Council relied on the basic proposition that where an instrument defines a term such as the "site", where that term is used in the instrument it is presumed to have the defined meaning.
Nevertheless, it is well established that a definition "is no more than an aid to the construction of the statute" (Gibb v Federal Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628 at 625, Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 at [103] and Heatscape v Mahoney [2017] NSWCCA 135; (2017) 223 LGERA 66 at [37]), and that there are instances in which recourse to defined terms must be modified according to the circumstances in which the term is sought to be used (Tovir Investments v Waverley Council [2014] NSWCA 379 at [54] per Leeming JA).

[21]

The Meaning of "Bulk Earthworks"

Unlike the word "site", the expression "bulk earthworks" is not defined in the Project Approval.
The Secretary submitted that the term does not have a specialist or technical meaning and that the words should be accorded their everyday ordinary meaning, albeit in the context of development activity. The everyday meaning of the words includes works involving the movement of earth (including topsoil and subsoil sand and rock) in large volumes. This would encompass all of the cutting and filling works which have taken place pursuant to the Project Approval, including filling for roads, and the creation of large stockpiles as part of the process of moving volumes of earth from one part of the site to another, irrespective of whether those stockpiles are comprised of topsoil, subsoil, sand or rock.
By contrast, Leda argued that the phrase "bulk earthworks" was a term of art and that it was only by reference to the industry in which those words are used that the true meaning of the term can be ascertained.
Leda's expert, Dr Martens, purported to give evidence to the Court as to the meaning of the phrase "bulk earthworks" in the construction industry. In his report dated 22 June 2018 he stated that the term "bulk earthworks" is used in the construction industry to represent "larger scale 'bulk' earth forming activities required to undertake the land development" which "can include both cut and filling operations".
The Secretary, on the other hand, relied on the evidence of Mr Andrew Macleod, an environmental scientist specialising in erosion and sediment control and social science. Mr Macleod affirmed an affidavit on 22 November 2018, wherein he refuted the evidence of Dr Martens. Mr Macleod stated that the meaning of the expression "bulk earthworks" in the construction industry was the same as its ordinary meaning, namely, "the removal, moving or adding of large quantities of soil or rock from one area to another", including the "stockpiling large quantities of soil or rock material".
Critically, Dr Martens differed from Mr Macleod insofar as Dr Martens opined that "stockpiles…do not form part of the bulk earthworks, because they do not form part of the final design landform". According to Dr Martens, if earthen material was excavated from a borrow area and placed over an area of land as fill, the whole transaction could be regarded as bulk earthworks, but if the same earth, after excavation, was placed in a pile instead of, or as a step prior to, placing it as a layer of fill, it was not be regarded as bulk earthworks.

[22]

Meaning of the Expression "Maximum Exposed Disturbed Area (That Has Not Been Permanently Vegetated)"

Again, this expression was not defined in the Project Approval. The Secretary once submitted that the phrase, construed as a whole, should be given its ordinary meaning.
The subject matter of condition 21A b. is bulk earthworks, and the outcome which is mandated by that condition is "a maximum exposed disturbed area (that has not been permanently vegetated)" of 5 ha unless otherwise approved. For these two integers of the expression to work harmoniously together, the Secretary argued, the "exposed disturbed area" must be the area disturbed by the bulk earthworks which are the subject of the condition. Therefore, the "exposed disturbed area" must be the exposed area resulting from both cutting and filling carried out under the Project Approval.
The everyday meaning of the word "exposed" is an area where the surface of the earth is exposed, and this may occur as a result of either cutting or filling; exposed must mean exposed to something. In the case of earthworks, it means exposed to the elements. Therefore, a newly filled piece of ground or a stockpile, whether compacted or not, is as exposed to the elements as ground that has been recently excavated. The Secretary relied on Mr Macleod's expert opinion that the expression "exposed disturbed area" has the same meaning in the construction industry as it does in everyday common usage.
In light of its construction of the term "site" in condition 21A b, Leda submitted, by contrast, that the works in borrow pits in Precincts 1, 2, 9 and 11 were "cuts" to extract structural fill. In this context, the composite phrase "exposed disturbed area" means the area "cut" or "exposed" in the process of the winning of the structural fill from the borrow pits in those areas. This construction was, Leda further contended, reinforced by the fact that condition 21A b. is the only condition in the Project Approval where the word "exposed" appears.
Leda relied on the evidence of, Dr Martens who was of the opinion that the term "exposed disturbed area" includes "areas where the natural landform has been disturbed by being exposed or 'revealed'". Specifically, Dr Martens was of the opinion that "exposed disturbed area": 1. included areas where "natural or stable land has been excavated and left in a disturbed state"; 2. excluded structural fill areas where "structurally engineered material that is placed and compacted in layers so as to minimise and mitigate against erosion potential and provide long term stability"; 3. excluded sealed or unsealed roads because "these areas are not to be topsoiled, mulched or seeded after completion"; and 4. excluded self-vegetated areas because "these areas are not likely to require protection from wind and water erosion".

[23]

Leda Has Contravened Condition 21A b.

The Council relied on two principal types of evidence to prove that Leda had breached condition 21A b. First, inspections by Mr McLachlan, and second, the analysis of Dr Martens and Mr Watts of aerial photographs taken between 21 April 2014 and May 2017. Additional evidence was provided by Mr Shaw.

[24]

Inspections by Mr McLachlan

Mr McLachlan observed exposed disturbed areas during his inspections of the site on various dates specified in his affidavit. On some of those dates he used a hand-held GPS device to locate points around the perimeters of the areas he observed as being exposed and disturbed. Often photographs were taken of his observations. Subsequently, Geographic Information Systems ("GIS") officers within the Department used the GPS data obtained by Mr McLachlan to transform the data into polygons which were transposed aerial images, then measured the areas of the polygons the results of which were used to calculate the total of the areas that he had identified as exposed and disturbed.
Mr McLachlan's written evidence is summarised as follows. On 2 July 2015, Mr McLachlan observed large exposed areas in Precincts 9 and 11. He observed fresh tracks and scrapings in both Precinct 9 and Precinct 11, and in Precinct 9 he saw at least one excavator with a toothed bucket attachment loading material into a large earthmoving truck. He did not take GPS points during this inspection.
On 21 July 2015, Mr McLachlan observed a large exposed area in Precincts 1 and 2. He took GPS waypoints every 5 to 20 metres around the perimeter of the area (but did not include roads and did not include a sediment basin that he saw in Precinct 2).
The subsequent work of the Department's GIS officers demonstrated that the disturbed area in Precinct 1 had an area of about 13.65 ha and the disturbed area in Precinct 2 had an area of about 17.47 ha.
Mr Yeats, a consultant contracted to the Leda group of companies who worked out of Leda's Surfers Paradise office and who assisted Leda with master planning and the approval process for the Cobaki Estate, was present during this inspection. While Mr McLachlan and Mr Yeats were standing somewhere within Precinct 1 or 2 they had the following conversation: McLachlan: What was the purpose of the works in precinct 1 and 2? Yeats: To borrow material for the Central Open Space.
Mr McLachlan also saw a large exposed area in the COS, approximately half of which had topsoil placed on it. He took GPS points around the perimeter of these exposed areas (but did not include the road on the southern perimeter of the COS or a drain on the eastern side of the COS). The subsequent work by the Department's GIS officers indicated that the disturbed area in the COS had an area of about 18.04 ha.

[25]

The Evidence of Mr Watts

Mr Watts, who was an expert in the interpretation of aerial photographs, analysed a series of aerial images of the site over the course of the relevant charge periods and identified and calculated exposed disturbed areas. He affirmed two affidavits: the first on 24 May 2017 ("the first Watts affidavit); and the second on 18 October 2017 ("the second Watts affidavit).
In respect of both affidavits, Mr Watts's methodology was as follows: Each orthophoto together with successive pairs of orthophotos were visually examined to determine the extent of change to the landscape between consecutive dates of photography. In the FINDINGS section of my report, I describe what I can see in each of the twelve aerial images I have analysed in relation to areas of ground which are "disturbed". I treat an area of ground as "disturbed", if, upon examination of the image, I can see that the natural surface of the ground that area has apparently been disturbed by earthworks or roadworks and remains exposed without vegetation cover as at the date of the image. The earliest and first aerial image I analyse is the aerial image of 5 August 2012. In relation to this image I identify areas of ground which I can see are disturbed as at that date. I also provide some description of what I can see in relation to the nature of the ground disturbances and I calculate the area (in hectares) of the disturbed areas. In relation to each of the subsequent aerial images I have analysed (subsequent to 5 August 2012), I identify from what I can see in the image areas of ground which are newly disturbed as "disturbed" if that area of ground was not visibly disturbed in the preceding aerial image. I treat an area of ground as "re-disturbed" if that area of ground has experienced new disturbance, has also been visibly disturbed in the preceding aerial image and if it remains disturbed, without vegetation cover, as at the date of the later aerial image being analysed. I discuss what I can see in the images in relation to the areas of disturbance and re-disturbance and calculate the areas (in hectares) of disturbance and re-disturbance. I do not treat as "disturbed" or "re-disturbed" an area of ground which is clear of vegetation and where I believe this has occurred by natural causes and not apparently by manmade earthworks. Additionally, in relation to each of the aerial images I have analysed that were taken after 5 August 2012, I treat as "revegetaed" an area of ground if it was identified by me in the preceding aerial image as "disturbed" or "re-disturbed" area (thus without vegetation), but if I can see in the later aerial image being analysed vegetation covering the surface of the ground which was not visible in the preceding aerial image. It is noted as revegetated regardless of whether this vegetation had been deliberately planted or naturally regenerated.

