Sutherland Shire Council v Benedict Industries Pty Ltd [2017] NSWLEC 4 | Case summary

Sutherland Shire Council v Benedict Industries Pty Ltd [2017] NSWLEC 4 | Case summary | Zoe

[70]

TABLE OF CONTENTS TABLE OF CONTENTS The Council Prosecutes Benedict for Unlawfully Clearing Trees and Bushland Vegetation and for Building a Bund Wall [1] The Offences as Charged [4] The Prohibited Development Charge [8] The Council Has Not Changed Its Case [25] Evidence Relied Upon by the Parties [29] The Construction of the Bund Wall [33] History of the Use of Lots 1 and 2 for Quarrying [46] Purpose of the Construction of the Bund Wall [69] History of Relevant Applicable Planning Controls [77] The SSLEP 2000 [97] Sydney Regional Environmental Plan No 9 - Extractive Industry [106] The Proper Characterisation of the Use of the Bund Wall [120] Ancillary Use [132] The Building of the Bund Was Permissible With Consent Under the SSLEP 2000 as Ancillary Development [137] The Construction of the Bund Wall was Permissible With Consent Under SREP 9 [155] The Bund Wall Was Not Built to Dispose of Waste [163] Permissibility Under SREP 9 Prevails Over Prohibition in SSLEP 2000 [201] The Absence of Development Consent for Quarrying on Lot 2 Has Not Been Proved Beyond Reasonable Doubt [206] The Council Was Not the Only Consent Authority [210] Ministerial Authority to Grant Development Consent over Lots 1 and 2 Under Ordinance 105 Between 12 July 1946 and 26 June 1951 [226] The Authority of the Cumberland County Council to Grant Development Consent over the Site Under the CCPSO Between 27 June 1951 and 1 July 1962 [236] The Search Evidence of the Council [248] The Searches of the Council's Records Were Inadequate [268] Delegated Authority of the Council to Grant Development Consent [271] Problems With the RECFIND and Minute Book Searches [284] There Were Traces of a Development Consent for Lot 2 [309] Summary [320] The Existence of a Consent Granted for Quarrying on Lot 2 Can Be Inferred From the Facts and Circumstances [323] Proof of a Grant of Consent by Conduct - the Application of the Presumption of Regularity [325] The Council Has Not Disproved the Existence of a Consent to Quarry on Lot 2 [345] The Conditions of the 1967 Consent Authorised the Construction of the Bund [347] Applicable Principles of Construction of Development Consents [357] The Prohibited Development Charge Must be Dismissed [362] The TPO Charges [364] Terms of the TPO [370] Benedict Removed Trees as Defined Under the TPO [381] Was the Vegetation Removed "Bushland Vegetation"? [384] Principles Applicable to the Interpretation of the TPO [388] The Meaning of "Bushland Vegetation" in the TPO [394] The Expert Evidence [400] The Natural Vegetation was Altered [405] Structure and Floristics [417] Vegetation Mapping [422] The Council Has Not Demonstrated an Absence of Consent to Quarry on Lot 2 [476] Conclusion and Orders [486]

[73]

The Prohibited Development Charge

Section 76B of the EPAA states as follows: 76B Development that is prohibited If an environmental planning instrument provides that: (a) specified development is prohibited on land to which the provision applies, or (b) development cannot be carried out on land with or without development consent, a person must not carry out the development on the land.
Section 76C provides that: 76C Relationship of this Division to this Act This Division is subject to the other provisions of this Act, unless express provision is made to the contrary.
This includes s 109B (Liverpool City Council v Maller Holdings trading as Sydney Horse Transport [2014] NSWCCA 299 at [49]): 109B Saving of effect of existing consents (1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force. (2) This section: (a) applies to consents lawfully granted before or after the commencement of this Act, and (b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and (c) has effect despite anything to the contrary in section 107 or 109. (3) This section is taken to have commenced on the commencement of this Act.
Importantly, s 125(1) of the EPAA provides that: 125 Offences against this Act and the regulations (1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Secretary, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.
Accordingly, the four elements of the offence the subject of the prohibited development charge are that (Liverpool City Council v Maller Holdings Pty Ltd [2013] NSWLEC 154; (2013) 211 LGERA 360 at [3] per Pain J. This aspect of her Honour's reasons were not disturbed on appeal in Maller Holdings trading as Sydney Horse Transport): 1. Benedict; 2. carried out specified development on the land; 3. such specified development was prohibited from being carried out on the land by an environmental planning instrument; and 4. in engaging in that conduct, Benedict did something that it was forbidden to do by or under the EPAA within the meaning of s 125(1) of that Act.
Having regard to these elements, the council put its case this way: that it must prove beyond reasonable doubt that Benedict carried out an activity which amounted to specified development under the EPAA on land to which the SSLEP 2000 applied, which was prohibited by the SSLEP 2000 "and which did not have any other form of development consent available".
It is the council, and not Benedict, that bears the onus of proving beyond reasonable doubt that the use of land for the specified development was prohibited under the EPAA (Liverpool City Council v Maller Holdings Pty Ltd at [128]-[130] per Pain J. Clarified on appeal in Maller Holdings trading as Sydney Horse Transport at [49]).
The offence under s 76B is a wholly separate offence from that created under s 76A(1)(a) of the EPAA, which states that: 76A Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force…
That provision applies when an environmental planning instrument specifies that development can only be carried out with development consent. Or in other words, the development will be permissible with consent.
By contrast, s 76B mandates that the specified development cannot be carried out if the development is prohibited by an environmental planning instrument.
The elements of the offence are not the same. This means that if the council establishes the elements of the offence of carrying out development without consent under s 76A(1)(a) of the EPAA, this will not prove the elements of the offence of carrying out prohibited specified development under s 76B of that Act. As Benedict correctly, in my opinion, submitted, the elements of the offences are mutually exclusive, and thus, if specified development is permissible with consent, then the elements of s 76B cannot be made out.
Benedict was not charged with having done things forbidden by s 76A(1)(a) of the EPAA.
Accordingly, Benedict submitted, again, correctly, in my opinion, that if the Court were to find that the bund was permissible with consent under either the SSLEP 2000 or another environmental planning instrument, such as, relevantly, the Sydney Regional Environmental Plan No 9 - Extractive Industry (No 2 - 1995) ("SREP 9"), but that Benedict nevertheless carried out the development without consent, this could not result in a conviction.
In summary, Benedict contended that there were four alternative reasons why the prohibited development charge ought to be dismissed: 1. first, the building of the bund wall on Lot 2 was not prohibited development under the SSLEP 2000. It was permissible with consent under that instrument because it was an activity that was ancillary to quarrying on the site; 2. second, the carrying out of quarrying on Lot 2 was not prohibited development within the meaning of s 76B of the EPAA because it was permissible with consent under SREP 9, which prevailed over any prohibition in the SSLEP 2000; 3. third, even if the carrying out of development on Lot 2 was prohibited development upon a proper construction of the planning instruments, the council did not discharge its onus of proving that there was no development consent applying to both lots because either: 1. the council could not prove that a development consent had not been issued for quarrying on Lot 2; or 2. a grant of development consent in respect of quarrying on Lot 2 could be inferred, applying the presumption of regularity, in light of conduct evidencing the grant of such a consent, including the council's own conduct; or 3. the 1967 consent was, upon its proper construction, a consent authorising the construction of the bund wall on Lot 2; and 1. fourth, the council is precluded from contending that there is no consent on the grounds that to do otherwise would be an abuse of process. Benedict agreed, however, that if it was successful on any of its three bases above, there would be no necessity to determine this last argument (T1166:40-49).
It is axiomatic that the council must negate all rational hypotheses consistent with Benedict's innocence beyond reasonable doubt.
It should be noted that Benedict was not relying on the continuance of an existing use right which was, at the time of the alleged commission of the prohibited development offence, a prohibited use (see ss 107 to 109 of the EPAA). Rather, reliance was placed by it on s 109B of the EPAA (T1210:5-36).
Because I have accepted the first, second and third contentions (with the exception of (iii), concerning the scope of the 1967 consent), it is not necessary to determine Benedict's fourth contention, and I decline to do so given the complex nature of whether a declaration of the type proved by Benedict by way of remedy can be granted in criminal proceedings.

[74]

The Council Has Not Changed Its Case

Benedict asserted that the council had sought to belatedly and fundamentally change its position at the close of its case. It did so, Benedict contended, in two ways. First, by resiling from its earlier statement in its opening address that the construction of the bund wall on Lot 1 was with consent or was otherwise lawful. And second, by reserving its right to contend, again contrary to its opening submissions, that it did not bear the onus of proving that there was no consent for quarrying on Lot 2.
No application was made by the council to amend its case (at least not in this respect) and such an application would have been required in light of the council's opening (see paragraphs 49-54 of the council's written opening address dated 19 November 2015).
Were the council to have changed course, contrary to its opening which posited that an essential element of the charge in respect of the construction of the bund wall on Lot 2 was the absence of a development consent for quarrying or extractive industry of the kind the council accepted applied to Lot 1, then I would have accepted the submission of Benedict that any such application ought to be rejected. This is because to do otherwise would have caused procedural unfairness to Benedict insofar as it specifically did not (because it was not required to) adduce evidence about the absence of a consent specifically for the construction of the bund wall, but instead challenged the council's witnesses on the absence of a general development consent for extractive industry applying to Lot 2.
In the result, the debate is, in my view, moot for two reasons. First, because I do not understand the council to have altered its position in the manner contended by Benedict, a position made clear to, and accepted by, the parties during Benedict's closing address (T1178:37). That is to say, this judgment proceeds on the basis that the council accepted that the use of Lot 1 for the construction of the bund wall was pursuant to a development consent, or was otherwise lawful, and that it bore the onus of proving that there was no consent for quarrying or the carrying out of an extractive industry on Lot 2. And second, because, in any event, as the reasons below reveal, I do not accept that the council has discharged its burden of proving beyond reasonable doubt the non-existence of a consent permitting the construction of the bund wall on Lot 2.

[75]

Evidence Relied Upon by the Parties

Numerous exhibits were relied upon by both the council, and, in particular, Benedict.
The council also sought to rely upon the following affidavit evidence: COUNCIL WITNESSES DATE AFFIRMED DATE SWORN Vanessa Bailey, Development Compliance Supervisor, (June 2006 to 4 November 2012), Change Manager (5 November 2012 to current - as at 1 August 2013) employed by the council 07/09/12 01/08/13 Karen Barrass, Executive Officer - Governance employed by the council 03/06/15 Ryan Church, Survey Technician employed by the council 07/09/12 Stephen Cook, Property Management Project Officer employed by the NSW Department of Trade & Investment - Metropolitan Office 22/04/15 07/09/12 Ian Drinnan, Manager of Environmental Science & Policy Unit and Principal Environmental Scientist employed by the council 04/07/13 30/10/13 04/02/14 Christine Edney, Environmental Assessment Officer - Planner employed by the council 29/11/12 03/06/15 Alyce Fisher, Solicitor employed by the council 03/06/15 02/11/15 Lucy Harries, Environmental and Building Compliance Officer employed by the council 04/12/12 Pamela Hazelton, Soil Scientist, Program Head, Coordinator and Lecturer in the Master of Environmental Engineering Management, University of Technology, Sydney 11/02/14 26/02/14 28/11/12 Stephen Heapy, Manager, Land Information Unit employed by the council 02/07/13 29/10/13 07/11/13 19/07/13 Todd Hopwood, Governance Manager (as at 19 July 2013), Manager, Administration and Risk (from 11 May 2015) employed by the council 05/06/15 17/11/15 Jordan Lewis-Stark, Information Management Officer, Records & Information Division employed by the council 01/06/15 Jeffrey Lucke, Surveyor employed by the council 07/09/12 Roslyn McCulloch, solicitor for the council 28/11/12 Beth Morris, Senior Policy Advisor employed by the council 07/09/12 Rachel Schimpf (later Zuhra), Supervisor Governance Support employed by the council 02/06/15 James van Breda, Tree Assessment Supervisor employed by the council 04/06/15 Gerhard Walz, Surveyor employed by the council 04/12/12 04/07/13 Patrick Weston, Tree Preservation Officer employed by the council 06/12/12 Ellen Whittingstall, (Executive Officer Privacy and Access to Information employed by the council 22/05/15 04/06/15

[78]

Importantly, Lot 2 is wholly within what was formerly Lot 456, or Portion 456.
The quarry, the clearing of the vegetation and the construction of the bund wall, are located both on Lot 2 (the eastern side of the quarry) and also Lot 1 (the western side of the quarry). No charges are brought by the council, however, in relation to the development on Lot 1 because of the existence of a prior consent permitting quarrying on Lot 1 (the 1976 consent). A survey plan of the location of the bund wall on Lots 1 and 2 is annexed to this judgment at "A" (the bund wall, insofar as it is located on Lot 2, is marked in yellow).
It was an agreed fact that on 14 July 1967, the council issued notice of approval 900/67 under the County of Cumberland Planning Scheme Ordinance or the Town and Country Planning (General Interim Development) Ordinance 105 in respect of the quarrying activity on Lot 1 ("the 1967 consent").
It is the clearing of vegetation and the construction of the bund wall around the eastern, and small parts of the northern, perimeter of Lot 2 only, which has resulted in the alleged commission of all five offences.
It is not in contention that the trees and vegetation present within the footprint of the bund wall on Lot 2 were removed solely so that the bund wall could be constructed. It is the removal (and hence their 'injury') of these trees and vegetation that form the basis of the TPO charges.
It is not in contention that Benedict caused the bund wall to be built. Commencing on 8 September 2010 and continuing into mid 2012, substantial quantities of fill material were transported from Benedict Recycling Pty Ltd's ("Benedict Recycling") Chipping Norton depot to Benedict's quarry and used to construct the bund wall. The directors, secretaries and shareholders in Benedict Recycling are also the directors, secretaries and shareholders in Benedict.
Weighbridge dockets (or tax invoices) were generated in respect of the fill transported to the quarry for construction of the wall. The net mass of the fill the subject of the dockets is 210,910 tonnes. The proportion of the bund wall that is located on Lot 2 is 40.6%, which amounts to a total net mass of 85,629 tonnes. The bund wall occupies 9.3% of Lot 2.
The approximate dimensions of the bund wall are 685m in length, 5m in height (average), and 5m in width at the top (average). It is approximately 20m wide at its base.
As referred to above in the table (at [36]), it is also not in dispute that Lot 2 is wholly within what used to be Lot 456 in DP 752034, or Portion 456, Parish of Holdsworthy, County of Cumberland.

[79]

History of the Use of Lots 1 and 2 for Quarrying

As the history of the site reveals, since at least the 1950s a number of permissive occupancies and, subsequently, licences, including environmental protection licences ("EPL"), have been granted to Benedict, and the prior owners and operators of the quarry, to permit quarrying or extractive activity to be carried out over both Lots 1 and 2: 1. commencing in 1953, Burfield Pty Ltd ("Burfield") was the beneficiary of permissive occupancy 53/125 to use the land comprising Lot 2 for the purposes of quarrying ironstone gravel; 2. the council itself was the beneficiary of permissive occupancy 66/92 to use the land now known as Lot 1 and Lot 2 for the purposes of quarrying gravel for a period commencing in 1966; 3. in 1966 permissive occupancy 66/379 was granted to A H Walker to quarry in Lot 1; 4. from 1976 to 1980, Walker Quarries Pty Ltd was the beneficiary of permissive occupancy 76/31 to use the land comprising Lot 1 and Lot 2 for the purposes of a crushed rock quarry; 5. on 1 September 1980, the right to use the land comprising Lot 1 and Lot 2 for the purposes of a crushed rock quarry was transferred by the Crown to The Readymix Group Limited ("Readymix") and Readymix used the land for that purpose until about 1998; 6. on 21 August 1998, licence L 309860 under the Crown Lands Act 1989 was granted by the Crown to the Chipping Norton Lake Authority ("CNLA"), which remained the beneficiary of that licence until 2005; and 7. on 2 March 2010 the Crown granted licence RI 454972 under the Crown Lands Act to Benedict to use the land comprising Lot 1 and Lot 2 for purposes that included quarrying. That licence continues to apply to the land.
In addition to the permissive occupancies granted by the Crown in the 1950s and 1960s to use the land for the purposes of quarrying gravel, the Sandy Point Quarry (Lot 1 and Lot 2) has been the subject of grants by the Crown of permissive occupancies and licences to use that land for the purposes of quarrying sandstone/crushed rock almost continuously for a period of approximately 40 years since the grant of permissive occupancy 76/31 in 1976.
As the evidence discloses, the council has known that the Sandy Point Quarry (Lot 1 and Lot 2) has been used for the purposes of quarrying under the permissive occupancies and licences throughout the period since the 1950s. The disturbance to the area was evident in aerial photographs on the council database.
At times the council used material from the quarry and had the right to quarry Lot 1.
Although the initial boundary of permissive occupancy 66/379 granted to A H Walker in 1966 did not include the land now known as Lot 2, but only included Lot 1, in 1973 the Crown (the Department of Land) reconsidered the appropriate boundary of that permissive occupancy. The Department considered that the final surface levels suitable for subsequent residential development in the area should be incorporated into permissive occupancy 66/379 and that full development of the quarry could necessitate adjustment of the boundaries of the occupancy to allow the quarry floor to be blended with adjoining natural surface, and moreover, because any "existing use" would only permit the then present area (Lot 1) to be quarried, any adjustment ought to be resolved prior to residential zoning.
In 1974 the council gave its in-principle concurrence to the extension of permissive occupancy 66/379 over the land now known as Lot 2 on condition that it was provided with the details for its concurrence. In 1977, the council was provided with those details.
The details were provided in the Schedule of Conditions to permissive occupancy 76/31 (which replaced permissive occupancy 66/379), which included the "Quarry Plans" (or "Homesite Plans").
The Homesite Plans set out details about the extension of the quarry over the land now known as Lot 2 and the implementation of a plan to have the finished surface levels set at acceptable grades by designed finished levels.
An internal council memorandum from its Deputy Town Planner to its Town Planner dated 31 May 1977 made it clear that the council was aware of the quarrying program extending into Lot 2 and was in possession of, and had seen, the Homesite Plans.
During the late 1970s, the council formed the view that there was no development consent for quarrying on the Sandy Point Quarry and that this should be regularised by the submission by Readymix of a development application and an environmental impact statement. However, when the Department of Lands wrote to the council reminding it that it had initially granted development consent in 1967, the council investigated the matter and concluded that its files were incomplete and the records beyond 1973 "obscure". It informed both the Department of Lands and Readymix by letters sent on 3 April 1981 that no development application was required in order for Readymix to continue to use the Sandy Point Quarry for the purposes of a quarry.
In the period from April 1981 through to 2012, the Sandy Point Quarry (on Lot 1 and 2) was used for the purposes of quarrying with the knowledge of, and without any objection from, the council.
In 1982, the council granted building approval 647/82 for the relocation of a weighbridge, office building, storage tanks and car park area on Lot 1.
In granting the building approval, the council stamped as approved a plan prepared by Readymix entitled "Topographical Plan, Sandy Point Quarry Final Quarry Floor". This approved plan depicts the natural and design contours of the quarry operating across Lot 2, indicating that the proposed quarry floor would extend across that lot.
In 1983 and 1984, council officers attended meetings at the Sandy Point Quarry with representatives of Readymix and the Lands Office. On the council's file DC 975/WAL are minutes of meetings held at the Sandy Point Quarry on a number of occasions. For example, on 29 April 1983, Mr Des Hewitt attended a site meeting at the quarry at which the "restaging of areas 2, 4, 5 and 6" was discussed in detail. When regard is had to the staging contemplated by the conditions of permissive occupancy 76/31 and the Homesite Plans, it appears that this discussion concerned quarrying into Lot 2.
Memoranda on DC 975/WAL show that the council remained actively interested and aware of the quarrying operations in the latter half of the 1980s. For example: 1. in an internal memorandum dated 11 February 1986, it is recorded that the council had received a request from "DEP" (which it may be inferred was the Department of Environment and Planning) regarding the operations at the Sandy Point Quarry. The author of the memo "Informed them that the quarry did not operate under existing uses - though establishments had approvals. Lands Dept tightly controls operations within permissive occupancy"; 2. the minutes of the Sutherland Traffic Committee meeting addressed proposed "No Standing" restrictions at the entry to the Sandy Point Quarry. These minutes indicate that the council was aware that the Illawarra Mini Bike Training Club was situated within the Readymix quarry complex. The Illawarra Mini Bike Training Club was situated on Lot 2, suggesting that the quarry was considered to be an indivisible site over all of the land covered by permissive occupancy 76/31,namely, both Lot 1 and Lot 2; and 3. correspondence between the Department of Housing and the council in January 1987, indicating that the Department had determined that the site was considered to be suitable for future residential development and that the Department wished to resolve the issue of appropriate grades and backfilling compaction requirements with the quarry operator and requested that the council provide its requirements in that regard. The council provided its requirements and did not state that quarrying activities were restricted to Lot 1 only.
In October 1982 the council appointed Neil Bird & Associates Consultants ("Neil Bird") to undertake an environmental impact study ("EIS") under the direction of a steering committee representing the council, the Department of Environment and Planning and the Lands Office. Pursuant to that appointment, an environmental study for the West Menai Release Area was prepared by those consultants on behalf of the council. Although the council argued that it was not its document, in my view, it was (see the opening section of Volume 1 at pp i to ii).
It may be readily inferred that the council was aware of the contents of the study. The relevance of the study is that it was specifically prepared in the context of town planning in relation to the West Menai area and it contains numerous references to the quarrying use of the Sandy Point Quarry and its intended continuation and identifies the quarry as being on Lot 1 and Lot 2.
Mr Roger Moona, formerly the CSR Operations Manager for Sydney hard rock and sandstone quarries, including the Sandy Point Quarry, gave evidence by reference to a 1994 aerial photo, to the effect that by 1994 the main quarry pit had advanced well inside Lot 2 and the quarrying continued to advance to the east in Lot 2 up until April 1998.
In 1998 the council confirmed to Readymix that the scope of the development consent granted by council for the Sandy Point Quarry would have been consistent with the operational parameters and extent of permissive occupancy 76/31, which has at all times covered the whole of the Sandy Point Quarry, including Lot 2.
Finally, the various operators of the Sandy Point Quarry have held a series of pollution control licences or EPLs under the Protection of the Environment Operations Act 1997 ("POEOA") and the since repealed environmental statutes which preceded the enactment of that Act (relevantly for present purposes, the Clean Air Act 1971 and the Noise Control Act 1970) since the 1980s, permitting extractive industry and crushing and grinding works on the Sandy Point Quarry. The land identified as the "premises" under those licences has consistently been described as "the Sandy Point Quarry" without limitation as to the land known as Lot 2. The current licence identifies the licensed premises as including Lot 2.
These licences were contained on council's file HB 975/WAL.
Since 1997 the Environmental Protection Authority ("the EPA") has been precluded from issuing EPLs for activities unless there is a development consent authorising the scheduled activities (s 50 of the POEOA).
The council has never, prior to commencing these criminal proceedings, informed the EPA, or suggested to it, that there was no development consent for quarrying on Lot 2. The first notification to the EPA to this effect was by way of a letter dated 14 November 2012, sent after the commencement of these proceedings in September 2012.

[80]