[26]

The column marked "Date" in the table is a references to the dates upon which the aerial photographs analysed by him were taken.
Significantly, Mr Watts's calculations were not challenged in cross-examination.
Leda sought to discredit Mr Watt's evidence on a number of grounds. First, it criticised him for failing to account for bulk earthworks permitted under consents other than the Project Approval. However, because these consents had no bearing on the requirement that Leda comply with the conditions of the Project Approval, including condition 21A b, this complaint may be rejected.
Second, Leda argued that Mr Watts's calculations included areas beyond the borrow pits from the four precincts in condition 21A b. Again, given the proper construction of condition 21A b. as determined by the Court, this contention can be dispensed with. In any event, his calculations of exposed disturbed area after CC 107 was issued make it beyond doubt that the 5.59 ha limit for such works was exceeded by Leda during the charge periods.
Third, Mr Watts's calculations included areas that went beyond that which was "exposed disturbed area" pursuant to condition 21A b, namely, "disturbed" areas where "the natural surface of the ground in the area has been apparently disturbed by earthworks, or roadworks and remains exposed without vegetation cover" (as stated in the first Watts affidavit). But on any reasonable reading of this description by Mr Watts, it is plain that his reference and description of "disturbed" areas was a reference to "exposed disturbed area" under condition 21A b.
To the extent that Mr Watts included "road earthworks" in his calculations, these only included roads or tracks of a "more permanent nature where bulk earthworks have occurred for either the first time or have re-occurred." It did not include temporary roads or tracks and, contrary to Leda's submission, there was no suggestion that sealed roads were included. Although it was Dr Martens's opinion that a civil engineer would not have included sealed or unsealed roads as "exposed disturbed areas" resulting from bulk earthworks because they "are not to be topsoiled, mulched and seeded after completion", this evidence does not engage with the purpose of condition 21A b. which is to mitigate adverse environmental impacts caused by, amongst other things, dust and sediment run-off, by limiting bulk earthworks resulting in exposed disturbed areas to 5.59 ha. Whether a consequence of road earthworks, or bulk earthworks carried out for some other purpose (for example, cut and filling activities), if exposed disturbed areas result, irrespective of the cause, then condition 21A b. applies.

[27]

The Evidence of Mr Shaw

As stated above, Mr Shaw was the PCA for the project's COS bulk earthworks from January 2013 to May 2016. In his affidavit sworn 13 December 2017 he deposed to observations made my him limited to those works carried out within the COS and Precincts 1,2,9 and 11, for the purpose of his certification.
Mr Shaw deposed that in early 2013 he was engaged by Leda to issue CCs for the proposed bulk earthworks for the COS "which formed part of the Project" under the Project Approval, as well as issue CCs for works in Precincts 1,2 and 6 pursuant to DA 10/0800 and DA 10/0801, respectively, issued by the Council.
During the project, he issued a series of COS CCs commencing with CC 107 dated 21 June 2013, and ending with CC 107D dated 26 February 2017, concerning the addition of fill in the SSPP.
Mr Shaw personally carried out 21 inspections during the construction stage of his engagement as PCA for the COS works from 1 August 2013 to 29 April 2016. The observations of his inspections of Cobaki Estate from February 2014 to May 2016 were contained in his affidavit, the detail of which it is not necessary to repeat.
In relation to condition 21A b. of the Project Approval, Mr Shaw gave the following evidence of breaches of condition 21A b: 100 I recall the Earthworks Phasing and Sequencing Plan prepared by Yeats dated 13 June 2013 and Drawing YC0229-1E1-SK15 Revision A dated 11 June 2013 was submitted to me by Leda as part of the CC107 application dated 21 June 2013 to demonstrate compliance with Condition 21A. I subsequently approved and stamped the Earthworks Phasing and Sequencing Plan prepared by Yeats as part of CC107 dated 21 June 2013; 101 I note that the Sequencing Plan…only covered works in the upper areas of the COS (ie Stages 1, 2, and 3); 102 In the early stages of the project (ie for Stages 1, 2, and 3) I referenced the approved Earthworks Phasing and Sequencing Plan during my inspections; 103 In late December 2013 I recall receiving a dust complaint from a resident in a neighbouring property to the north (ie Mr Fewings at 9 Ajax Court Currumbin Waters). As part of my investigation into this complaint in January 2014 I recall requesting Craig Siganto of Yeats to provide a plan of the current area of disturbed surface and if over 5ha to come up with an urgent plan to reduce back to below 5ha. I recall receiving two hand marked plans from Mr Siganto showing the current areas of exposed and topsoiled/seeded areas. At that time I recall the extent of exposed surfaces within the COS looked to be under 5ha but that the overall exposed surface area for the site exceeded the 5ha limit, primarily due to the exposed surfaces in the P1 & P2 borrow areas. During a subsequent site visit on the 7th February 2014 I confirmed the above observations in the field and directed Leda to stabilise the exposed surfaces in P1 and P2. This request was again repeated after my inspections on 7 March 2014, 20 August 2014, and 30 September 2014; 104 During an inspection on 3 December 2014 I was again concerned with the extent of exposed surfaces on site not only in P1 and P2 but for large areas on the Stage 1/2 boundary in the lower areas of the central open space totalling an area in excess of 5.59ha. My inspection report contained a direction to topsoil and seed these areas; 105 I recall that the large undisturbed area of P1 and P2 remained unstabilised for subsequent inspections up until Feb/March 2016; 106 I recall that prior to commencement of any earthworks within the COS that a large area of the site was already in a disturbed state, including some areas of P1 and P2.

[28]

The Evidence of Dr Martens is Not Accepted

In his affidavit sworn 22 June 2018, Dr Martens was asked to opine on the maximum exposed disturbed area for the periods 21 April 2014 to 30 July 2015, and from 31 July 2015 to 7 March 2017. In doing so, Dr Martens considered two alternative assumptions with respect to "the site" in condition 21A b: first, that the site was the whole of the Cobaki Estate; and second, that the site was "the area of works authorised under 'Part 2 - Bulk Earthworks and Civil Works' of the Project Approval". Because the Court has determined that the definition of "the site" in condition 21A b. excludes the former, this aspect of his evidence need not be considered.
Dr Martens also considered two alternative assumptions in respect of the bulk earthworks carried out under pre-existing historic consents, namely, first, that they should be excluded, and second, that they should be included. In both scenarios, Dr Martens excluded construction roads because they were not the subject of revegetation. Roads were identified as such if they were evident during the site inspection; evident on plans; or evident on aerial photographs. Also excluded were areas where vegetation appeared to have been established in an aerial photograph.
In relation to the bulk earthworks that he considered ought to be excluded, Dr Martens excised areas from the various aerial imagery analysed by him that he considered were areas of active cut and fill carried out under pre-existing consents.
Finally, having regard to his definition of "exposed disturbed area" which excluded areas of fill, Dr Martens delineated areas of cut and fill visible on the aerial photographs. For the areas of cut eight visual factors were utilised (whether the area was an existing rock quarry; shadows indicating an excavation face; surface texture; the presence of excavation machinery in both past and present photographs; whether the area was an existing borrow pit; whether the area was previously classified as cut and no substantial changes to landform were observed; and evidence of blasting activities). For the areas of fill, 10 visual factors were used (whether the area was filled; shadows indicating a constructed batter; surface colour and texture; surface texture gravels indicating engineered fill was present; edge geometry indicating dumping and spreading of fill; water covered areas or ponding; the evidence of filling machinery in past and present photographs presence of material stockpiles; and areas previously classified as fill areas where no substantial changes to landform were observed).

[29]