Purpose of the Construction of the Bund Wall

Because the purpose of the construction of the bund wall is central to the determination of several of the core legal issues raised by the prohibited development charge, it is necessary to consider why the bund wall was built by Benedict.
The council contended that the bund was built in order to dispose of waste brought onto the land. This myth can be, upon consideration of the evidence, readily debunked (see additionally the reasons at [163] - [199]).
In a letter dated 19 July 2012 from Benedict to the council, the following reasons for the construction of the bund wall were given by Benedict: 1. Need for the bund i.e. a. Security b. Controlling Access c. OH&S issues - Compliance with mine site and workplace safety legislation d. Noise attenuation. e. Water management f. Protection of visual amenity
These reasons are, in my view, confirmed, absent any doubt, by the evidence put before the Court. This evidence consisted of: 1. evidence that there was a longstanding and persistent security problem at the Sandy Point Quarry including trespass onto the site by motorcycles and 4WD vehicles, theft, vandalism and illegal dumping. See: 1. the oral evidence of Mr Moona: T853:10-854:11 and 855:44-857:18; 2. documentary evidence of the CNLA (see memoranda dated 25 October 2001 and, in particular, 19 and 22 February 2002); 3. documentary evidence of the NSW Police (various COPS reports during 2011 detailing attempted, and actual, thefts of vehicles, machinery, break and enters and malicious damage to property at the quarry); 4. the evidence of Dr David Roberston in his statement of evidence dated May 2015; his Heathcote Ridge, West Menai - State Significant Site Ecological Assessment for Gandangara Local Aboriginal Land Council dated December 2011; and his oral evidence (at T824:35-38 and 832:34-50); 5. the evidence of Ms Lucy Harries (T279:5-7; 280:11-281:12 regarding illegal dumping and T282:10-27, regarding the use of the area by motorcycles); 6. evidence of Mr Ian Drinnan, who acknowledged that the site was known for vandalism, 4WD vehicles and trail bike riding, and illegal waste dumping (based upon his own observations) (T85:1-7 and 135:9-42); and 7. various aerial photographs of the quarry site over time showing what may be inferred are vehicle tracks; 1. inferences properly available from the evidence of the council's town planner, Ms Christine Edney, that the bund was "associated with the quarrying" (T600:1-4); 2. evidence from Mr Moona that there previously existed a bund wall on the quarry (T848:20-849:20); 3. evidence from Mr Moona that the quarry was expanding in an easterly direction (T852.30); 4. evidence that other measures (such as fencing, placement of rocks and the erection of a smaller bund wall) were inadequate to address the security/trespass issue (the evidence of Mr Moona at T853:29-854:17; the documentary evidence of the CNLA referred to above; and the documentary evidence of the NSW Police, also referred to above, showing ongoing incidents, despite security measures); 5. evidence that the erection of perimeter bund walls was a recognised measure carried out by another unrelated quarry operator on a number of quarry sites for the purposes of security and visual amenity (evidence of Mr Moona at T855:44-856:9); 6. evidence that the bund wall had physical and locational characteristics which had the effect of impeding unauthorised access onto the Sandy Point Quarry, which included: 1. evidence of the location of the bund being on the perimeter (see the survey plan annexed to the affidavit of Mr Gerhard Walz sworn 4 December 2012, and a 2012 aerial photo with cadastral boundary overlay annexed to the affidavit of Mr Steven Heapy sworn 28 November 2012); 2. evidence of the physical dimensions and physical characteristics of the bund wall demonstrating that the bund wall was sizable with steep batters (see the evidence of Mr Walz referred to above and his oral evidence at T213:21, and the agreed facts referred to earlier in this judgment as to the dimensions of the bund); 3. the view of the bund wall and Lots 1 and 2 by the Court at a site inspection held on 23 November 2015; 4. various photographs of the bund showing its height, contours and slope, taken by Ms Edney and annexed to her affidavit sworn on 29 November 2012; 5. photographs taken by Ms Harries annexed to her affidavit dated 4 December 2012 and three other photographs taken by Ms Harries where she acknowledges that they show motorcycle or vehicle access: T286:10-34). The latter three photographs, tendered by the council, clearly depicted that for the bund to be traversed by a vehicle, its structure had to be altered and the drainage ditch filled to give the vehicle's tyres purchase. These photographs permit the inference that the bund was for the purpose of excluding such vehicles and that unless it was itself vandalised and physically altered, it was likely to be effective in this regard; and 6. evidence of Ms Harries that in her view the bund wall would present a very serious impediment to anyone wishing to drive or ride a vehicle onto the quarry site (T285:33-40); 1. evidence that sections of tree trunks and branches were placed on the top of the bund wall to restrict movement (see the evidence of Mr Drinnan contained in a diary note dated 17 April 2012 annexed to his affidavit sworn 4 July 2013 and his oral evidence at T83:30-50, 84:41-50 and 135:8-26. And see also the evidence of Ms Harries contained in her affidavit of 4 December 2012, including the photographs annexed thereto); 2. evidence that security of the quarry site was a requirement imposed on Benedict under its s 34A Crown Lands Act 1989 licence issued by the Department of Lands, RI 454972, dated 2 March 2010 (see, especially, conditions 38, 55 and 66); 3. evidence that the council's officers perceived the structure to be a perimeter / bund wall / embankment (see the evidence of Mr Drinnan contained in his diary note of 17 April 2012, and his oral evidence at T83:25-84:8; the evidence of Ms Harries in her affidavit dated 4 December 2012, in particular the captions to some of the photographs she annexed to her affidavit and her oral evidence at T299:29-44 and 300:13-44; and the evidence of Ms Edney at T499:1); 4. evidence that the council's Manager of Environmental and Building Compliance, Mr Michael Ryan, perceived the bund wall to be a barricade and informed the council, including Ms Harries, of this (see also the oral evidence of Ms Edney at T492:20-45); 5. evidence that one of the purposes of the bund wall was for control of stormwater, site runoff, and drainage (see the evidence of Mr Drinnan in his diary note dated 17 April 2012, his affidavit dated 4 July 2013 and at T83:42-50, and the internal memorandum of Ms Harries dated 23 April 2012); 6. evidence that the bund wall had drainage channels at the base of its walls on the inside and outside, and that the effect of the placement of the bund wall was to change the drainage and natural flows of the quarry site (see the report of Mr Drinnan dated July 2012, annexed to his affidavit sworn 7 September 2012, and the evidence of Ms Harries at T285:10-13 and 296:1-15); 7. evidence that the need for the bund was for security, controlling access, occupational health and safety compliance with mine site and workplace safety legislation, noise attenuation, water management and visual amenity (see the letter from Benedict to the council dated 19 July 2012 and the oral evidence of Mr Drinnan at T135:7-35); and 8. the hearsay evidence, not admitted as truth of its contents, of statements made by Benedict's representatives to council confirming that the purpose of the construction of the bund wall was as claimed by Benedict. This evidence put the council on notice that the purpose of the bund was allied to the use of the site as a quarry, rather than for some other nefarious purpose, such as the disposal of waste. The council did not adduce any evidence to the contrary notwithstanding this notice: 1. the oral evidence of Ms Edney at T484:40-44 and 489:41-491:30; 2. the evidence of Ms Harries contained in handwritten notes made on 17 April 2012, an internal memorandum from Ms Harries to Mr Ryan dated 23 April 2012, and her oral evidence at T280:41-49, 281:18-282:8, 283:27-47, 284:10-50; 285:1-19, 288:34-50, 289:1-7, 295:22-50, 296:41-44 and 297:5-24; 3. evidence of what Benedict said in a written response to statutory notices issued by the council (but excluding the letter from Benedict to the council dated 19 July 2012, for reasons explained below) as given by Ms Harries (T306:28-309:2, 318:23-319:45); 4. the oral evidence of Mr Drinnan where he accepted that he was told about the previous operator having the fence cut and other criminal acts (T140:16-50) and that he was advised of the stormwater and drainage purpose of the bund by Benedict (T141:5-8); 5. evidence of the location of the bund, namely, around the perimeter of Lots 1 and 2, rather than material dumped in a mound or placed on the quarry floor (more logical); 6. evidence of the size and slope of the bund; and 7. evidence of the significant cost to Benedict to build the bund (see the covering letter from Benedict to the council dated 19 July 2012).
Contrary to the council's submission, the evidence as to the purpose of the bund wall cannot seriously be described as "tenuous". Rather, it powerfully demonstrated that the bund was built as an important aspect of the quarry's operations by securing the site, rendering it safe, deterring and preventing trespassers, and to assist with drainage.
I specifically reject the council's submission that the bund could not be for the purpose of securing the site given its location. To the contrary, it is constructed exactly where it is most logical to construct a fence or bund, namely, on the perimeter to the quarry. To construct it close to the quarry face would not be logical as it would impede the eastward advance of the quarry face, and would provide inadequate protection for the eastern parts of the site, which various aerial photographs admitted into evidence demonstrate, was riddled with car and bike tracks.
A submission by the council as to the "massive cost of transporting the material to the site and forming it into the structure it became", notwithstanding the evidence by Mr Walz as to the bund's volume, was entirely speculative.
I therefore find, without any doubt whatsoever, that Benedict constructed the bund for the purpose of securing the quarry from trespass, theft, vandalism and to ensure basic site security and safety, in addition to the other purposes related to the quarrying use of the land identified above, including water management.

[81]

History of Relevant Applicable Planning Controls

As set out in the affidavit of Ms Beth Morris (a Senior Policy Advisor in the council's Environment Planning Division), sworn 7 September 2012, the following relevant town planning controls applying to the Sutherland Shire have been in force since 12 July 1946, in the form of the planning instruments listed below: 1. 12 July 1946 - Town and Country Planning (General Interim Development) Ordinance ("Ordinance 105"); 2. 27 June 1951 - The County of Cumberland Planning Scheme Ordinance ("the CCPSO"); 3. 5 March 1976 - Interim Development Order No 30 - Shire of Sutherland; 4. 24 April 1980 - Sutherland Planning Scheme Ordinance; 5. 1 November 1991 - Interim Development Order 23; 6. 27 March 1992 - Sutherland Local Environmental Plan 1992 ("SLEP 1992"); 7. 12 Nov 1993 - Sutherland Local Environmental Plan 1993 ("SLEP 1993"); 8. 15 Dec 2000 - SSLEP 2000; and 9. 29 Nov 2006 - Sutherland Shire Local Environmental Plan 2006.
In relation to applications for development consent, since 1951 each of the local schemes have followed the pattern established by the CCPSO. In what can analogously be regarded as a development control table, the CCPSO created zones and set out in tabular form the various purposes for which land could be used within those zones.
Ordinance 105 was made under the Local Government Act 1919. Under Ordinance 105, local councils were appointed as "interim development authorities".
Relevantly, cl 4 of Ordinance 105 permitted certain "interim development" in different classes including: 1. Class II - development by a person carrying on a public utility undertaking; 2. Class III - the "rebuilding, restoration or replacement" of what included war damaged buildings; 3. Clause IV - permitted "interim development"; and 4. Class V - development of any description specified in Sch 1.
All other development required the permission of the Interim Development Authority.
Schedule 1, cl 7 of Ordinance 105 included within the list of permitted interim development: The carrying out by the owner or lessee of a mine, on the mine, of any development required for the purposes of the mine, except - (a) the erection of buildings (not being plant or other structures or erections required for the mine, working, treatment or disposal of minerals), and the reconstruction, alteration or extension so as materially to affect the design or external appearance thereof, of buildings; (b) the formation or alteration of any means of access to a road.
The definition of "mine" excluded a quarry (see cl 3).
Under the CCPSO councils were appointed as the "responsible authority" (cl 6(1)). The CCPSO applied to the land that is now known as Lots 1 and 2 of DP 1176153, formerly known as Lots 7307 and 7308 in DP 1162238 and Lot 456 (now Lot 2) in plan 6887-2030.
Maps under the CCPSO showed that the land now known as Lots 1 and 2 in DP 1176153 was included in land zoned "Special Uses Military".
Clause 23C(1)(a) and (2) contained in Pt IIA provided that certain land was reserved for "special uses" and could not be used to "erect a building or carry out work of a permanent character or make any permanent excavation on land reserved under this Part", other than that which was incidental to the reserved purpose, without the consent of the responsible authority. Under cl 26 and the relevant Table, buildings could be created or used with consent for any purpose.
Clauses 32 and 33(a) of Pt IV permitted the continuation of lawful existing uses. An existing work in the Special Uses zone could only be altered, enlarged or extended with consent.
On 2 April 1954, a notice was published in the New South Wales Government Gazette (No 58) ("the Gazette") that the CCPSO was suspended with respect to land referred to in a Schedule to the notice. This applied to the Sandy Point residential area, but not to the site (Lots 1 and 2), so that the CCPSO continued to apply to the site.
Interim Development Order 30 applied only to waterfront areas, so the CCPSO continued to apply to the Site.
The 1980 Sutherland Planning Scheme Ordinance applied to all land within the Shire of Sutherland other than the land described in Sch 8, shown on the scheme map (cl 5). Because the site was shown on the map as "excluded", the CCPSO therefore continued to apply to it.
Interim Development Order 23 came into force in November 1991 and applied to the Menai Town Centre but not to the site.
Under the SLEP 1992 the site was zoned 1(b) Rural (Future Urban), that is, "rural land capable of future urban development". In the Development Control Table, in Zone 1(b) Rural (Future Urban), "extractive industry" was prohibited.
The term "extractive Industry" was defined in the SLEP 1992 as: An industry or undertaking, not being a mine, which depends for its operations on the winning of extractive material from the land upon which it is carried on.
The SLEP 1992 changed the nature of the development for which consent could be granted on what is now known as Lots 1 and 2 of DP 1176153.
By reasons of ss 107 and 109 of the EPAA, Lot 1 could continue to be used in accordance with the 1967 consent granted to A H Walker, however, after the SLEP 1992 took effect, and because of the zoning of the land, quarrying could not be consented to on Lot 2.
The following year, the SLEP 1993 came into force. The zoning for the land remained the same and "extractive industry" was prohibited (see the Development Control Table).