There are, however, a number deficiencies in Dr Martens's evidence that undermine its reliability. For the reasons given below, the Court places limited weight on his evidence and prefers, instead, that of Mr Watts.
First, for the reasons given earlier, the Court does not accept his definition of "exposed disturbed area", a definition which informed the entirety of his expert evidence.
Second, when asked in cross-examination whether or not he had included in his definition of active areas of cut or fill areas that had been topsoiled but did not have vegetation cover, he indicated that he had (T493.1). This is important because there is evidence that at various times there were significant areas within the COS on which topsoil had been placed but where vegetation had not been established. The uncontested evidence of Mr McLachlan of his site inspection on 21 and 22 July 2015 demonstrates this. According to Mr McLachlan, on that occasion there was an area of approximately 18 ha in the COS of which approximately half had topsoil placed on it. Photographic evidence was consistent with his visual observation.
Dr Martens was taken to two examples of areas visible in the aerial photograph of 6 October 2014 within the COS which he did not include as areas of active cutting or filling. In relation to the first area, the following exchange took place (T494.1-496.05): Q. You see that image of 6 October 2014? A. Yes. Q. If you look at the central spine running down the central open space, do you see that as you come to the left‑hand ‑ if you move from right to left, heading south from right to left, you come to a point where you can see a rather distinct area with some looping lines that are east‑west in orientation? A. Yes. Q. You see, if you go to your depiction of the 6 October aerial image ‑ pardon me a moment and I will get you a page number ‑ I'm sorry, sir. Yes, if you go to your page 61, you can see that the same area, can't you, at about, if we are looking at the numbered grids, if you come down slightly to the left of the number 4? A. Yes. Q. You come down a little bit more than halfway down the page, you can see that distinct lined or looped lined area? A. Yes. Q. If you go to your page 62, it is evident that you have not included that as an area of cut or fill? A. Yes, yes. Q. Why not? A. It looks like an area that's complete. Q. When you say complete, you're not suggesting ‑ when you say it's complete, do you mean it's been topsoiled? A. Well ‑ just give me a minute. So, some of the areas which were topsoiled, there was an area where, for example, precinct 2, from memory, that had topsoil on it that I classified as having ‑ as being filled and then there were some other others where my view was that it had been topsoiled, but it looked like it was stable and it was no longer necessary to classify it as fill, that's one of those areas. Q. When you say it appeared stable, what do you mean by that? A. Well, as I said yesterday, this is a process of going backwards and forwards between different photographs at different times and that area looks like it's quite stable and unchanged in the photographs that follow in the time after that. Q. You mean stable earth? A. Yes, I suppose I do. Q. But it is exposed, isn't it? A. To be honest, I can't tell with my poor eye sight at this scale without looking at the aerial photographs in more detail. Q. See, if you look at - A. My judgment was‑‑ Q. Sorry, go on? A. My judgment was that it shouldn't be classified as fill or cut, following photograph ‑ 6 October ‑ 9 April 2015, it looks vegetated to me. Q. Sorry, in which photo? A. 9 April 2015. It looks like it's vegetated to me. Q. Let's assume it has, by 9 April, why would you exclude it on 6 October ‑ sorry ‑ let's assume it has, by 9 April 2015, why would you exclude it from the 6 October 2014 photo? A. It was a judgment that I made when I looked at the photographs, that I felt that it should have been included in the fill area. Q. Surely, you've got to do a bit better than that to explain why you've done it, sir, than simply saying, "Well, that's my judgment and that's it"? A. Well, there's an area adjacent to that as well, it's quite similar in terms of his visual appearance, that I've also left off. Q. So, I suggest to you, you left that off when you should have included it? A. Well, look, I'm ‑ as I said, I think in paragraph 18, there is uncertainty with analysing aerial photographs. Without actually being there on the day, one cannot be certain and that is the nature of aerial photography analysis. Q. If you look at the same image, that is at 62, your page 62 and to the north of the letter J, that's another area that you haven't included that area that almost starts with a pointy nose coming down just under the letter J; do you see that? A. Yes. Q. If you look at the 6 October image that forms part of, is it page 9 of tab 1, exhibit D, do you see that area in that photo as well, can't you? A. Yes. Q. Why did you exclude that from your area of active cut or fill? A. It didn't occur to me to be the subject of fill. Q. What did you think it was? A. It looked like stable ground with vegetation developing. Q. When you say with vegetation developing, it's quite clear, isn't it, it's not an area that's vegetated? A. No, it's not quite clear. By contrast there are areas where it is very clear where you get that orange, yellowy sort of reflectance. It's not clear on these photographs. I think I said this morning that there are instances when grass can appear like soil and grass can appear as dry grass, which is the ground or as green grass, which is obviously a very different colour to brown. Q. I suggest to you that you've excluded that area without justification from the areas that are shown as actively disturbed at the time of that image; you don't agree, I take it? A. I don't agree

[30]

CC 02/1368

CC 02/1368 issued on 23 April 2003 requires further analysis to understand its relevance to Dr Martens's calculations. CC 02/1368 is a CC permitting the carrying out of bulk earthworks under consent K99/1124.
Dr Martens prepared an aerial photograph marked up with various coloured polygons depicting historic consents (CCs) under which bulk earthworks carried out at the site were approved (especially Ex 6). The proposition advanced by Leda was that areas showing active cut and fill should be excluded from condition 21A b. on the basis that those bulk earthworks were carried out under CC 02/1368.
There are, however, difficulties with this contention. First, Dr Martens did not assess whether or not these active areas of cut and fill were in fact attributable to the development approved under CC 02/1368. Rather he was asked to assume this fact (T468.27-469.24): Q. How was it that you attributed to works issued ‑ works approved in 2002 when you looked at an image in 2016, how did you determine that the works that you excluded, the cutting works that you could see, which were active in 2016, were carried out pursuant to a construction certificate that had been issued 14 years previously? A. Well, I haven't done that exercise. The exercise that I have done is to identify areas of cut or fill and then overlay those with two alternatives for the site and another alternative which includes construction certificates which have been approved for the site. Q. I see. When we go to your affidavit, at paragraph 14, you see that what you've said there is, "Further to the above, I have considered two alternative assumptions in respect of earthworks carried out under pre‑existing historical development consents." See the way you've expressed yourself in respect of earthworks carried out under the pre‑existing consents, Dr Martens? A. Yes, I see those words. Q. You see a plain representation in those words, don't you, that the cutting active earthworks that you've seen ‑ I've taken you through cut, but also fill ‑ the active earthworks that you've seen on the image dates, are earthworks that were carried out under the pre‑existing consents, that's what you've represented, haven't you? A. They are being carried out, yes. Q. Under the pre‑existing consents? A. Yes. Q. So, tell her Honour, please, so that we can be quite clear about this, are you or are you not representing that the areas that you have excluded between scenarios 1 and 2 in the series of aerial images are areas in respect of earthworks which you say were carried out on the previous consent? A. What I've done is to excise those areas which were the subject of a previous construction certificate. Q. So, is this the position, that contrary to what you've represented, what you've actually done is simply exclude areas which coincide with areas that had approved earthworks in the past? A. That's correct. Q. You're not telling her Honour that those earthworks were carried out under the pre‑existing approvals or under the project approval. You just don't know? A. No, I don't know from the aerial photographs. Q. When you say you don't know from the aerial photographs, you don't know from any of the documents you've been given? A. Well, the letter of my retainer asked me to consider earthworks to be either excluded or included on the basis of historical consents and they've all I've done is I have excised those areas.

[31]

CC 107 Series

Dr Martens did not, in reviewing the historic CCs and transposing the bulk earthworks approved under those consents onto his aerial images, review the approved plans under MODs 1 to 3 to the Project Approval or the CCs issued by Mr Shaw (CC 107, dated 21 June 2013, through to CC 107D, dated 26 February 2015).
This omission is significant because the applications for MODs 1 to 3, the assessment reports, and the plans approved by those modifications, together with the correlating CC 107 series, constitutes evidence demonstrating that the active areas of cut and fill depicted on the relevant aerial images in the period from 2014 to May 2017 are in fact areas of bulk earthworks approved under, and carried out for the purpose of, the Project Approval (see, for example, the Precinct 1 & 2 Borrow Area Earthworks Plan (Rev B) prepared by Yeats for CC 107). In other words, upon obtaining MOD1 under the Project Approval to use the borrow pits in Precincts 1 and 2 (on 29 May 2013), Leda applied for, and obtained, CC 107 (issued on 21 June 2013) to carry out those bulk earthworks, which it proceeded to do.
Dr Martens was taken to the modification documents in cross-examination and asked to comment upon the bulk earthworks carried out in the areas covered by MODs 1 to 3. Although he could not state that the cut and fill activities carried out under the modification approval were carried out pursuant to the Project Approval, and not some other historic consent, he nevertheless agreed that it was logical that they were (T489.35 and 490.24): Q. Could I draw your attention to mod 3, please. It's behind tab 8A of exhibit A, volume 1. A. Yes, I have that. Q. Have you been briefed with this document? Have you seen it before? A. I don't believe so. Q. You'll see from the first dot point of the description of the modification that the amendments were to include an amendment to condition 3 to include reference to expanded precinct 9 borrow area of earthworks and filling of the SSPP area? A. Yes, I see that. Q. Were you aware of the circumstances in which the application was made for mod 3 to fill the SSPP area as preload fill at the same time as preloading was being carried out on the missing link? A. The missing link? Q. Yes. A. What's the missing link? Q. We don't descend to knowing. Dr Martens, you can take it from me that it's an area ‑ a physical area to the south‑end of the site, which comprised effectively a road and a causeway to connect to the Cobaki Parkway to the area to the south of the site. You can take that from me, but I take it that you weren't aware that there was considered to be a desirability to undertake preload filling in the SSPP at the same time as preload was being carried out on that road and causeway for geotechnical reasons. A. So in relation to preload, I remember being advised during my site inspection by some of the Leda staff that there were areas that were subject to preloading; but at that time, and even now, I'm not certain of the exact extent of those preload areas. Q. But the fact that there was an application made to extend the precinct 9 borrow areas to provide fill for the SSPP, that rather suggests that the application to use precinct 9 for the purposes of the central open space had been acted on. That's why they needed an extension of it. Don't you‑‑ A. Well, I refer to my previous answer. That sounds like a logical progress of events.