[83]

Sydney Regional Environmental Plan No 9 - Extractive Industry

SREP 9 is an environmental planning instrument made in 1995 under the EPAA. As at the date of the prohibited development charge, SREP 9 applied to land in the Sutherland Shire.
The aims and objectives of SREP 9 are stated as: 2 Aims, objectives etc This plan aims: (a) to facilitate the development of extractive resources in proximity to the population of the Sydney Metropolitan Area by identifying land which contains extractive material of regional significance, and (b) to permit, with the consent of the council, development for the purpose of extractive industries on land described in Schedule 1 or 2, and (c) to ensure consideration is given to the impact of encroaching development on the ability of extractive industries to realise their full potential, and (d) to promote the carrying out of development for the purpose of extractive industries in an environmentally acceptable manner, and (e) to prohibit development for the purpose of extractive industry on the land described in Schedule 3 in the Macdonald, Colo, Hawkesbury and Nepean Rivers, being land which is environmentally sensitive.
Significantly, by reason of cl 7, extractive industries were permissible with consent: 7 Extractive industries permissible with consent (1) This clause applies to land described in Schedule 1 or 2. (2) A person may, with the consent of the council, carry out development for the purpose of an extractive industry on land to which this clause applies. (3) The council must not grant such a consent unless: (a) it has considered the effect of the development on flood behaviour, the water quality, quantity and hydrodynamics of any watercourse or underground waters and also the effect of flood behaviour on the development and operations associated with the development in the vicinity, and (b) it has considered a rehabilitation plan prepared in accordance with the Guidelines for Rehabilitation Plans in the Extractive Industry Report, and (c) it is satisfied that, while the development is being carried out, noise and vibration levels will generally be in accordance with the guidelines in the State Pollution Control Commission Environmental Noise Manual (1985 edition) available at the offices of the Environment Protection Authority and the councils of the areas specified in Schedule 4, and (d) it is satisfied that rehabilitation measures will be carried out in accordance with the guidelines in the Urban Erosion and Sediment Control Handbook (1992) prepared by the Department of Conservation and Land Management and available at the offices of the Department of Land and Water Conservation.
By cl 5 of SREP 9, the "council" was defined as "the area in which the development is or is proposed to be carried out".
Clause 5 of that instrument also defined "extractive industry" to mean: extractive industry means: (a) the winning of extractive material, or (b) an undertaking, not being a mine, which depends for its operations on the winning of extractive material from the land on which it is carried on, and includes any washing, crushing, grinding, milling or separating into different sizes of that extractive material on that land.
The term "extractive material" is further defined to mean "sand, gravel, clay, turf, soil, rock, stone or any similar substance". It was not in dispute that the sandstone extracted from the quarry the subject of these proceedings constituted "extractive material".
Clause 8 listed certain steps that had to be followed by the council upon receipt of an application for consent. This included forwarding a copy of any development application to the Director-General of the Department of Mineral Resources within seven days of receipt, and taking into account any response received by the Director-General within the relevant time frame.
By item 4 in Div 8 of Sch 1 to SREP 9, the Sandy Point Quarry site (Lots 1 and 2) was identified by the following words: The land covered by Licence Number 76/31 Metropolitan, Sandy Point, CSR.
Importantly, cl 19(1) of SREP 9 stated as follows: 19 Extractive industry and waste (1) Nothing in this plan allows the use of land for the disposal of waste brought on to the land from other land, whether or not such a use is ancillary to the use of land for the purpose of extractive industry.
Section 36 of the EPAA relevantly states that: (1) In the event of an inconsistency between environmental planning instruments and unless otherwise provided: (a) there is a general presumption that a State environmental planning policy prevails over a local environmental plan or other instrument made before or after that State environmental planning policy and
This was also effectively provided for by cl 4(1) of SREP 9 which provided that: 4 Relationship to other environmental planning instruments (1) This plan prevails to the extent of any inconsistency between it and another environmental planning instrument, except a State environmental planning policy.
While the Environmental Assessment and Planning Amendment Act 2008 converted regional environmental plans into State Environmental Planning Policies under Div 2 of Pt 3 of the EPAA, some existing SREPs were grandfathered and it appears that SREP 9 was one of them (see cl 120 in Div 2, Pt 21, Sch 6 of the EPAA).
The council submitted that the consequences of the historical planning controls applicable to Lot 2 were that: 1. as a result of the provisions of Ordinance 105, and subsequently the CCPSO, until 1992, in certain circumstances, use of what is now Lot 2 for quarrying was permissible with consent; 2. but under SREP 9, while the use of Lot 2 for quarrying was permissible with consent, cl 19(1) of that instrument excluded its operation; and 3. otherwise, the use of Lot 2 for quarrying was prohibited under the SSLEP 2000, and along with it the construction of the bund.
By contrast, Benedict argued that, first, the development the subject of the charge (the building of the bund) was not prohibited under the SSLEP 2000. Rather, it was permissible with consent under that instrument because it constituted ancillary development to the primary legal use of the site. And second, that the bund was development for the purpose of an extractive industry within the meaning of SREP 9.

[84]

The Proper Characterisation of the Use of the Bund Wall

Whether the bund is for the purpose of an extractive industry within the meaning of SREP 9 or ancillary to the primary legal use of a site for the purposes of SSLEP 2000, depends on the proper characterisation of the purpose of the bund.
The term purpose in planning law describes the character which is imparted to the land at which the use is pursued; it is not a reference to the subjective intention of the user (Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529 at 534-536 per Kitto J, Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 309-310 per McHugh JA and Macquarie International Health Clinic Pty Ltd v University of Sydney (1998) 98 LGERA 218 at 221 per Stein JA, with whom Mason P and Meagher JA agreed).
As Preston J opined in Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 (at [27]-[28], [34] and [36]. Affirmed in Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107; (2011) 180 LGERA 343 at [50]-[55] and see more recently Jojeni Investments Pty Ltd v Mosman Municipal Council [2015] NSWCA 147; (2015) 208 LGERA 54 at [75]): 27 In planning law, use must be for a purpose: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535 and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGRA 173 at 188. The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534. 28 In determining whether land is used for a particular purpose, an enquiry into how that purpose can be achieved is necessary: Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 at 499-500. The use of land involves no more than the "physical acts by which the land is made to serve some purpose": at 508. … 34 However, the nature of the use needs to be distinguished from the purpose of the use. Uses of different natures can still be seen to serve the same purpose: see Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534, 535 and Warringah Shire Council v Raffles (1978) 38 LGRA 306 at 308. … 36 The characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes: Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310.
His Honour elaborated upon the principles of the characterisation of the purpose of development of land in Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147; (2013) 201 LGERA 116 (at [24]-[32]): 24 Planning law turns on the characterisation of the purpose of development of land. The threefold classification in the EPA Act and environmental planning instruments made under it in regard to the carrying out of development depends on the characterisation of the purpose of the development. The threefold classification is of development that may be carried out without development consent, development that may be carried out with development consent, and development that is prohibited or cannot be carried out with or without development consent: Chambers v Maclean Shire Council at [33]. 25 That threefold classification is manifested in the land use table for the various zones identified in environmental planning instruments, particularly at the local level (referred to currently as local environmental plans). The land use table for each zone identifies, by reference to the purpose of the development, the categories of development that fall within each of the three classifications. The purpose of a development is objective in the sense that it is the end which is seen to be served by the carrying out of the development, not subjective in the sense that it is the object in the minds of the persons carrying out the development: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534. 26 Commonly, the environmental planning instrument containing the land use table with the threefold classification of developments describes each purpose, either directly in a definitions clause or indirectly by incorporating definitions in other statutory instruments. Each purpose is indicated in the instruments by means of a description of a character which the purpose imparts to land or buildings on land in which it is pursued. This may be done at varying degrees of particularity. In some instances, the purpose is described at a level of generality (such as "industries"), so that the purpose may be pursued in a variety of specific ways (such as the variety of specific types of industries). In other instances, the purpose is described at a level of particularity, connoting a narrow range of choice, such as specifically defined types of shops: Shire of Perth v O'Keefe at 534-535; Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 at [27]. 27 The nature of the use needs to be distinguished from the purpose of the use. Uses of different natures can still be seen to serve the same purpose: Shire of Perth v O'Keefe at 534-535; Warringah Shire Council v Raffles [1979] 2 NSWLR 299 at 301; (1978) 38 LGERA 306 at 308. 28 A use of land can also be for two or more purposes. The purposes may or may not be conflicting. Non conflicting purposes have similarities in character. An example of non conflicting purposes are those which have a genus-species relationship: one purpose is a genus (such as "industries") and the other purpose is a species falling within that genus (a particular kind of industry such as "extractive industry" or "rural industry"). Conflicting purposes are different in character. Where land is used for two conflicting purposes, difficult questions of construction and characterisation can arise when the environmental planning instrument permits one purpose but prohibits the other. It may be necessary to ascertain, having regard to the character, extent and other features of the uses, whether the prohibited purpose can be regarded as subsumed in the permissible purpose, so that it is legitimate to disregard the prohibited purpose and treat the permissible purpose as that for which the land is used, or whether they are independent of each other so that the land is being used for both prohibited and permissible purposes. 29 There are two means by which the environmental planning instrument and land use table for each zone may identify the purpose of development falling in each of the three classifications, namely, identification as either a nominate purpose or an innominate purpose. A nominate purpose is one which the environmental planning instrument expressly nominates by name as being within one of the three classifications. Hence, the land use table for a zone may nominate particular categories of purposes of development as being within the classifications of development that may be carried out without consent, development that may be carried out with consent, or development that is prohibited. 30 An innominate purpose is one which the environmental planning instrument does not nominate by name as being within one of the three classifications, but rather identifies as falling within a particular classification by reason of it not being nominated in other classifications; it is development other than development in the other classifications. Hence, the land use table for a zone may classify as prohibited development, development for a purpose other than a purpose nominated as being able to be carried out without consent or with consent. 31 In answering the question of the characterisation of the purpose of development, it is important to determine how, in relation to the particular environmental planning instrument, the question arises. Frequently, the question is whether development consent is necessary and can be obtained to carry out particular development. If the environmental planning instrument provides that development for a particular purpose may be carried out without development consent or is prohibited, development consent cannot be granted for such development: The Council of the City of Parramatta v Precision Rubber Service Pty Ltd (Unreported, Land and Environment Court of NSW, Pearlman CJ, 10 March 1995) at 6-7 (development that was permissible without consent); Chambers v Maclean Shire Council at [37], [38] (prohibited development). 32 In this situation, the question of characterisation is to be answered by reference to the particular terms of the environmental planning instrument and the land use table for the zone in which the development is to be carried out. The inquiry is whether the development can be characterised as being for a purpose that the instrument identifies as being permissible with consent and not for a purpose that the instrument identifies as being permissible without consent or as being prohibited. The focus of this inquiry is whether the development is within a nominate or innominate purpose, the terms of which are specified in the instrument. It is not to determine, at large, the category of purpose into which the development should be seen as falling and to formulate a description of that category. The latter task may be required when determining whether a development is an existing use under the EPA Act: see C B Investments Pty Ltd v Colo Shire Council at 280. But it is not the task to be undertaken when determining whether development is for a purpose that may be carried out with consent.
Applying the legal tenets set out above, I agree that the council has characterised the purpose of the bund too narrowly when it described it merely as "to keep out motor cycles and 4WD vehicles", without considering that that exclusionary function serves the purpose of use of the Sandy Point Quarry as a quarry. That is, the role of this barricade structure around the perimeter of the quarry is to exclude trespassers from the quarry and to allow the quarry to operate safely and in accordance with its licence conditions.
The characterisation of the purpose of a use of land must be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried out upon it, and not simply in terms of individual activities (Chamwell at [36] citing Royal Agricultural Society at 310). To characterise the purpose of the use of land served by the bund as "the exclusion of motor cyclists and 4WD vehicles" is, in my view, to mistakenly characterise the purpose by reference to individual activities rather than by reference to the activities, transactions and processes carried on across the whole site.
The council misunderstands the distinction between a use of part of an area of land and the purpose of that use, which is the end designed to be served by the use of a particular component. Thus in Chamwell, the land was not properly characterised as being used for the separate purposes of a car park, driveway, access ways and landscaped forecourt, but for the more general overall purpose of retail development (at [31]).
The quarry development, which includes the bund, the quarry face, the works compound, the access road, the internal access roads, the stockpiles, the machinery and equipment areas, the weighbridge and the truck washing area, constitutes one integrated and indivisible activity and is not capable of artificial subdivision into "the bund" and "the rest of the quarry". It would not be appropriate or correct, for example, to characterise the internal access roads or the works compound as for their specific purposes rather than for the overall quarry purpose.
Furthermore, the council erroneously, in my opinion, discounts the deterrent effect that the bund wall ought reasonably be inferred to have in relation to vandals and thieves, especially those in vehicles, given the height and slope of the walls.
As Mr Moona's evidence made tolerably clear, cyclone fences, security guards and lower bunds had been tried in the past and had failed effectively to secure the quarry (T853:15-50; 854:1-17; 856:33-40).
There was no evidence supporting the council's submissions that "obviously, a purpose of deterring or preventing vandalism and theft would have been more effectively and cheaply achieved if, rather than construct the mound/bund, the defendant had employed security guards, as had been done in the past". If anything the evidence was to the contrary.
The council submitted that the bund wall was not necessary for the carrying out of quarrying. However, this is not the test for determining what the bund's purpose is, and necessity is not determinative of whether a building or component of a land use serves a purpose. The bund serves the quarrys' purpose even though other means may have been available to address the security issue, such as signage or security guards.

[85]

Ancillary Use

In respect of the concept of ancillary use, a use will be ancillary if it is use of part of land for a purpose that is subordinate to and subserves another dominant purpose (Foodbarn Pty Limited v Solicitor-General (1975) 32 LGRA 157 at 160-161 per Glass JA and Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 at 409-410 per Meagher JA).
Where part of premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, the former may be disregarded and treated as the dominant purpose for which the whole is being used (Foodbarn at 161 and Abret at [50]-[55] citing Chamwell). However, where the whole premises is used for two or more purposes, none of which subserve the other, it is irrelevant to enquire as to which is the dominant use (Foodbarn at 161 and Abret at [68]). That is, there is no relevant ancillary use where premises are used for two or more purposes, none of which subserves the others, if any one purpose which is independent is not incidental to the other purpose.
The bund is a structure that subserves the quarry and is part of that land use. It is not, contrary to the submission of the council, a wholly separate use of land. And in any event, under the SSLEP 2000, what is required is that the use be ancillary to the primary legal use.
I accept the submission of Benedict that, unlike the circumstances considered by Glass JA in Foodbarn at 161 where "the whole of the premises is used for two or more purposes none of which subserves the others", the present use is ancillary insofar as it is inspired by, and subserves, the larger or dominant purpose, namely, the quarrying activity on Lot 1, Lot 2, or both.
The council referred to a number of cases (it is not necessary to repeat them here) in its submissions to illustrate its contention that (citing the authority of Baulkham Hills v O'Donnell (1990) 69 LGRA 404 at 409-410) a use may be ancillary but also independent. But as Gibbs CJ stated in Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211 (at [6] with whom Murphy, Wilson and Brennan JJ agreed) whether a use is for an independent purpose or subserves a dominant purpose, is a question of fact and degree. Each of the cases referred to by the council turn on their particular facts, and each of the 'quarrying cases' relied upon by the council in this context concerns different issues arising under differently drafted zoning tables and, again, were distinguishable on their facts.

[86]

The Building of the Bund Was Permissible With Consent Under the SSLEP 2000 as Ancillary Development

Turning first to the SSLEP 2000, under that instrument, the land was zoned 1(b) Rural (Future Urban). Item 3 of the zoning table for Zone 1(b) in cl 28 of SSLEP 2000 provides that "Ancillary development not included in Item 2" is permissible with consent (Item 2 lists development permissible without consent, the only category of which is exempt development, so the expression "Ancillary development not included in Item 2", as used in Item 3, means ancillary development which is not exempt development). The term "ancillary development" is defined in cl 5 of SSLEP 2000 to mean "a building, work or use which is used or carried out in conjunction with the primary legal use of a site" for the purpose of extractive industry or a quarry.
Benedict submitted that the erection of the bund wall constituted "ancillary development" because it was ancillary to the primary legal use of the site as a quarry.
For the purposes of cl 5, the "site" is the Sandy Point Quarry, which extends across both Lots 1 and 2. The use of the term "site" requires Lot 1 and Lot 2 to both be considered, because that is the extent of the physical entity in question, that is, the quarry in its entirety and not just a parcel of land defined by its Torrens title.
The term "site" is not defined in the SSLEP but the Macquarie Dictionary (on-line ed) defines the term relevantly as "2. the area on which anything, as a building, is, has been or is to be situated". This would include both Lots 1 and 2.
In the alternative, if "a site" constitutes only a single parcel of land, such as, Lot 1, ancillary development may nevertheless occur beyond that site pursuant to Item 3. This is because development is ancillary within the meaning of the defined term "ancillary development" if it is development on Lot 2 that is carried out in conjunction with the primary legal use of Lot 1 (Lot 1 being "a site" within the meaning of the definition in cl 5).
This is in fact the present case - even on assumption that the only consent for quarrying is the 1967 consent applying to Lot 1. The construction of the perimeter bund on Lot 2 was, as the evidence discloses, carried out in conjunction with the primary legal use of Lot 1 (that is, use as a quarry). It was, as the evidence referred to above indicates, part of the quarry infrastructure and served the quarry on Lot 1 by providing perimeter security, noise attenuation, drainage, and the prevention of unlawful and unsafe access by trespassers, including thieves, vandals, trail bike riders and 4WD vehicles. In other words, irrespective of whether or not the construction of the bund on Lot 2 was independently authorised by the 1967, or some other, consent, it was made permissible with consent on Lot 2 provided the quarry on Lot 1 was a legal use of that land, which the council accepts it was.
If, however, "a site" is considered to be the quarry on both Lots 1 and 2, the "primary legal use" of that site, considered as a site whole across both lots, is quarrying. As the evidence of Ms Edney demonstrated (see her affidavit sworn 29 November 2012), the area of Lot 1 on which it is common ground that the quarry is lawfully carried out is 20.76 ha and the area of Lot 2 is 17.392 ha, adding the area of the unmeasured Crown road to the remainder of the area of Lot 2. Thus around 54% of the entire site by area is lawfully used for quarrying (Lot 1), even if it is accepted that there is no consent for quarrying on Lot 2.
Considered in terms of its function or use, I agree with Benedict that there is no other use apart from quarrying on Lot 1 that could reasonably constitute the primary legal use of both Lots 1 and 2, even if quarrying on Lot 2 is disregarded.
Therefore, the development was permissible with consent under the SSLEP 2000 as ancillary development. The evidence plainly establishes that a sufficient connection exists between the construction of the bund wall and the quarrying activity being carried out in Lot 2, insofar as it provided security, safety, drainage, and so on. Its use was, as Ms Edney conceded, associated with the quarry (T600:1-4). As the evidence of Mr Moona discloses, there had previously existed a bund wall on the site to exclude trespassers but the height of the walls had been inadequate. There is also evidence that a structure such as a bund was required by the licence held by Benedict over the entire site (Lots 1 and 2).
Furthermore, the bund was not built just for the purposes of quarrying on the site as a whole, but was also built for the purposes of quarrying on Lot 1 (which, it is common ground, was a lawful use). The bund was constructed on Lots 1 and 2 in order to enable quarrying to be safely and securely carried out on Lot 1 (as part of the site as a whole) and Lot 2. It was not feasible to place a perimeter bund only on Lot 1 as the quarry floor had, by the time of the bund's construction, extended eastward into Lot 2 (see the evidence of Mr Moona and the aerial photographs demonstrating the expansion eastward of the quarry from Lot 1 to Lot 2). Given that the quarrying on Lot 1 was a lawful use of Lot 1, the erection of the bund wall was "ancillary development" as that term is defined in the SSLEP 2000 and the development was therefore permissible with consent as "a building, work or use which is used or carried out in conjunction with the primary legal use of a site".
"Ancillary development" in the SSLEP 2000 was the subject of a decision of Jagot J in Pearse v Sharpe [2007] NSWLEC 710; (2007) 158 LGERA 21, which held that the term did not constitute ancillary development as a separate purpose, rather it required ancillary development to be development subserving the primary legal use of "the land" (at [20]-[23]): 20 The provisions of the LEP make this clear. First, the definition of ancillary development referred to buildings, works or uses used in conjunction with a primary legal use. This should be understood as an attempt to articulate in the LEP recognition of the principles established in cases such as Foodbarn and O'Donnell. Hence, the purpose of ancillary development would generally be the purpose of the "primary legal use". Secondly, examination of the development control tables reinforces this understanding. "Ancillary development" did not appear in isolation in any of the tables. When it appeared it was qualified by words referring to development included in another item of the table. Hence, in zone 2(e2) the development permissible with consent was "ancillary development not included in item 2" not ancillary development per se. This implicitly recognised that ancillary development is not a separate development purpose. Moreover, ancillary development, when it appeared in a table, was not described by reference to a purpose of development. Again, take zone 2(e2) as an example. There were five classes of development set out in that zone as permissible with consent grouped as "ancillary development not included in item 2", "development for the purpose of …", "demolition not included in item 2", "development below the foreshore building line allowed by clause 20" and "subdivision". Each of the five classes began with a capital letter, ended with a full stop and had a space dividing it from the next class. The second class only concerned development for purposes. These nominated purposes did not begin with a capital letter, ended with a comma not a full stop and did not have a space dividing each purpose. In other words, the table treated ancillary development as a class of regulated activity (that is, specified development for the purposes of s 76A(1) of the EPA Act) but not as a purpose of development. The 7(a) zone adopted a similar structure but had only three classes, the first of which concerned development for nominated purposes, with the others being "demolition not included in item 2" and "subdivision". 21 The LEP thus ensured that ancillary development in and of itself required consent in certain zones. The LEP did not, however, constitute ancillary development as a separate development purpose. To the contrary, it took care not to do so as indicated above. 22 Further, if it were otherwise, the LEP would have derogated from the incorporated provisions. The use of the land for the purpose of a dwelling house is an existing use. Accordingly, and consistent with the incorporated provisions, each and every part of the land may be the subject of an application for consent to enlarge, expand, and intensify that existing use. On the applicants' argument, the LEP would have made it necessary to test every activity the subject of such an application for consent to determine whether the purpose was "dwelling house" or "ancillary development". If the former, no change of use would be involved. If the latter, a change of use would be involved and be prohibited by the combined operation of cl 41(1)(d) of the incorporated provisions and the table to the 7(a) zone. For example, on the applicants' approach, the Council could have confined the use of the cottage to a bedroom or kitchen (the applicants having correctly accepted that a single dwelling and a single dwelling house may involve more than a single structure). This would not involve "ancillary development" (and thus any change of use) because a bedroom or kitchen is part and parcel of the "primary legal use" of dwelling house. However, the Council could not confine the use of the cottage to an ancillary outbuilding (such as a garage, boat shed or storage area) because those activities are ancillary development and thus involve a change of use to a use prohibited in zone 7(a). These surprising consequences are avoided by recognising that an attempt by an environmental planning instrument to constitute activities, transactions and processes ordinarily associated with use for the purpose of dwelling house as a different purpose altogether must confront s 108(3) of the EPA Act. The LEP in this case, properly construed, does not make that attempt. Nevertheless, as the respondents submitted, s 108(3) of the EPA Act is a further reason to reject the applicants' arguments. 23 In this case, the use of the land for the purpose of a dwelling house was an existing use. The owners sought consent to erect a new dwelling house and to retain the cottage for uses ancillary to that dwelling. The consent granted by the Council allowed the new dwelling house to be erected but confined the use of the cottage to activities, transactions and processes ancillary to the dwelling (presumably, so that the purpose of the use could not be dual occupancy housing). This confining of the range of activities able to be carried out in the cottage did not authorise any change of the existing use. The cottage was used for the purpose of a dwelling house. It will continue to be used for the purpose of a dwelling house, albeit not for the full complement of activities that such a use ordinarily entails. The more general purpose of "dwelling house", in this case, embraced the more restricted activities associated with use of the cottage as an ancillary outbuilding. The applicants' first ground of challenge must be rejected.
In my opinion, the evidence demonstrates beyond reasonable doubt that the bund is subservient to the purpose of quarrying.
Therefore, given the evidence adduced in these proceedings, the council has not excluded the rational, and most likely, hypothesis that the bund was "a building, work or use which is used or carried out in conjunction with the primary legal use of a site", and hence, ancillary development under cl 28 of the SSLEP 2000.
Turning to SREP 9, the council submitted that there were two reasons why the bund was not ancillary to a use of land for the purpose of an extractive industry which was lawful under SREP 9. First, because SREP 9 was an instrument under the EPAA and "consent" in cl 7(2) of the SREP 9 meant development consent under Pt 4 of that Act. Therefore, the land was not being lawfully used under SREP 9 for the purpose of an extractive industry because there was no development consent granted by the council, as required by cl 7(2), for the use of the land for that purpose. Second, even if there were such consent, use of the land for the construction of the bund was not ancillary to, "in the sense of dependent upon", the use of the land for the purpose of extractive industry.
But the absence of any development consent to carry out extractive industry on Lot 2 is not determinative of whether the bund was ancillary to the primary legal use of the site, because the lawfulness of quarrying on Lot 1 pursuant to the 1967 consent is sufficient (the bund is around the perimeter of the whole of the site and protects Lot 1 and Lot 2). In any event, as discussed in detail below, the council has not discharged its onus of proving beyond reasonable doubt that no consent was granted by the council to carry out an extractive industry on Lot 2. Furthermore, as has been noted above, 'dependency' is not a recognised test for identifying an ancillary use.
As stated above, the council has adduced no expert, and no direct, evidence as to the purpose of the bund. This failure has persisted despite Mr Ryan's emails dated 9 May 2012, describing the bund as a "bund/embankment around the perimeter of the site", and on 18 November 2015, describing the bund as a "bund/embankment/barricade". The failure of the council to adduce any expert or direct evidence as to the structure's purpose has persisted despite the council's environmental expert, Mr Drinnan, being requested to test the soil of the bund to ascertain whether the material from which the bund was constructed came within the EPA's waste exemption "continuous process ([recovered] fines exemption or raw mulch exemption)".
Accordingly, I find beyond reasonable doubt that the bund was built for the purpose of the quarry and subserves the quarry because it provides or contributes to, amongst other things, securing the quarry.
Finally, it is noted that the concept of "ancillary development" in the SSLEP 2000 and SREP 9 would also include the clearing of vegetation and trees for the construction of the bund, a proposition ultimately accepted by the council. (Taggett v The Council of the Shire of Tweed [1993] NSWCA 260 and Dorrestijn v South Australian Planning Commission (1985) 59 ALJR 105 at 108 and 110).