[32]

DA 10/0800

DA 10/0800 is another consent warranting particular scrutiny. DA 10/0800 is a Pt 4 consent issued by the Council in consequence of the Concept Approval. It authorises earthworks in Precinct 1 and 2. The whole of those precincts were approved under that consent for cut and fill, together with the final subdivision of those precincts into residential allotments. Leda submitted that the consent was, as a matter of construction, independent of the Concept and Project Approvals, and therefore, not subject to the hectare limitation contained in condition 21A b. Accordingly, works within Precincts 1 and 2 in excess of the utilisation areas within those precincts as borrow pits were authorised by a development consent (DA 10/0800) which was unconstrained by condition 21A b.
Leda relied upon condition 50 of DA 10/0800 - which it described as the "embodiment" (T588.33) of condition C18 of the Concept Plan - to argue that DA 10/0800 operated outside the parameters of, and therefore, was not bound by, the conditions of the Project Approval. Accordingly, there was a coincidence of approvals, viz, DA 10/0800 and the Project Approval, both of which authorised the extraction of cut and fill from Precincts 1 and 2, and provided that the bulk earthworks undertaken in those precincts were consistent with DA 10/0800, the works were undertaken pursuant with that consent and were not a breach of the Project Approval.
But even if DA 10/0800 is wholly independent of the Concept and Project Approval, Leda was nevertheless obligated to comply with the conditions of the Project Approval for the reasons already explained above, irrespective of its existence. Furthermore, if, as the Court has found, the works undertaken in Precincts 1 and 2 were carried out in furtherance of the Project Approval, the existence of DA 10/0800 will not assist Leda. Merely because bulk earthworks were carried out consistent with the terms of DA 10/0800 does not mean that the works were carried out under that consent. While at all times the onus remains on the Secretary to prove to the criminal standard that the earthworks in Precincts 1 and 2 (and any other precinct (or area at the site)) were carried out in furtherance of the Project Approval, and not some other consent, once demonstrated, overlapping approvals will not, of themselves, exonerate Leda.
To the extent that the evidence revealed a coincidental benefit under DA 10/0800 of having the level brought down to the final design surface and landform, this did not alter the fact that the bulk earthworks in the relevant precincts were carried out under the Project Approval. This conclusion is in conformity with the plans prepared by Yeats for MOD1 for the Precinct 1 and 2 Borrow Areas (Rev D).

[33]

CC 10/0717

Finally, CC 10/0717 was a CC issued by the Council on 15 December 2011, upon which Leda relied in oral submissions. The CC gave Leda approval to extract up to 4,900 m³ of material from an allocated area within Precinct 9 to complete filling works for Cobaki Parkway South. Leda used this consent as another example of a coincidence of approvals over the bulk earthworks activities taking place on the site which the Secretary had failed to address.
At the risk of repetition, the co-existence of another consent to undertake bulk earthworks on the site did not obviate the need for Leda to comply with the conditions of the Project Approval. Far from ignoring this consent, the DPE was aware of its existence and during the course of investigating possible breach of the Project Approval, considered whether or not the works were authorised by this CC and another DA (see the letter to Mr Bob Ell, a director of Leda, from the DPE dated 22 September 2016). It is not clear whether (at least according to email correspondence between the Department and Mr McLachlan dated 11 October 2016) Leda breached this approval, in any event, by extracting material from Precinct 9 outside the allocated area.
It is therefore not correct to submit, as Leda did, that the Secretary failed to grapple with this, and other, existing consents with respect to bulk earthwork activities across the site.

[34]

The Bulk Earthworks Carried Out on the Site Were Carried Out Under the Project Approval

The proposition put by the Secretary that the relevant bulk earthworks carried out on the site from 2013 to 2017 were carried out for the purpose of the Project Approval (and not some other existing or historic consent) was consistent with Mr Shaw's written evidence, especially with the works that he observed in Precincts 1, 2, 9 and 11, the COS and SSPP, during his site inspections and the work undertaken by him in issuing CC 107.
It is also consistent with the absence of any other consent with an extant CC relevantly applying permitting the carrying out of the same bulk earthworks in the same areas. In addition, documentary evidence exists demonstrating that Leda intended to, and actually did, implement the Project Approval on the site from the beginning of 2013 to the end of the second charge period.
In February 2013 Leda applied for MOD1 for the specific purpose of borrowing fill from Precincts 1 and 2 for use in the COS. The 2013 SMEC EAR which accompanied the application stated that the borrowing of fill from Precincts 1 and 2 for use in the COS had commenced before the modification was sought. Similarly, Leda applied for MOD2 in April 2014 in circumstances where Leda had already commenced using fill from Precinct 9 in the COS.
Leda's express intention of using fill from these precincts for the purpose of implementing modifications to the Project Approval is consistent with the exposed disturbed areas in Precincts 1, 2, 9 and 11 having been occasioned as a consequence of implementing the Project Approval.
Another relevant document is the Phasing Plan which was provided to the DPE in support of the application to increase the permitted disturbed area to 5 ha on 12 June 2013. The Phasing Plan showed fill being taken from four cut areas in Precincts 1 and 2 to implement Stages 4 and 5, in the northernmost part the COS. Leda admitted in correspondence with the DPE in February 2016 that there was "excavation in borrow areas within Precincts 1 & 2 with this fill being transported in the Central Open Space".
As stated earlier, the existence of historic and operative consents, and the bulk earthworks performed under those consents, was brought to the attention of Mr McLachlan by Leda's employees and contractors during interviews that he carried out as part of his investigation (T161.18-161.28 and 161.38-161.44) (see the records of interview of Mr Hughes, Mr Shaw - especially at Q257 and 270, Mr Van Rij and Mr Yeats). For example, Mr Scotcher said (at Q109-113, 129, 130 and 266-270): Q --- that's present in the room. I'm going to ask you some specific questions more around condition 21A. A Mm mm. Q What approvals were Leda working under in relation to bulk earthworks in precincts 1, 2, 9 and 11? A So, there's the project approval which flowed on from the concept approval and then there were CCs issued by Mike Shaw under those project approvals. Q Are there any other approvals that Leda has worked under for precincts 1, 2, 9 and 11? A Yes. Q What are those approvals? A Off the top of my head, I couldn't rattle off the numbers, but there are a number of live CCs across the estate, like historical ones, that we're allowed to do earthworks under. So, for example, precinct 10, we're doing some filling down there. The borrow pit was up on precinct 9 there on the - is it the western edge of the environmental area there. So, (indistinct) material out of there and placing it onto precinct 10 under one of the CCs - again, a historical one. I can't rattle off the number off the top of my head. Q No worries. Are there any other areas where there's historical CCs in relation to 1, 2, 9 and 11? A They're across the estate. They are literally everywhere. We actually got a plan that shows where all our CCs are and they're all outlined and coloured and everything, that our surveyor did for us and it pretty much covers almost the whole estate. There are very small gaps where there aren't any CCs, but - yeah, as I said, most of those historical CCs cover the entire estate. … Q That's fine. In relation to Cobaki Estate, how much area do you believe was exposed at any one period of time? A Well, again, we've got multiple CCs across the whole site and those CCs are valid and ongoing, so - I know that we're limited to 5 hectares under the project approval, but then those CCs outside of that project approval allows to - to carry out works lawfully. Q So, the question was, how much area do you believe was exposed in any one period of time at Cobaki Estate? A I don't know. It was probably - I think it would be more than the 5 hectares of the project approval, but that, as I said, doesn't account for the CCs that we're allowed to operate under. … Q Have you ever had any discussions about the condition [condition 21A b.] and compliance with it? A Yes. Q Who were those discussions with? A Internally, with Brandon and Reg. Q And what were the - specifically, what were the discussions about? A That we are limited to 5 hectares within our project approval, but our CCs across the site allow us to open up those other areas, so therefore if you look at an aerial map like this, the area of the site will have probably greater than the 5 hectares exposed, but it doesn't mean those areas aren't allowed to be open under our CCs. MS O'REILLY Q Whose interpretation of that condition was that? A That was just a discussion we had. We hadn't sought any legal advice, that was our discussion we had internally. Q. Between the three of you, Brandon, Reg and yourself? A Yeah, I believe so.

[35]

Leda Exceeded the 5.59 ha Limit and is Guilty as Charged in the First and Second Summons

It is only if the Court were prepared to, first, disregard areas of fill from "the site" as defined above, and second, if the Court were prepared to excise from the areas of cut those areas which Leda attributes to pre-existing consents, that Leda can be exonerated. A finding in Leda's favour of either, proposition will be insufficient having regard to the proper construction of condition 21A b. and evidence before the Court.
Even if the Court were to accept Dr Martens's methodology of excluding areas the subject of prior CCs (which it does not for the reasons given earlier), there was nevertheless a breach of condition 21A b. on his own calculations if, as must occur, both cut and fill areas are to be included. Thus excluding the bulk earthworks the subject of pre-existing consents, the combined cut and fill area as at the date of each aerial photo analysed by Dr Martens was: 1. as at 21 April 2014, 29.2 ha; 2. as at 25 June 2014, 31.8 ha; 3. as at 6 October 2014, 33 ha; 4. as at 9 April 2015, 30.4 ha; 5. as at 18 May 2016, 24.2 ha; and 6. as at either 24 February or 7 March 2017 (although Dr Martens and Mr Watts analysed the same image, its precise date was uncertain), 21.9 ha.
On any view, therefore, the 5.59 ha limit prescribed by condition 21A b. was exceeded during the charge periods resulting breach.
However, for the reasons given earlier in this judgment, the Court does not accept that it was correct to exclude the areas covered by the prior consents issued in respect of bulk earthworks carried out in Precincts 1, 2, 9 and 11, in the SSPP or COS. This is because, notwithstanding a coincidence of approvals, the works were not carried out in furtherance of the historic consents, but pursuant to the Project Approval.
According to the evidence contained in the second Watts affidavit, the total area of the COS, SSPP and Precincts 1,2,9 and 11 exposed and disturbed since 21 June 2013 (that is, from when bulk earthworks were approved under the Project Approval and after Mr Shaw had issued CC 107) was: 1. as at 21 April 2014, 63.91 ha; 2. as at 25 June 2014, 65.65 ha; 3. as at 6 October 2014, 85 ha; 4. as at 9 April 2015, 71.42 ha; 5. as at 18 May 2016, 68.27 ha; and 6. as at either 24 February or 7 March 2017, 62.59 ha.
Even erring on the side of caution by accepting Dr Martens's calculations for the total active cut and fill works across the site, the combined exposed disturbed area for the purpose of condition 21a b. was: 1. as at 21 April 2014, 47.6 ha; 2. as at 25 June 2014, 52.6 ha; 3. as at 6 October 2014, 55.4 ha; 4. as at 9 April 2015, 54 ha; 5. as at 18 May 2016, 46.9 ha; and 6. as at either 24 February or 7 March 2017, 40.3 ha.

[36]

Condition 41 of the Project Approval

In the third summons, the Secretary alleges that Leda has failed to comply with condition 41 of the Project Approval insofar as bulk earthworks in the nature of excavation and removal of an earthen mound and associated works were undertaken outside the areas approved by that condition.
The evidence of Mr McLachlan was that there was a mound of earth approximately two metres high covered with vegetation located to the east of Cobaki Parkway, near the northern intersection of Cobaki Parkway and Sandy Lane. The earthen mound was not located in the COS as defined in the Project Approval, nor was it located in any of Precincts 1, 2, 9 and 11, being areas identified as those in which the winning of fill was permitted under condition 41.
Rather, the earthen mound was located in an area identified by him as Wallum Froglet forage habitat in the Cobaki Estate Environmental Assessment Report Southern Special Purpose Precinct (SSPP) Bulk Earthworks dated July 2014.
The Secretary alleges that between 1 September 2015 and 2 November 2015, earth from this mound was moved in bulk earthworks operations to the SSPP or COS in contravention of condition 41 of the Project Approval.

[37]

The Meaning of "Bulk Earthworks" for the Purpose of Condition 41

Leda argued that condition 41 did not apply to the movement of topsoil for finishing purposes because this did not fall within the concept of "bulk earthworks" contained in that condition. It relied on Dr Martens's evidence that the existence of the "earthen mound" was not consistent with "bulk earthworks" because it could not be equated with "larger scale 'bulk' earth forming activities required to undertake the land development".
In Dr Martens's unchallenged opinion the earthen mound was a "pre-existing temporary stockpile". Its removal constituted no more than a "return to pre-stockpile natural ground levels, as part of outstanding works under construction certificate CC10/0717" (dealing with the construction of Cobaki Road). Accordingly, the works "did not form part of the final design landform" and the removal of the mound formed part of the works carried out under that CC.
Leda submitted that Dr Martens's evidence was consistent with that of several witnesses. First, Mr Shaw's characterisation of the earthen mound was not as fill but as a "stockpile" of "topsoil being used for environmental purposes, i.e. stabilising the work areas". As he stated in his record of interview dated 5 September 2016 (Q146-153): Q Are you aware of any approval that allows that stockpile? You've drawn an approximate location. A Yeah. Q That it would allow that stockpile to be removed? A I - no, but I didn't see that as a major issue. I did know that, you know, they were doing that when we came outside. That was a stockpile where topsoil was being reused to stabilise other parts of the site. Certainly it's not within the boundaries of you know where they're permitted to do bulk earthworks, but to me that was - it was a stockpile that was there from previous works. So it's topsoil that's been located on private property in an area outside of the central open space. And my understanding was that that topsoil was being reused for the purpose of stabilisation of areas within the central open space. It was quite obvious that it was a stockpile. It wasn't virgin material. It was all topsoil sitting in a big mound. I'm aware that there's a number of topsoil stockpiles throughout the site of a similar nature. Some other areas that they reused topsoil as well. Q Can you mark those areas in pink on MS2 please? A Ah I think there was an area over here that was a topsoil stockpile. Yeah, probably the only two that are jumping out at me right now. Q Can you mark in pink as well with an arrow where the material from those two stockpiles went? A I would not know. I would not know, no. All I was - I was made aware by Leda that the material was being reused to stabilise areas within the central open space, so the approved areas of central open space topsoil. So it was excess topsoil that was stockpiled off site on private land that was being reused to stabilise the exposed surfaces in the central open space. Q I'm going to introduce document entitled "Cobaki Estate Central Open Space Project Approval 08_0200 consolidated approval for information". A Mm mm. Q Title it MS8 and sign and date the top. Can you please do the same? Can you please - I'm going to direct you to page 25. I'll label the top MS9 and sign and date. Would you please do the same? A Yep. Q Can you read condition 41c. please? A 41C, "Notwithstanding A and B above, fill material required for the central open space area sourced from elsewhere on/off the site requires separate development approval unless otherwise approved by the Director General". Q What's your understanding of that condition? A If entered in fill material was required then - and it was outside of the central open space or the approved mod areas that it would need a separate approval. This is different. This is topsoil, it's not fill. So it's topsoil being used for environmental purposes, i.e. stabilising the work areas. So I wouldn't classify that as fill.

[38]

Leda Has Breached Condition 41 of the Project Approval

On 2 November 2015 Mr McLachlan observed that the earthen mound had been removed leaving behind two exposed disturbed areas to the east of Cobaki Parkway.
On 23 November 2015 Mr McLachlan caused the boundaries of this disturbed area to be mapped using GPS coordinates. The map shows two areas of disturbance, one approximately 1.2 ha in size and the other about 0.5 ha in size, which, irrespective of any erroneous proposition to the contrary by Mr McLachlan in his oral evidence, are areas that are outside the COS approved bulk earthworks under the Project Approval.
A reduction in the amount of dark green vegetation can be seen in the same location in the aerial photographs annexed to the first Watts affidavit. That the disturbed area is not bare earth in a later photograph taken by Mr Watts can be explained by the fact that the latter photograph was taken five months after the mound was excavated, providing sufficient time for vegetation regrowth. Even allowing for some imprecision in mapping, it is beyond reasonable doubt that these works were outside the approved work areas under condition 41. The closest work area authorised under the Project Approval was the "minor open drain 5/fauna corridor" within the COS running in an east-west direction and terminating on the western side of Cobaki Parkway. The removal of the earthen mound occurred to the north of this entirely on the eastern side of Cobaki Parkway.
In his record of interview Mr Yeats speculated that the earth had been previously stockpiled in order to be used later but that he was unaware if there were any approvals in operation permitting the removal of the mound (Q238): Q So in your opinion, based on those two maps that I've presented, are you aware of any approvals that would allow you to operate within that area that identified on BY10? A I'm just not certain where it sits in relation to plan BY11. I could only imagine that that material was stockpiled under previous earthworks activities, under a construction certificate with the intent that it's a temporary stockpile to be reused later on. Other than that, I cannot comment and I'm uncertain what you're aiming at here.
Later, however, he said that he had no direct knowledge of how or where the material that was removed from the mound was used (Q263): A I would imagine that material, being topsoil, was used potentially for either the temporary preload of the missing link, an SSPP or and for stabilisation of the exposed areas within the central open space. That's what I would think, but I cannot confirm any of that.

[39]

Conclusion and Orders

For the reasons given above, the Court finds Leda guilty as charged in respect of the first, second and third summonses.
The orders of the Court are therefore that: 1. in matter no 186631 of 2017 the defendant is guilty as charged; 2. in matter no 186632 of 2017 the defendant is guilty as charged; 3. in matter no 186634 of 2017 the defendant is guilty as charged; 4. all three proceedings are stood over to the List Judge on 3 May 2019 for further directions with respect to sentencing; and 5. the exhibits are to be returned.

[40]

Amendments 12 June 2019 - The following paragraphs have been amended pursuant to Rule 36.17 of the Uniform Civil Procedure Rules 2005 ("the Slip Rule") on 12 June 2019:

[41]

(a) [238], the words "prefer the evidence of Mr Martens" are replaced with "prefer the evidence of Mr Watts"; and

[42]

(b) [284], the words "which it does" are replaced with "which it does not". 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: 12 June 2019

Schedule 2 of the Project Approval provided that: Schedule 2 Conditions of Approval Administration Conditions 1. Project Description Project approval is granted only to: PART ONE - SUBDIVISION • Subdivision of the entire Cobaki Estate site into seven (7) lots (including one residue lot for future urban development - Lot 807); PART 2 - BULK EARTHWORKS AND CIVIL WORKS • Staged bulk earthworks to create the central open space, riparian corridor, structured open space, and future storm water drainage area; • Road forming works and culverts crossing the central open space (including Lot 802); • Road forming works across saltmarsh areas, including culverts and temporary trunk sewer and water services (Lot 804); PART THREE - ENVIRONMENTAL ENHANCEMENT WORKS • Revegetation and rehabilitation of environmental protection areas for coastal saltmarsh (Lots 805 and 806); and • Establishment of freshwater wetland and fauna corridors (Lots 801 and 803). 2. Concept Plan - Cobaki Estate The project shall be generally undertaken within the terms of the concept approval for the Cobaki Estate (Project 06_0316) approved by the Minister on 2 December 2010. 1. Project in Accordance with Plans The project shall be undertaken generally in accordance with the following plans, except where varied by conditions of approval: … Earthworks Drawings prepared by Yeats Consulting Engineers Drawing No. Revision Name of Plan Date YC0229-1P1-EC01 B Cut and Fill Plan Sheet 1 of 2 17 September 2010 YC0229-1P1-EC02 B Cut and Fill Plan Sheet 2 of 2 17 September 2010 YC0229-1P1-ES01 B Bulk Earthworks Sections Sheet 1 of 2 17 September 2010 YC0229-1P1-ES02 B Bulk Earthworks Sections Sheet 2 of 2 17 September 2010 YC0229-1P1-ES03 B Bulk Earthworks Typical Sections 17 September 2010 YC0229-1P1-EW01 B Bulk Earthworks Layout Plan Sheet 1 of 8 17 September 2010 YC0229-1P1-EW02 B Bulk Earthworks Layout Plan Sheet 2 of 8 17 September 2010 YC0229-1P1-EW03 B Bulk Earthworks Layout Plan Sheet 3 of 8 17 September 2010 YC0229-1P1-EW04 B Bulk Earthworks Layout Plan Sheet 4 of 8 17 September 2010 YC0229-1P1-EW05 B Bulk Earthworks Layout Plan Sheet 5 of 8 17 September 2010 YC0229-1P1-EW06 B Bulk Earthworks Layout Plan Sheet 6 of 8 17 September 2010 YC0229-1P1-EW07 B Bulk Earthworks Layout Plan Sheet 7 of 8 17 September 2010 YC0229-1P1-EW08 B Bulk Earthworks Layout Plan Sheet 8 of 8 17 September 2010 YC0229-1P1-SK02 A Phase 1 - Landforming/Earthworks Layout Plan 22 December 2010