[88]

The Bund Wall Was Not Built to Dispose of Waste

The council asserted that the bund wall was constructed to dispose of waste brought onto the land from elsewhere, and therefore, by dint of application of cl 19(1), SREP 9 did not apply.
In response, Benedict argued that cl 19(1) had no relevant application because the development could not be properly characterised as "the use of land for the disposal of waste brought on to the land from other land". In addition, the imported material used to build the bund wall, was not "waste" within the meaning of cl 19 of SREP 9.
The word "waste" contained in cl 19(1) is not defined in SREP 9. It does not, as the council correctly submitted, borrow its meaning from the term "waste" contained in the POEOA or the regulations made under it. As the council noted, that legislation contains a dedicated regime and concomitant provisions specifically regulating the transport, disposal and storage of waste.
Rather, as the parties agreed, the term "waste" bears its ordinary meaning having regard to its context and the purpose of the instrument in which the word is located. According to the Macquarie Dictionary (on-line ed), the word "waste" means "unwanted and unused material, anything left over or superfluous, excess material, by-product".
The council submitted that the ordinary meaning of "to dispose of waste" in cl 19(1) of SREP 9 is to get rid of it (Environment Protection Authority v N (1992) 26 NSWLR 352 at 355E-F). It relied, in particular, upon the dicta of Basten JA in Environment Protection Authority v Terrace Earthmoving Pty Ltd [2013] NSWCCA 180; (2013) 84 NSWLR 679) concerning the meaning of the word "waste" in the context of criminalising the transportation of waste in certain circumstances under the POEOA. In that case his Honour opined that (at [26]): 26 In ordinary parlance, waste refers to unwanted by-products of a process and to an object (or substance) which the owner had, but no longer has, a use for and discards or abandons. In respect of the first category, being unwanted by-products of a process, the question is not whether they are "capable" of being used for some other purpose, nor whether there is a "market" for such material. Similarly, in relation to items for which the owner had, but no longer has, a use, the question is not whether some other person might conceivably want the item. Thus, in ordinary parlance, there is a clear distinction between a used car which is provided as a trade-in on a new vehicle or which is advertised for sale, and a vehicle which is abandoned by the owner. The last example, in contradistinction to the first two, is aptly described as "waste", even though a salvage business might be able to strip the vehicle for parts or sell it as scrap metal.
The council relied on the fact that: 1. commencing on about 8 September 2010 and continuing into mid 2012, substantial quantities (approximately 210,910 tonnes) of fill material were transported from the Benedict Recyclings' Chipping Norton depot to Benedict's quarry and used to construct the bund wall; 2. Benedict Recycling was a company which specialised in "resource recovery for the waste industry". Its promotional materials showed that the waste it "recovered" came from the construction and demolition industries, as well as "residue waste that would normally go to landfill." Waste accepted included "dry solid mixed commercial wastes, all recyclable materials, residue wastes and segregated clean loads (brick, concrete, timber, VENM, paper, cardboard, plastics)". Benedict Recycling then processed this waste by "recycling" it; 3. the material used for the construction of the mound/bund wall, described on the Benedict Recycling weighbridge dockets (tax invoices) was labeled as "recycled fill" and was a by-product of the waste recycling process conducted by Benedict Recycling at its Chipping Norton premises; and 4. insofar as the mound was covered in mulch, this material contained bits of shaped or milled and blue painted wood. Bits of such wood were observed by Ms Harries during her inspection of the site on 8 May 2012 (see her affidavit dated 4 December 2012). Mr Drinnan gave unchallenged evidence (see his affidavit sworn 7 September 2012, attaching his report dated July 2012) that during his inspection on 17 April 2012, he noticed that the mulch material appeared to include "manufactured timber products such as palettes" and that the mulch "contained painted surfaces and nails".
Benedict submitted that the material used to construct the bund wall comprised recovered fines from Benedict Recycling's Chipping Norton facility with a layer of mulch on top. The best evidence of the appearance of the material, prior to the placement of the mulch over the top of it, were the photographs taken by Ms Edney when she attended the site on 22 June 2011 (attached to her affidavit of 29 November 2012). Those photographs showed a dark uniform soil-like material, shaped and compacted to form the bund.
Consistent with what is shown in those photographs, Mr Drinnan made this note when he saw the wall and its constituent material on 17 April 2012 during a site inspection (see his affidavit sworn 4 July 2013): - Constructed of imported soil uniform dark grey / black in appearance similar to top soil - this mulched to depth of approx. 80 - 150 mm deep with combination of mulched removed vegetation from site and other timber such as pallets
On that occasion, Benedict told the council that the material used to construct the bund was recovered materials obtained from Benedict Recycling's Chipping Norton facility, which had been tested, and that the EPA had the test results. This was recorded by Ms Harries in a memorandum authored by her on 23 April 2012.
It was repeated in a letter to the council from Benedict dated 19 July 2012, where the material was described as "recovered fines".
The council submitted that Benedict's description of the material used to construct the mound as "recovered fines" in that letter should be accorded limited weight because it was made in circumstances where Benedict knew it was under investigation and the statement was therefore self-serving.
The letter is Benedict's reply to the second statutory notice issued by the council. It consisted of a covering letter and a bundle of Sydney Environmental and Soil Laboratory ("SESL") certificates. As Benedict submitted, the letter is a significant document, both in relation to the purpose of the bund wall and in relation to the council's allegation that the material used to construct it constitutes waste.
The council issued two statutory notices to Benedict requiring information and records. Benedict responded to each. The first notice was issued by Ms Harries under the instruction of Ms Vanessa Bailey, the council's Development Compliance Supervisor, on 14 April 2012. In cross examination, Ms Harries agreed that she had issued this notice under both Ch 7 of the POEOA and Div 1A of Part 6 of the EPAA. Under the first notice she asked for certain information in response to which she received replies from Benedict: Q 2.3 What is the purpose of the fill which has been stockpiled around the perimeter of the site along the southern, eastern and northern boundaries of the premises. A. The fill and other materials have been used to construct a bund at a significant cost to Benedict around the quarry for purposes including a security barrier and control, noise attenuation, visual control barrier and to assist in controlling storm water flows and runoff. Q 2.8 Where did the materials for the works originate from? A. Benedict Recycling premises EPL 12794 Riverside Road, Chipping Norton New South Wales Q 2.10 What is the classification of the material used for the works? A The materials used for the works meet the Protection of the Environment Operations Waste Regulation 2005 general exemption under Part 6, clause 51 of 51A being the 'continuous process' for public fines exemption September 2010 and the raw mulch exemption 2008.
The response to the first notice was admitted into evidence but not as to the truth of its contents.
The second statutory notice issued to Benedict was a follow-up notice issued by Ms Bailey to Benedict which she decided to issue after receiving Benedict's replies to the first notice, especially in respect of its replies to the questions extracted above.
In the second notice, Ms Bailey had indicated that, among other things, the council was investigating whether waste was being deposited on the site unlawfully. Ms Bailey recited the question 2.10 from the first notice issued by Ms Harries and recited the answer to that question. Further to that recital, Ms Bailey required Benedict to provide records of testing results in accordance with the requirements of the general exemption.
The response by Benedict was contained in the letter dated 19 July 2012. This response was admitted into evidence without any limitation. Accordingly, Benedict submitted, the Court could accord considerable weight to the answers given in that document because in giving its response Benedict was under a statutory obligation to tell the truth on pain of serious criminal punishment (the notices were issued under both Ch 7 of the POEOA and Div 1A of Part 6 of the EPAA. For example, under s 211 (2) of the POEOA, Benedict faced a penalty of up to $1,000,000 if it knowingly provided any information which was false or misleading in a material particular).
The covering letter from Benedict dated 19 July 2012 restated its initial response, but included the SESL test results to substantiate its previous assertion that the materials fell within the recovered fines waste exemption.
The bundle of SESL certificates attached to that letter constituted documents entitled "NSW EPA the "Continuous Process" Recovered Fines Exemption 2010". These certificates indicate that the material met the criteria of that general exemption.
The SESL certificates, each signed and dated, span a period from 31 August 2010 to 18 May 2012, that is, before there was any suggestion of any investigation by the Council into the bund wall.
I agree with Benedict that this negates any inference the council asked the Court to draw that the response contained in the 19 July 2012 letter was tailored and self-serving.
More problematic is the fact that not only did Ms Bailey cause the two statutory notices to be issued to Benedict, on 28 June 2012 she sent an email to Mr Drinnan in the following terms: Hi Ian After compiling the Brief of Evidence for the Land and Environment Court prosecution I think we have bound Benedicts fairly tightly. There is one area however I wanted to cover off entirely. In Benedicts response to our Notice to Provide Information they assert that the material used for the works is as follows: The materials used for the works meet the Protection of the Environment Operations (Waste) Regulation 2005 - general Exemption under Part 6, Clause 51 and 51A being the "continuous process" for Public Fines Exemption, September 2010 and the Raw Mulch Exemption 2008 I was hoping that Council could conduct its own soil testing to refute this assertion. Is this able to be done inhouse? Alternatively, can you organise an external consultant to do this?
At no point has the council adduced any evidence whatsoever of any testing or analysis or any evidence at all to support the proposition that the material is waste.
The clean nature of the fill was reinforced by the Court's inspection of the bund, which revealed that it consisted of soil overlain by woodchips or mulch which formed a thin layer on top. These observations were consistent with photographs taken by Ms Harries and Ms Edney of the bund during its construction.
Drawing support from the observations made by Basten JA in Terrace Earthmoving (quoted above) the council inferred that the material was waste by reason of the fact that it came from the Benedict Recycling facility and was transported to the Sandy Point Quarry to be used in the bund. It argued that the material used for the construction of the bund wall, described on the Benedict Recycling weighbridge dockets as "recycled fill", was an unwanted by-product of the waste recycling process conducted by Benedict Recycling at its Chipping Norton premises. Its owner, Benedict Recycling, no longer wanted that substance and had discarded it and thus it was "waste" in the ordinary sense of the word.
In my opinion, however, no such inference can reasonably be drawn, to the requisite standard, on the evidence before the Court. In my view, as explained below, the correct inference to be drawn is that the material was neither "waste", nor was it used at the Benedict quarry "for the disposal of waste" within the meaning of cl 19(1) of SREP 9.
First, in addition to the absence of any testing by the council as to composition of the material used to form the bund wall, it may be equally inferred that the material from the recycling depot was used because it had the appropriate properties to form the bund wall. There is no evidence, for example, that it was not fit for its purpose. Rather, as various photographs taken by various council officers demonstrate (see, for example, those taken by Ms Edney on 29 June 2011), the material was more than suitable for the bund's construction.
Second, there is no evidence that the material was in any way unwanted, surplus or discarded either in the hands of Benedict Recyclers or Benedict. Rather, at not insignificant cost to Benedict (see the letter dated 19 July 2012), it was specifically wanted, sourced, and used for the construction of the bund wall.
Third, as the council has stated, the purpose of a structure can be inferred from its function (T1062:14). There is no cogent evidence that the function of the bund was waste disposal. If waste disposal was the objective of the erection of the bund, a mound, stockpile or carpet of waste fill would have been more rational, and not a precisely designed and located perimeter bund built for security and safety purposes.
Fourth, the observations made by Basten JA in Terrace Earthmoving were just those. In that case, the question the Court of Criminal Appeal was required to address was the meaning of "waste" as that term is defined in the POEOA. That is not the issue here. With great respect, Basten JA was construing the term "waste" in a particular statutory context. His Honour was not, it may be further respectfully noted, purporting to define for all purposes the ordinary notion of "waste".
As was stated in Shannongrove Pty Ltd v Environment Protection Authority [2013] NSWCCA 179; (2013) 84 NSWLR 668 at [29] per Basten ACJ, emphasis added): 29 … Whilst they might cease to be waste at some point if reprocessed, reused or recycled, the fact that such a course may be undertaken in the future by another person, would not prevent the substance being waste in the hands of the owner and hence at the point at which transportation commenced.
Both Shannongrove and Terrace Earthmoving were applied by this Court in Director-General, Department of Planning and Infrastructure v Glass Recovery Services Pty Limited [2015] NSWLEC 49; (2015) LGERA 397 (at [77]-[84]). In that case Pain J noted that the cases "considered the view of the owner of the waste". It was held that the buying of secondhand goods (used glass) did not constitute "waste".
In the present case, the material from Benedict Recycling, as owner of the material, was not an unwanted by-product of any process at all. It was a wanted resource material derived by a process of resource recovery from an unwanted product - inert and demolition waste. True it was that the material was received as waste at Benedict Recycling's Chipping Norton facility, but once processed, it ceased to have this characteristic from the perspective of the owner, Benedict Recycling. The process involved recovering a wanted resource from waste, or 'resource recovery'. This was not an unwanted by-product. It was a wanted product. There was no evidence whatsoever that considered from the view of Benedict Recycling, the recovered fines material was unwanted, surplus or otherwise required disposal.
Returning to the common usage of the term "waste", the material used to construct the bund was not "an object (or substance) which the owner had, but no longer has, a use for and discards or abandons". There is no evidence at all that this material was discarded or abandoned by either Benedict Recycling, or Benedict, and no such inference can be drawn. To the contrary, Benedict, a related company to Benedict Recycling, sourced and used a resource which Benedict Recycling had recovered and which it supplied as part of its business.
Fifth, and in any event, the use of the imported materials to build the bund wall cannot be properly characterised as "the use of land for the disposal of waste". As stated above, in this context "disposal of waste" may be construed as "getting rid of waste" (N at 335 and Environment Protection Authority v Anning (1998) 100 LGERA 354 at 26 per Lloyd J). The land at the quarry was not used by Benedict to "get rid of" the recovered recycled material. On the contrary, it used the material legitimately to build the bund wall on the land, for primarily security and safety purposes. This was, as Benedict submitted, the very antithesis of discarding or 'getting rid of it'.
The council was required to demonstrate a nexus ("the use of the land for the disposal of waste", emphasis added) between the function of constructing the bund wall and the purpose of disposing any waste. There was no evidence put before the Court that could be safely relied upon to prove any such connection beyond reasonable doubt.
I therefore do not find that the council has discharged its burden of proving beyond reasonable doubt that the use of the recovered fines to build the perimeter bund wall at the quarry constituted "the use of land for the disposal of waste" within the meaning of cl 19 of SREP 9.
As a consequence, SREP 9 renders the development permissible with consent.