Finally, Leda submitted that the Secretary had failed to deal with the operation of pre-existing, and other consents by including bulk earthworks conducted under those consents in the works carried out under the Project Approval for the purposes of condition 21A b. The historical consents were coterminous with the areas said by the Secretary to comprise the extent of works the subject of the first and second summons. This evidenced by: 1. the fact that the Concept Approval acknowledged the existence, preservation, and continued operation and availability, of these consents; 2. the evidence of witnesses such as Mr Shaw and Dr Daniel Martens (discussed in detail below); 3. Mr Stewart McLachlan (see further below) conceded that his investigation did not address bulk earthworks conducted under consents other than the Project Approval (T112-113); 4. as at 21 June 2013 (the date CC 107 was issued) bulk earthworks on the site were being carried out beyond the works reflected in the Concept Approval; 5. the only rational basis for the bulk earthworks being carried out in Precincts 1, 2, 9 and 11 was the historic consents; 6. aerial photographs of earthworks as at a particular date did not demonstrate that the works pursuant to the historic consents were exhausted or complete; 7. provided that it has not lapsed, once commenced, a consent is available to authorise works into the future. The presumption is that the works may continue. Accordingly, any later constraints contained in the Project Approval were irrelevant; 8. Mr Leo Watts's (a specialist aerial surveyor) calculation of disturbed areas as a consequence of bulk earthworks carried out during the charge periods did not exclude disturbance arising from earthworks carried out under other consents; and 9. to the extent that they related to the relevant precincts (that is, excluding the COS and the SSPP), plans prepared by Mr Watts - which were consistent with the plans prepared by Mr McLachlan - correlated with the areas the subject of the historic consents. This was not affected by the later evidence from Mr Watts which excluded non-project related areas (as a subset of his earlier work).

These submissions are explored in considerably greater detail below, however, Leda's contentions ignore a fundamental tenant of planning law. That is, if a person obtains a planning approval that approval does not have to be acted upon, and if it is not acted upon, conditions attached to that approval are not operative. But if a holder of a planning approval acts upon the consent by carrying out the development the subject of the approval, the holder must comply with the approval and any conditions to which it is subject. Thus: 1. there is no statutory or other legal constrain upon the number of development applications that a person can make in respect of the same land. There can be more than one valid and operating consent in existence at any one time and it is possible to undertake works pursuant to more than one consent at a time (Waverley Council v CM Hairis Architects [2002] NSWLEC 180; (2002) 123 LGERA 100 at [30]); 2. where multiple development consents apply to the same parcel of land, all of the consents may operate unless the implementation of one consent is no longer a practical possibility due to development already having been undertaken pursuant to another consent (Liverpool City Council v Home Units Australia Pty Ltd [1973] 2 NSWLR 61 at 70; Drummoyne Municipal Council v Page [1973] 2 NSWLR 566 at 574; and Drummoyne Municipal Council v Lebnan [1974] HCA 34; (1974) 131 CLR 350 at [7]); 3. unless a statue otherwise provides, the granting of a further consent does not operate to revoke prior consents which are in effect (Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 433). Put another way, a later development consent does not, of itself, take precedence over an earlier approval; 4. however, the grant of a development consent "does not purport to have the effect of overcoming any other legal obstacles to the development to which consent is given", including any legislative hurdles (Grace Bros Pty Ltd v Willoughby Municipal Council (1980) 44 LGRA 400 at 412 and IDA Safe Constructions Pty Ltd v Woollahra Municipal Council (1981) 48 LGRA 62 at 69); 5. a development consent that has been commenced must not be undertaken in breach of any condition of that consent. To do so is a breach of the consent and a breach of the EPAA giving rise to civil and criminal consequences (Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2002] NSWCA 301; (2002) 55 NSWLR 446 at [19] and Rao v Canterbury City Council [2000] NSWCCA 471; (2000) 112 LGERA 360). In Rao Mason P said (at [20]-[21]): 20. At trial a slightly different point was taken to the one now advanced. It was accepted that there was a development consent and that it was in force under the Act. (A similar concession is made on appeal.) The submission at trial was that the development which was the subject of that consent was still to be carried out. Accordingly, where the summons charged that the consent had been implemented contrary to the specified conditions then it was raising an offence not known to the law because, the consent not having been completed, it could not be said to be implemented contrary to the conditions of the consent. The submission was rejected. Her Honour pointed out that s76(2) speaks of development that "is carried out". Although the work consented to had not been completely finalised, it was in train and the charge alleged departure from conditions regulating the development work itself. 21. The submission is repeated on appeal. In my view her Honour was perfectly correct. Some conditions are capable of breach in the course of implementation of the consent. Stipulations that specific trees are to be retained or protected by "a suitable barrier erected prior to and maintained during building operations" are clearly such as of their nature are capable of infraction during development work. Likewise with a prohibition against cutting down existing trees. In Moss v Kiama Municipal Council [2003] NSWLEC 165; (2003) 127 LGERA 83, Bignold J, following Rao and Hillpalm, opined that (at [44]): 44. Moreover, the decisions in Hillpalm and Rao mean that such non-compliance with the condition of the development consent has far wider implications in terms of the EP&A Act, than the mere "conflict with the condition of the earlier development consent" as referred to in Pancho Properties. These implications clearly include the inevitable conclusion that the non-compliance with a condition of an earlier development consent, where that condition has an ongoing effect (ie including beyond the life of the existing development consent) constitutes a breach of the EP&A Act - both civil and criminal and is enforceable as such. 1. the enforcement of an operative consent does not necessarily need to wait for the subjective decision of a consent holder to activate the consent. Therefore, a development need not be complete in order to ground an obligation to comply with its conditions because some conditions require compliance during the course of carrying out the development (Viertel v Andrews [2008] NSWLEC 195 at [14]); and 2. it follows, however, that once commenced there is no obligation to fully implement the consent provided that in undertaking part of the development authorised by the consent there has been no breach of any relevant condition of the consent.

The circumstances in which the rule in Beckwith v The Queen is applicable were summarised by Robson J in Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales [2018] NSWLEC 10, where his Honour said (at [49]-[53]): 49. In Beckwith v The Queen (1976) 135 CLR 569; [1976] HCA 55 (Beckwith) at 576, Gibbs J summarised the position with respect to the interpretation of penal statutes as follows: [T]he rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences. The rule is perhaps one of last resort (citations omitted). 50. In Waugh v Kippen (1986) 160 CLR 156; [1986] HCA 12 (Waugh v Kippen), Gibbs CJ, Mason, Wilson and Dawson JJ cited the comment of Gibbs J in Beckwith with approval. The legislation in that case concerned workplace safety provisions which, if abrogated, could have penal consequences. The question that confronted the Court therefore was what weight to give the rule of strict construction in circumstances where it comes into conflict with the aim to which the legislation is directed. At 164-5, Gibbs CJ, Mason, Wilson and Dawson JJ observed that the statute: …should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have… [I]n such a context the strict construction rule is indeed one of last resort. Furthermore, the process of construction must yield for all purposes a definitive statement of the incidence of an obligation imposed on the employer. The legislature cannot speak with a forked tongue. 51. In Newcastle City Council v GIO General Ltd (1997) 191 CLR 85; [1997] HCA 53 (Newcastle v GIO), the High Court considered a provision which made it an offence for an insurer not to inform clients expressly and in writing that certain cover was not offered by a particular policy. Counsel for the respondent had stressed that a narrow reading should be adopted in line with the rule of strict construction. At 102-3, Toohey, Gaudron and Gummow JJ said that the provision "casts an obligation upon the insurer, in aid of remedial measures passed for the protection of those dealing with insurers. In such a context, the rule of strict construction of penal provisions is one of last resort" (at 102-3). Similarly, McHugh J at 109 held that "if any conflict arises from the operation of the two rules of construction, the strict construction rule cannot prevent the words of the section from being given their fair meaning," citing Waugh v Kippen. 52. In R v Lavender (2005) 222 CLR 67; [2005] HCA 37 at 96-7, Kirby J, writing separately but concurring with the majority on the outcome, summarised the position with respect to the rule of strict construction thus: In recent times the rule of strict interpretation has "lost much of its importance", and is now generally regarded as a rule of "last resort". It comes into operation when the normal principles of interpretation have "run out", if "all other indicia [have] failed" to provide guidance. It applies "if [there is] genuine doubt as to the intention of the legislature and if there are no considerations indicating the desirability of a wide interpretation of the statute" (citations omitted). 53. Most recently, the rule was considered by the NSW Court of Criminal Appeal in Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251 where, at [55], Leeming JA, with whom Johnson and Adamson JJ agreed, noted that: Although it was at the forefront of his written submissions, the principle invoked by Mr Grajewski [that is, the rule of strict construction] does not exclude the ordinary rules of construction. Indeed, Gibbs J's qualified observation in Beckwith v R (1976) 135 CLR 569 at 576 that the "rule is perhaps one of last resort" has much more recently been reiterated in unequivocal terms: by Nettle and Gordon JJ in Re Day (No 2) [2017] HCA 14 at [276] and in the joint judgment in Aubrey v R [2017] HCA 18 at [39]. I do not for a moment understand the High Court, by referring to "rules" and "last resort", to be implying that the task of ascertaining the legal meaning of a statute is mechanistic, to be determined by the application of rules, amongst which the penal character of the statute is the last to be invoked. The process is considerably more nuanced, reflecting as it does the constitutional relationship between the various arms of government… [A] statute's penal character is to be regarded as a very minor consideration to be taken into account in ascertaining its legal meaning in light of its text, context and purpose (some citations omitted).

The Earthworks Standard is, however, principally concerned with record keeping and certification processes, and the weight to be accorded to it is therefore limited. More importantly, I agree with the submissions of the Secretary that Dr Martens's construction of the expression "exposed disturbed area" to mean only those areas where "the natural landform has been disturbed by being exposed or 'revealed'" is flawed. He reached his interpretation by treating "exposed" as a description of the surface of the earth that has been "affected by some action", rather than as a description of its present state of being exposed to the elements, which is the more ordinary meaning of the word. A single example of his testimony demonstrates the circular, artificial, and illogical nature of Dr Martens's reasoning (T404.24-405.15): Q. What's the answer to my question? A. That was the answer. Q. How do you tell her Honour, if you didn't turn your attention to the Australian Standard at the time you expressed your opinion, that your opinion is based on it? Do you have a knowledge of it‑‑ A. My opinion ‑ my opinion at the time was based on my knowledge and experience at the time of preparing the affidavit. My knowledge at that time was of the Australian Standard. Q. Dr Martens, how would you describe to her Honour what disturbed means? What do you understand the word "disturbed" to mean? A. Disturbed? To be ‑ to be affected by some action. Q. In the context of soils, what do you understand the word "exposed" to mean? A. Exposed soils are those that have been excavated, generally speaking. Q. What do you understand by the word "exposed"? A. To reveal. Q. So, if there is a mound of soil that has no vegetation cover on it whatsoever and it's unconsolidated, are you telling her Honour that's not exposed? A. Well, I think you need to add an extra word or two to take that to include "exposed." For example, to be exposed to the atmosphere, to be exposed to wildlife. To be exposed, in my experience, means to excavate. Q. Let's just deal with the concept of being exposed. You agree, don't you, that a stock pile of unconsolidated dirt is exposed to wind? A. Yes. Q. You agree that it's exposed to rain? A. Yes. Q. It's exposed, isn't it? A. No. You're adding the things that I suggested you would need to add to include the word "exposed." Exposed to wind, exposed to rain, other than just using the word "exposed." If the soil is exposed, in my experience, a contractor or an engineer would say that means that I have exposed material, I have revealed it. If I say to a contractor, "Expose the soil in this location," the contractor will take that to mean, to go and get an excavator an whatever the machinery is, and a dig it up.

Mr McLachlan carried out several further inspections of the site in the period from January 2016 to September 2016, where he observed the following: 1. on 14 January 2016, he observed that the exposed areas in Precinct 1 had noticeably increased in size since 23 November 2015. Some grass and/or weed growth was visible but appeared to cover less than 5% of the exposed area. He saw that four or five large earthmoving trucks, two excavators, a padfoot roller, a grader and a bulldozer, were undertaking works across Precinct 1 and 2. Groundcover in the COS area had increased since 23 November 2015, and appeared to cover 80 - 90% of the exposed area that he had observed on 2, 21 and 22 July 2015. There was also an exposed area on the south eastern side of Precinct 9 that had not been exposed during any of his previous inspections; 2. on 23 February 2016, he saw material being deposited by large earthmoving trucks in Precinct 9. He could not see any signs of revegetation or rehabilitation in that Precinct. In Precincts 1 and 2, areas that he had observed on 14 January 2016 appeared to have changed their topography. He observed at least 100 white timber pegs within these two precincts. They were marked with a black line at different heights and the letters "FL" (finish level) followed by a number. Surveyors on the site indicated that they were not filling the area, merely re-contouring it. They also indicated that they had observed fill material entering Precinct 1 or 2 from site quarries to get compacted and graded; 3. on 30 March 2016 his observation of the exposed area in Precinct 9 was that it was larger than what he had seen on his previous inspection on 23 February 2016. Material that he had earlier seen being deposited (from the SSPP) to the east of Precinct 9 on 23 February 2016 was still there. He observed fresh tracks and scrapings of earthmoving vehicles. There was some natural re-growth in the south eastern area of Precinct 9 which was sparse and comprised no more than 20% of that area. An excavator was removing material that appeared to be topsoil from the SSPP and was loading it into trucks, and the exposed areas in Precinct 1 and Precinct 2 had changed. Material that appeared to be topsoil had been placed over the top of Precinct 1. Additional fill had been placed in Precinct 2; 4. by 1 April 2016, additional cutting had been carried out in part of Precinct 9, which had lowered its level by 5 m across an area of 50 - 100 m wide and 150 - 200 m long. Mr Yeats informed Mr McLachlan that this material was being used as structural fill for works on the "Missing Link" within the SSPP area. Mr McLachlan also noted that earthmoving equipment was active in the SSPP; and 5. by 28 and 29 April 2016, Precinct 9 had fresh tracks and markings from earthmoving equipment. The south-eastern area of this precinct remained disturbed with sparse re-growth (no more than 20%). Excavators were removing material from an area to the west of Precinct 9 and depositing the material elsewhere within that precinct. The perimeters of the disturbed areas were identified by the use of GPS waypoints on 27 and 28 April 2016, which were marked upon on an aerial image.

According to Leda, Mr McLachlan's evidence ought to be accorded very little weight because of his reliance on the "Blue Book" to assess an area of land as stabilised as having 70% vegetation cover. Reliance on the "Blue Book" was revealed for the first time in cross-examination (T133.35-134.08 and 134.37-135.27): Q. Now, may we take it that by the use of that description, that is, "I do not consider it stabilised," you have included that area for the purposes of determining an area to which the 5 hectare limit in condition 21Ab is concerned? A. No. Q. Why did you express it in that way? Why are you telling her Honour about cover and whether the area in your opinion is stabilised or not? A. Because I consider an area exposed until it has 70% vegetation cover. Q. Where do you get 70% from? A. From the blue book. Q. What's the blue book? A. The blue book is the New South Wales standard for erosion and sediment control, re vegetation, earth works and rehabilitation. Q. Is that a document referenced in the project approval? … Q. Is that a document referenced in condition 21A of the project approval? A. No. … Q. Mr McLachlan, we've got the benefit of your evidence and exhibit A which is all the annexures to your affidavit and we had the benefit of the second affidavit that you prepared which has not been read, but we are served with that. It is correct, is it not, that nowhere in either of those affidavits is there a reference to what you've referenced as the blue book, either by that description or in its full label; correct? A. Correct. Q. And nowhere in your affidavit where you talk about percentages is there any reference to your reported percentages as being relative to the percentage of 70% that you told her Honour about three questions ago? A. No. Q. Is there any reason why you didn't see fit to include in your affidavit reference to either of those concepts? A. Well, I would say that I included in my affidavit my relevant experience from earthwork sites and that's how I gained those understandings, so, by reference, that's what I included. Q. But you referred to looking at an area, saying it's got a percentage of cover A. Yes. Q. Unless you told her Honour what the datum is that you're assessing percentage of cover to, do you agree that what is in your affidavit is only part of your position in that respect? A. No, I don't think so. Q. We don't see anywhere the reference to 70%, do we, Mr McLachlan? A. No. Q. And if I didn't ask you about it, we still wouldn't have seen anything about 70%? A. Okay, yes. Q. Not okay. The answer has to be yes to that question, doesn't it? A. That was I retract the "okay" and said, "yes," in the latter response. Q. Is there any reason why you didn't tell her Honour about that in your affidavit? A. No.