[89]

Permissibility Under SREP 9 Prevails Over Prohibition in SSLEP 2000

To the extent that there is any potential inconsistency between cl 7(2) of SREP 9 - which provides that extractive industry is permissible with consent - and cl 28 of the SSLEP 2000 - which according to the council prohibits both quarrying and the construction of the bund on Lot 2 because neither was specified under Item 2 or 3 of cl 28 (ignoring for present purposes whether the construction of the bund is ancillary development) - the council argued that SREP 9 did not, upon its proper construction, displace the operation of the SSLEP 2000 (citing Hastings Point Progress Association Inc v Tweed Shire Council [2009] NSWCA 285; (2009) 168 LGERA 99 at [65]-[67]). Moreover, s 36 of the EPAA did not apply because although SREP 9 applied to Lot 2, the construction of the bund wall on Lot 2 was not "development for the purpose of an extractive industry" within the meaning of cl 7(2) of SREP 9.
The two instruments should, if possible, be construed in a manner that promotes harmony between the two instruments and avoids conflict (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 304-305, Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [68]-[70]
Having said this, in my opinion, SREP 9 prevails over SSLEP 2000 to the extent of any inconsistency by reason of the operation of cl 4(1) of SREP 9 and s 36(1)(a) of the EPAA (particularly when the latter provision is read together with cl 120 of Sch 6 of that Act, which deems SREP 9 to be a State Environmental Planning Policy for the purposes of the Act). There is no interpretative warrant for concluding otherwise.
Even if cl 19(1) of SREP 9 were, however, applicable (contrary to my finding above) and the SSLEP 2000 does not (for the reasons given above) prohibit the construction of the bund, the effect under SREP 9 is to not authorise the development insofar as it is not permissible with consent. It does not operate to prohibit the development. There is no objective intention, express or implied, to displace the operation of the SSLEP 2000, including cl 28 of that instrument. On this basis cl 19(1) of SREP 9 is not inconsistent with the SSLEP 2000 or its capacity to render ancillary development permissible with consent.
An interesting question of construction exists if (contrary to my findings) cl 19(1) of SREP 9 were to apply, limiting in this instance what was authorised by the SREP, and if (again contrary to the findings above) the SSLEP 2000 prohibited the construction of the bund because it was not ancillary development. In particular, it gives rise to the issue of whether the prohibition in the SSLEP 2000 would prevail over SREP 9 on the basis that there was no inconsistency between it and SREP 9, the latter instrument not prohibiting the development. However, resolution of this matter is not required in light of the conclusions that I have arrived at and is therefore not dealt with in these reasons.

[91]

The Council Was Not the Only Consent Authority

As the legislative history below demonstrates, the council wrongly assumed that it was the consent authority in respect of development on the land comprising Lots 1 and 2 at all material times.
The Local Government (Town and Country Planning) Amendment Act 1945 ("LGA Amendment Act 1945") inserted Pt XXIIA into the Local Government Act 1919 ("LGA 1919"). Part XXIIA of the LGA 1919 provided for the establishment of the Cumberland County Council.
The Cumberland County Council was required to prepare a prescribed planning scheme (s 342AB(1) of the LGA 1919), namely, CCPSO.
The Cumberland County Council was established by the operation of ss 342AB(3) and 342AA(2) of the LGA 1919. Section 342AB(3) of that Act provided that all powers conferred under Div 7 of Pt XXIIA, which were to be exercised in accordance with a planning scheme made in accordance with Div 8, were to commence following the first general election of the Cumberland County Council, but only after the outcome of the election was published in the Gazette as provided for in s 342AA(2).
Section 342N(1) of the LGA 1919 provided that: The responsible authority specified in a prescribed scheme shall have and may exercise and discharge all the powers, authorities, duties and functions conferred and imposed on the responsible authority by the prescribed scheme.
On 12 July 1946 the relevant notification in the Gazette (No 75) of the election was made.
Between the establishment of the Cumberland County Council, and the completion of the CCPSO, that is, between 12 July 1946 and 26 June 1951, Ordinance 105 was the operative planning scheme applicable to the site.
The CCPSO was established by Pt II of the Local Government (Amendment) Act 1951 which was given assent on 27 June 1951. Section 2(1) provided that "the provisions set forth in the Schedule to this Act shall... be the scheme required by Division 8 of the said Part to be prepared for the County of Cumberland." This effectively enacted the CCPSO, with the County of Cumberland Council the responsible authority with all the powers, functions and duties imposed on it by the scheme (see s 342N above).
As originally enacted, cls 4, 5 and 6 of the CCPSO provided as follows: 4. This Ordinance applies to all land within the Cumberland County District. 5. In respect of the provisions of this Ordinance relating to - (a) Part II - Reservation of and Restrictions on Use of Certain Land; (b) Green Belt Zone; (c) Special Uses Zone; (d) the granting of any consent required by or under this Ordinance to the erection or use of buildings or the carrying out of works on lands of the Crown or on the lands of any public utility undertaking or the use of such lands; (e) places of scientific or historic interest; (f) controlled access roads and restriction of ribbon development, the Cumberland County Council shall be the responsible authority and shall be charged with the functions of carrying into effect and enforcing such provisions. 6. (1) In respect of the provisions of this Ordinance other than those enumerated in clause 5 the council shall be the responsible authority and shall be charged with the functions of carrying into effect and enforcing the provisions of this Ordinance other than those enumerated in clause 5. (2) The powers, authorities, duties and functions conferred and imposed on the responsible authority by this clause shall apply in respect of each area to the council of the area.
The CCPSO zoned the land comprising Lots 1 and 2 "Special Uses", and permitted any development to be carried out on it with consent (see cl 26 and the Table, and see also cl 29).
As the site was zoned "Special Uses Area", cl 26 of the CCPSO provided that development for any purpose, including, on any view, extractive industry, was permissible with the consent of the relevant authority, viz, Cumberland County Council.
Prior to 1962, the carrying out of work on the land, which was Crown land, was permitted with the consent of the County of Cumberland, as the consent authority, pursuant to clause 5(d) of the CCPSO in force at the time. Clause 6 of the CCPSO provided that it was only functions other than those enumerated in cl 5 in respect of which the local council (that is to say, the council) was the responsible, or consent, authority.
Clause 9 of the Local Government (Town and Country Planning) Amendment Act 1962 ("LGA Amendment Act 1962") amended cl 5 of the CCPSO, and omitted from the jurisdiction of the Cumberland County Council the power to grant development consent over land zoned 'Special Uses Zone' or Crown lands: 9. (1) The County of Cumberland Planning Scheme Ordinance as prescribed by the Local Government (Amendment) Act, 1951, and as amended by the County of Cumberland Planning Scheme (Amendment No. 1) Ordinance proclaimed in Gazette No. 87 of the second day of August, one thousand nine hundred and fifty-seven, and by the Local Government (Amendment) Act, 1959, is amended - (a) by omitting clauses five and six and by inserting in lieu thereof the following clauses : - 5. In respect of the provisions of this Ordinance relating to - (a) places of scientific or historic interest; (b) certification of plans showing land as being land to which Part II applies; (c) controlled access roads; (d) application for the fixing of an area for the purposes of the definition of "Country dwelling" in clause 24 of this Ordinance in its application to land zoned as Green Belt Zone; (e) any matters in respect of which the Cumberland County Council is expressly charged with any power, authority, duty or function; and (f) any power, authority, duty or function conferred or imposed on the responsible authority, other than those enumerated in paragraphs (a) to (e) both inclusive of this clause or in clause 6, the Cumberland County Council shall be the responsible authority and shall be charged with the functions of carrying into effect and enforcing such provisions.
As a consequence the Cumberland County Council ceased to be the consent authority for the site on 1 July 1962 (Gazette (No 61) proclaimed that the LGA Amendment Act 1962 came into effect on 1 July 1962). Subsequently, by reason of ss 26 and 78 of the State Planning Authority Act 1963, the County of Cumberland Council was dissolved and the CCPSO was repealed.
Clause 7 of Sch 2 of the Miscellaneous Acts (Repeal and Amendment) Act 1979 continued past consents granted under the LGA 1919 and deemed them to be development consents granted under the EPAA.
The use of quarrying on the site was prohibited under the SSLEP 1992 and SSLEP 1993 under the 1(b) Rural (Future Urban) zoning, but this prohibition was subject to the operation of s 109B of the EPAA, which preserved the effect of any existing consents (see s 76C of the EPAA).

[92]

Ministerial Authority to Grant Development Consent over Lots 1 and 2 Under Ordinance 105 Between 12 July 1946 and 26 June 1951

Division 6 of LGA 1919 dealt with "Interim development". Under s 342T(1) of that Act the following terms were defined: "Development" in relation to any land includes the erection of any building, and the carrying out of any work, and any use of the land or building or work thereon for a purpose which is different from the purpose for which the land or building or work was last being used "Interim development" means development of land to which a scheme applies between the date upon which a resolution of the council or two or more councils acting together to prepare a scheme has taken effect or the date upon which notice of the fact that the Minister has directed the council or two or more councils to act together to prepare a scheme was published in the Gazette and the date of the coming into operation of the scheme
Given the broad definition of "development" under the LGA 1919 the phrase "includes the carrying out of any work" (emphasis added) should, in my opinion, be interpreted as including extractive industry.
In the definition of "Interim development", the reference to "a scheme" was a reference to a scheme such as the CCPSO. From 12 July 1946 until the CCPSO came into force in June 1951, however, all development on land in the County of Cumberland was designated "Interim development".
Section 342V of the LGA 1919 conferred upon both the council and the relevant Minister the power to grant development consent. Section 342V relevantly provided: (1) Subject to the provision of any such ordinance the council may, where an interim development application is made, grant the application unconditionally or subject to such conditions as it may think proper to impose or refuse to grant such an application... … (3)(a) If it appears to the Minister that it is expedient, having regard to considerations affecting the public interest, whether generally or in the locality concerned, that any interim development application, or any class or description of such applications, should be referred to him for decision, he may give directions to the council requiring that application, or applications of that class or description, to be so referred, and any decision of the Minister on an application so referred to him shall be deemed to be the decision of the council…
Ordinance 105 was created on 9 November 1945 (prior to the proclamation of the LGA Amendment Act 1945) (see the publication in the Gazette (No 120)). The power granted under s 342V(1) was "subject to the provision of any such ordinance", or put another way, subject to Ordinance 105.
CIause 3 of Ordinance 105 defined "Interim development authority" as "the council of the Municipality or Shire in which the land proposed to be developed is situated and includes the Minister in any case where he is authorised by or under the Act to permit interim development". During the period between 12 July 1946 and 26 June 1951 (when Ordinance 105 was operative), the consent authorities were the council and the Minister.
Ordinance 105 operated in the following way: 1. cl 4 permitted development without consent (except as provided by cl 5): 4. (1) Except as provided in clause 5 of this Ordinance interim development of the following classes may be carried out… None of the classes identified in cl 4 applied to extractive industry; 1. cl 5 permitted development with consent: Subject to this clause the provisions of subclause (1) of clause 4 of this ordinance shall not apply in the following circumstances… Nothing identified in cl 5 applied to extractive industry; and 1. cl 6, was a residual category, and permitted development only with the permission of the Interim Development Authority: 6. (1) Development which is not permitted by this Ordinance shall not be carried out except with the permission of the Interim Development Authority.
Because neither cls 4 nor 5 of Ordinance 105 permitted extractive industry, cl 6 therefore applied, making the development permissible with consent from the Interim Development Authority.
The council did not search for Ministerial consents, or any related instrumentation or documents that conferred power on the Minister to grant interim development consent, during the period between 12 July 1946 and 26 June 1951. It was, for the reasons given above, necessary to do so.
Further, it should be noted that there were no relevant lapsing provisions in Ordinance 105, and therefore, any consents granted by the Minister remained valid upon Ordinance 105 ceasing to operate.