Mr Schultz also accompanied Mr McLachlan on his site visits to the Cobaki Estate (on 21 and 22 July 2015, 30 March and 1 April 2016). Mr Schultz described what he saw in his affidavit and annexed photographs of his observations, including exposed areas in the COS and in Precincts 1, 2, 9 and 11. On 22 July 2015 he observed a cleared area of approximately 100 m x 50 m, dug approximately 400 mm deep, together with an associated stockpile of sand and soil in the COS. On 30 March 2016, Mr Schultz observed a new topsoil stockpile area east of the SSPP which was not present on his earlier inspection in July 2015. Additional earthworks had been carried out in Precinct 2. A conversation took place between Mr McLachlan and Mr Yeats: Mr Mclachlan said: "what has occurred in Precinct 2"? Mr Yeats said: "it appears the contractor has pushed out fill. There is a construction certificate covering this area which needs to be checked for what it allows. There is no approval for this under the NSW approval and I am dealing with Mr Shaw at the moment. No further works are occurring here and a report will be provided to DPE when we receive it from Mr Shaw in about 1 to 2 weeks". Mr Mclachlan said: "why would a contractor undertake works without direction"? Mr Yeats said: "the contractor has an understanding of the ultimate development and is pushing ahead. He assumes approvals are in place. All the material has come straight out of Precinct 2 and just pushed across. I am not aware of any other material being brought across. I understand they were trimming in preparation for topsoiling, then they were advised to cease works". Mr Mclachlan said: "what confirmation can we get to confirm no material has been brought in Precinct 2"? Mr Yeats said: "we can provide signed affidavits. There is no practical reason for fill to be brought to Precinct 2 as there is excess in the borrow design and there has never been a requirement to fill in the area. The contractor would have knowledge of this. The survey pegs for Finished Level are in relation to the ultimate design and I am unsure whether the construction certificate covers this. However, this is in accordance with the DA. To achieve levels under the relevant design, they would need to get the relevant approvals. Leda is about to get the construction certificate for Precincts 1 and 2. Pegs are in place in anticipation of the construction certificate. In relation to the fill, it has been flagged with Mr Shaw and options are to either pull out or accept it will never be approved. The construction certificate is definitely in place for the areas of fill, although they potentially do not cover filling. I will provide you with the construction certificate number. All fill has level 1 assessment. It is disappointing this has occurred. The contractor has jumped the gun, but the construction certificate is in place, just not in accordance.

His written evidence was consistent with the answers given by him during his record of interview (Q94-103) and his oral testimony (T329.19-329.47): Q You deal then, in terms of your instructions, with the matter of the noise complaint and this is what was in your paragraph 89(f) in its original form, but you'll see it has been struck out, but by reference to your inspection report at tab 16, the noise complaint, can I suggest to you, according to your report, was because of the fill activities that were occurred in P2? A It seemed likely. So I'd received a complaint in regards to noise and heavy vibration as well, and I was tasked to try and get to the bottom of why that was occurring, and then when I visited the site, it was quite obvious that fill ‑ controlled fill works were occurring in that northern area of P2, which were in close proximity to that property. So connecting the dots, it seemed very likely that contrary to the concept that fill was being placed in that area, and that was probably why the residents in that area were complaining. Q When you say, "contrary to the consent," you mean contrary to the consent that you were administering; namely, the project approval? A Exactly. Yeah, contrary to the consent I was PCA for. Q But you understood that there was a concept issued by the council which was DA10/0800 that we discussed earlier? A Yes. I hadn't reached a CC. I was PCA for those works, yeah. Q I understand your view was that there was no construction certificate for those works. A Mm. Q But did you understand that those works, notwithstanding the absence of a construction certificate, were being undertaken consistent with a development consent? A I didn't, no, because we hadn't approved any plans. I wasn't aware that they had plans to follow, what level, what extent. You know, that hadn't been established. Q You hadn't investigated that at all. You just said there was no CC? A There was no CC. There were draft plans we were reviewing. The main item that was outstanding from my recollection was the satisfaction of several pre CC requirements from the consent, but certainly there was no CC issues, so they shouldn't have been doing works in that area. Fill works, in particular.

His results were summarised as follows in Table 1 in his first affidavit (with all areas given in ha): 'Site' is the whole of the Cobaki Estate 'Site' is the area that is the subject of works authorised under 'Part 2 - Bulk Earthworks and Civil Works' of the Project Approval Major Project Approval MP08 Date of aerial photograph Active cut or filling occurring since Project Approval at time of photograph Scenario 01 Scenario 02 Scenario 03 Earthworks carried out under pre-existing historical development consents ARE NOT to be excluded from the hectare limit Scenario 04 Earthworks carried out under pre-existing historical development consents ARE NOT to be excluded from the hectare limit Earthworks carried out under pre-existing historical development consents ARE to be excluded from the hectare limit Earthworks carried out under pre-existing historical development consents ARE to be excluded from the hectare limit 21 April 2014 Cut 17.8668 3.3254 17.6212 3.2924 Fill 35.2613 29.2327 30.0020 25.9330 Cut + Fill 53.1281 32.5581 47.6232 29.2254 25 June 2014 Cut 19.9036 3.4643 19.5816 3.4400 Fill 38.7761 31.8858 32.9972 28.3888 Cut + Fill 58.6797 35.3501 52.5788 31.8288 6 October 2014 Cut 22.7578 4.0015 21.8893 3.6743 Fill 38.5414 32.2586 33.5581 29.3819 Cut + Fill 61.2992 36.2601 55.4474 33.0562 9 April 2015 Cut 23.5679 3.6503 22.8731 3.3591 Fill 36.0950 30.3051 31.1591 27.0505 Cut + Fill 59.6629 33.9554 54.0322 30.4096 18 May 2016 Cut 20.5759 4.5500 19.9069 3.9496 Fill 33.4075 24.2384 26.9540 20.2758 Cut + Fill 53.9834 28.7884 46.8609 24.2254 24 February 2017 Cut 19.7740 4.1411 18.8329 3.5228 Fill 27.5876 22.3728 21.4709 18.4160 Cut + Fill 47.3616 26.5139 40.3038 21.9388

Second, CC 02/1368 was granted in 2003, and the bulk earthworks approved under it comprised combined cut and fill activities in which there were areas of nominated cut designated to provide fill for nominated fill areas. It was put to Dr Martens in cross-examination that the earthworks depicted in aerial photographs from 2014 could not have been carried out pursuant to CC 02/1368 issued in 2003. His response was as follows (T477.05-477.43): Q. No. I'll withdraw it then and ask it again. I'm sorry to have confused to. What I'm suggesting is this: if her Honour is focusing on the question has the defendant exceeded the maximum exposed disturbed area prescribed in condition 21A(b) of the project approval, according to your assessment, the two critical questions are, firstly, whether you include cut and fill, or only include cut; and, secondly, whether you exclude earthworks carried out under pre‑existing historical development consents. A. Yes. They're key questions to answer, but I would suggest the other question to answer is whether the assumptions that I made in relation to the site are correct. I haven't addressed that issue. Q. Well, I haven't asked you to do anything more than what you've been assumed in relation to the site. Do you understand that? A. Yes. Q. So we're proceeding on the basis that the assumptions that you've drawn, and on the basis of those assumptions you ‑ you agree, don't you, that the two critical questions in terms of determining whether there's been an exceedance of the maximum disturbed area under condition 21A are, firstly, whether you only count cut and don't count fill; and, secondly, whether you exclude earthworks carried out under pre‑existing historical consents. A. Yes. I've answered that question. It's a yes, with the proviso on the assumptions that I've made in relation to what the site is defined as. Q. Very well. A. Which I have been given. Q. If we go to your row for 21 April 2014, we'll take it one row at a time, if you do not exclude areas that you've identified as fill, and also areas that you have identified as earthworks carried out under pre‑existing historical development consents, then on your own calculations the hectare limit, whether it's 5 hectares or 5.59 hectares, has been exceeded? A. On these calculations, yes. Q. And that is the position, I suggest to you, in respect of each and every image you've analysed? A. Yes. I think I've answered that question, and I'll say it again. My analysis is based on two assumptions in relation to what the site may be. This result in table 1 defines the outcome of that analysis on the basis of those assumptions.

Likewise, Mr Shaw stated in his record of interview that (Q146-153): Q Are you aware of any approval that allows that stockpile? You've drawn an approximate location. A Yeah Q That it would allow that stockpile to be removed? A I - no, but I didn't see that as a major issue. I did know that, you know, they were doing that when we came on site. That was a stockpile where topsoil was being reused to stabilise other parts of the site. Certainly it's not within the boundaries of you know where they're permitted to do bulk earthworks, but to me that was - it was a stockpile that was there from previous works. So it's topsoil that's been located on private property in an area outside of the central open space. And my understanding was that that topsoil was being reused for the purpose of stabilisation of areas within the central open space. It was quite obvious that it was a stockpile. It wasn't virgin material. It was all topsoil sitting in a big mound. I'm aware that there's a number of topsoil stockpiles throughout the site of a similar nature. Some other areas that they reused topsoil as well. Q Can you mark those areas in pink on MS2 please? A I think there was an area over here that was a topsoil stockpile. Yeah, probably the only two that are jumping out at me right now. Q Can you mark in pink as well with an arrow where the material from those two stockpiles went? A I would not know. I would not know, no. All I was -1 was made aware by Leda that that material was being reused to stabilise areas within the central open space, so the approved areas of central open space topsoil. So it was excess topsoil that was stockpiled off site on private land that was being reused to stabilise the exposed surfaces in the central open space. Q I'm going to introduce document entitled "Cobaki Estate Central Open Space Project Approval 08_0200 consolidated approval for information". A Mm mm. Q Title it MS8 and sign and date the top. Can you please do the same? Can you please - I'm going to direct you to page 25. I'll label the top MS9 and sign and date. Would you please do the same? A Yep. Q Can you read Condition 41c. please A 41c. Notwithstanding A and B above, fill material required for the central 'open space area sourced from elsewhere on/off the site requires separate development approval unless otherwise approved by the Director General". Q What's your understanding of that condition? A If entered in fill material was required then - and it was outside of the central open space or the approved mod areas that it would need a separate approval. This is different. This is topsoil, it's not fill. So it's topsoil being used for environmental purpose, i.e. stabilising the work areas. So I wouldn't classify _ that as fill.

Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd

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