[93]

The Authority of the Cumberland County Council to Grant Development Consent over the Site Under the CCPSO Between 27 June 1951 and 1 July 1962

As discussed above, the CCPSO applied to the land because from its inception, pursuant to cl 5(c), both Lot 1 and Lot 2 were zoned "Special Uses Zone", and because both lots 1 and 2 were "land of the Crown" pursuant to cl 5(d).
It will be recalled that cl 6(1) provided that "in respect of the provisions of this Ordinance other than those enumerated in clause 5 the council shall be the responsible authority". The reference to "council" in cl 6 can be contrasted to the capitalised "Cumberland County Council" referred to in cl 5. It can therefore readily be inferred that the "council" referred to in cl 6 is a reference to the relevant local council, and not the Cumberland County Council.
Section 342N(1) of the LGA 1919, together with cl 5 of the CCPSO, therefore established the Cumberland County Council as the relevant consent authority over Lots 1 and 2 between 27 June 1951 and 1 July 1962.
The council failed to search for any development consents granted by the Cumberland County Council during the period between 27 June 1951 and 1 July 1962. It was incumbent upon the council to negative this possibility.
Further, because there were no relevant lapsing provisions in CCPSO, any consent granted by the Cumberland County Council during this period remained valid following the CCPSO ceasing to operate after July 1962.
In addition to searching the records of the Cumberland County Council, it was necessary for any of the Cumberland County Council's records that were transferred to other State bodies to be searched by the council.
Pursuant to s 26(e) of the State Planning Authority Act 1963, upon the dissolution of the Cumberland County Council in 1963, all records of consents were transferred from the Cumberland County Council to the State Planning Authority Section: all real and personal property including all books, maps, plans and documents and all right and interest therein and all management and control of any land or thing which, immediately before the appointed day, were vested in or belonged to The Cumberland County Council or the Northumberland County Council shall vest in and belong to the Authority
All consents, and records of consents, were subsequently transferred from the State Planning Authority to the Planning and Environment Commission in 1974 under the New South Wales Planning and Environment Commission Act 1974, which simultaneously dissolved the State Planning Authority (s 18(1)).
Section 18(2)(a) provided that: all real and personal property and all right and interest therein and all management and control thereof that, immediately before that day, was vested in or belonged to the Authority shall vest in and belong to the Commission
All consents, and records of consents, were then transferred from the Planning and Environment Commission to the "corporation" (that is, the Ministerial Corporation as defined in the EPAA, or in other words the Department of Planning) in 1979 by dint to the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979.
Clause 19(1)(a) of Sch 3 of that Act provided that: all real and personal property and all right and interest therein and all management and control thereof that, immediately before that day, was vested in or belonged to the Commission shall vest in and belong to the corporation.
Therefore, to properly discharge its onus of proving that no relevant development consent had been granted, the council was required to search the records of the State bodies referred to above. This was not done.

[94]

The Search Evidence of the Council

According to the council, a decision to grant consent for the use of the land for quarrying could have been made either by the council itself, by a committee pursuant to delegated authority, or by a council officer pursuant to delegated authority.
The council called detailed evidence of council's methods of recording, and places in which it recorded, development consents, and of extensive searches which it had conducted of the minutes of council and its relevant committees, as well as other files and council databases.
The principal search evidence relied upon by the council was contained in the affidavits of Ms Whittingstall (sworn 22 May and 4 June 2015). Ms Whittingstall has been employed by the council since January 2000, and has held the position of Executive Officer Privacy and Access to Information (previously Executive Officer Freedom of Information) within the Corporate Services Division of council for over eight years.
There can be no doubt that Ms Whittingstall has a considerable amount of experience in searching council's records for development consents, having conducted those searches daily for 15 years, including the search conducted under the then Freedom of Information Act for development consents relating to Lot 456.
Records of council's development consents are retained either in the minutes of the meeting in which approval for development was granted, and/or in or associated with files. Ms Whittingstall gave evidence of the different systems for recording development consent that have evolved in council from the 1950s (beginning with physical registers and records) through to the electronic data records management system presently in place today (see generally her affidavit sworn 22 May 2015).
Prior to electronic records, the council retained physical registers and records, including index cards (1950s-1980s), building property register books (1960s-1990s), register of building application forms (1949-1998) and folders and boxes with copies of development consents (1988-2002). From 1995, a system for creating and keeping electronic records of files was introduced, namely, "RECFIND", in operation from 1995 to 2014.
Prior to 2002, development consents were retained on the individual development application (hard copy or paper) files and details of those files are recorded in RECFIND. It records all files created from 1995 onwards, as well as details of historical files in existence prior to RECFIND. In 2002, an electronic document management system called "DMS" was implemented to store centrally all records of council, including development consents and correspondence relating to development applications. In March 2015, a new electronic records management system called "OBJECTIVE" was implemented and all development consents were migrated into OBJECTIVE from DMS.
From Ms Whittingstall's written evidence and from council files DC 975/WAL and HB 975/WAL, the council submitted that it was known that: 1. the number for Heathcote Road (the location of Sandy Point Quarry) in the council's road numbering system was "975"; 2. its hard copy development control file DC 975/WAL was opened when Mr A H Walker applied in around 1967 for consent to quarry on what is now Lot 1; 3. a copy of approval 900/67 (the 1967 consent) was on file HB 975/WAL (not DC 975/WAL); 4. approval 900/67 was granted for the use of what is now Lot 1 for the "extraction of rock ballast and filling" - and the file reference number for that approval was DC 975/WAL; 5. file DC 975/WAL contained copies of three consents relating to the property, but not approval 900/67 and none of them were for the quarrying or filling of land; 6. papers from the file DC 975/WAL for the period 1967 to July 1973 were missing; and 7. the only logical explanation for the absence of approval 900/67 from file DC 975/WAL was that approval 900/67 was on the missing part of file DC 975/WAL.
The council's "HB" files were its "Health and Building", later "Building Application" ("BA") files, later still, its "Integrated Development" ("IDA") files.
The council submitted that it was significant that a copy of approval 900/67 was on file HB 975/WAL because it showed that, even where part of a development consent file might be missing, the high likelihood was that a copy of any such consent would be found on a related file. The combination of this evidence supported the evidence of Ms Whittingstall that: 1. all development consents were and are kept on the relevant development application file or development control file and, if building work is associated with the development, a copy of the consent was often also placed on the HB, BA or IDA file (as the case may be); and 2. that she had, according to her affidavit sworn 22 May 2015, never known a development consent not to be on or associated with a file.
This latter opinion was important to evidence of Ms Whittingstall's searches for electronic records of files relating to the land because it meant that if the council's electronic records of its development and building files were complete, assuming a development consent in respect of land existed, a thorough search ought to disclose the existence of relevant file.
It is also significant that, from a consideration of the documents on the hard copy file DC 975/WAL it can be seen that, although papers for the period 1967 to July 1973 were missing, including the original of approval 900/67, there were numerous documents on that file which pointed to the existence of that consent.
In addition to the council's files, from a consideration of the minutes of the meetings of the council's Development Committee on 23 January 1967 (a copy of which, as already noted, was on file DC 975/WAL), it can be seen that there were records of the recommendation for the approval, and the granting of the approval, in the minute books for meetings of the council's committees.
Accordingly, the council submitted that, first, the council's electronic records of its development and building files were complete. There had been no file that had been shown to exist that related to the land the existence of which was not recorded on RECFIND. Second, that the searches Ms Whittingstall conducted of RECFIND were thorough. While no searches were conducted for permissive occupancies (discussed further below), this was not problematic because most council records did not describe properties by reference to a permissive occupancy number and the records that referenced the permissive occupancies also contained other descriptors of the land, such as the search terms employed for Ms Whittingstall's searches of RECFIND.
Moreover, from a consideration of the evidence of the searches conducted of the council's electronic records, it was apparent that almost every record of a relevant file contained more than one pointer or "trace" to the possible, or likely, existence of a development consent or approval. The most frequently used descriptor was either "Heathcote Road" or the council's unique number for that road: 975.
Ms Whittingstall's third search of RECFIND threw up results which included all of the council files in evidence in the case and led to discovery of all the consents in evidence which related to either Lot 1 or Lot 2.
Ms Whittingstall's fourth search of RECFIND employed a list of search terms which could possibly relate to the land or quarrying upon it.
Combining the results of the third and fourth searches, there are references in RECFIND to the council's file DC 975/WAL, which can be found from the use of five different search terms or combinations of terms: 975; Quarry; Walker; Quarry and Walker; and Sandy Point and Quarry.
Accordingly, the absence of the original copy of approval 900/67 and the fact that the papers for the period 1967 to July 1973 in the original development consent file were missing did not matter because, the council submitted, there were numerous other documents in the council's records which pointed to the existence of that approval, such as: 1. other documents on the file which have documents missing for the period during which the approval was granted; 2. the related HB file; 3. the council's minutes; 4. the council's Development Committee minutes; and 5. the council's electronic records.
Therefore, it was clear that the council's systems were such that applications for such consents, the consideration of such applications, and the grants of consents, would not have occurred without either a file being opened in respect of the matter, or the documents concerned being placed on or copied on to a file which related to the land. The absence of such records led to the conclusion that no consent was granted either by the council (or by the exercise of any delegated authority) for the use of Lot 2 for quarrying.

[95]

The Searches of the Council's Records Were Inadequate

As stated above, that council's submissions and evidence were directed towards negativing the existence of a development consent granted by the council (or a delegate thereof).
From the searches carried out and documented by the council, it is clear that they were restricted to the council's records, and did not include searches of consents granted by the Minister, the Cumberland County Council or the State bodies referred to above. For example: 1. Ms Whittingstall identified that all searches of RECFIND were limited to council records (see her affidavit sworn 22 May 2015 and her oral evidence at T357.35-36). At no point did Ms Whittingstall, orally or in writing, give evidence of having searched for development consents other than those granted by the council; 2. in the affidavits of Ms Karen Barrass (sworn 3 June 2015), Ms Rachel Schimpf (sworn 2 June 2015) and Ms Alyce Fisher (sworn 5 June 2015), the instructions in relation to the searches of the minute books of the council were only in relation to the records of the council and not of any other body; and 3. in the affidavit of Mr Todd Hopwood (sworn 5 June 2015), although there was reference to the Cumberland County Council as the relevant consent authority, no searches were made in relation to any consents it may have granted (see likewise material annexed to Ms Fisher's affidavit sworn 5 June 2015).
In addition to the problems identified above, Benedict submitted that the searches undertaken by the council were inadequate for the following reasons: 1. the council had broad powers of delegation, which were used to give the Shire Clerk power to grant or amend consent, and insufficient searches of consent or amendments to consent were carried out to capture any consent granted pursuant to delegated authority; 2. there were a number of problems with the RECFIND searches which called into question their reliability; 3. there were problems with the minute book searches; 4. parts of the council records were missing, which meant that the consent might also be missing; and 5. contrary to the submission of the council, the evidence in fact revealed traces of a consent for quarrying on Lot 2.

[96]

Delegated Authority of the Council to Grant Development Consent

Section 530A of the LGA 1919, in force since 1945, and subsequently, s 377(1) of the Local Government Act 1993, conferred on councils a broad power to delegate its powers (Sutton v Warringah Shire Council (1987) 16 NSWLR 498 at 509-517 and Yeomans v Woollahra Municipal Council (1977) 36 LGRA 81 at 84) to, amongst other things, grant development consent.
It was not until late 1974 that delegations of authority became general in the terms of the authority which they conferred (see the oral evidence of Ms Edney at T592:47-593:14 and 594:4, and the terms of the instrument of delegation dated 26 February 1975).
According to Ms Edney (in her affidavit sworn 3 June 2015), however, irrespective of the breadth of authority to grant consents which an instrument of delegation conferred, it was extremely unlikely that a consent would have been granted by a council officer using delegated authority for a quarry anywhere in the local government area. In her experience, such consents were, and are, extremely rare. While she had been involved in assessing application for filling and redevelopment of quarries, Ms Edney herself had never granted consent for a quarry. The reasons a grant of consent by delegated authority for the use of Lot 2 as a quarry was extremely unlikely because such uses of land were highly contentious due to potential amenity issues and adverse environmental impacts.
Ms Edney's evidence of her experience (She commenced her employment with the council in 1980) was, the council submitted, corroborated by her evidence of what she noted in the searches of historical council minute books. Those searches showed that applications for development of clay pits, quarries and gravel extraction were in fact contentious issues, with the result that assessment involved inspection by councillors and requests for further technical reports. As a consequence, these decisions were made by the council. When cross-examined on this, Ms Edney responded by saying (T591:50-592:26): A. Quarries, like filling, and land fill sites are designated developments. Designated developments, by their nature, normally go to council other than being delegated, and the second answer is I've been at Sutherland for seven and a half years and one of the things that I have done this year, for preparation of this affidavit, was to go through about ten years of council minute books, plus 50 odd years of the delegations files. When those two in combination -1 would stand by my opinion that it's not the sort of matter that would normally be done under delegation. It's something where it would go to a council meeting. Q. Because it's a designated development principle? A. Nowadays, and in those days designated development didn't exist, but it was still a issue that wasn't - was the sort of thing that councils would want to know about. There was certainly reference to other similar operations in the council minutes. Q. Insofar as you provide the opinion at [affidavit, 3.6.15, par] 17 based on your experience, you're not suggesting, are you, that it's not possible that in the period prior to 1980 there may well have been delegated authority granted to an officer or officers of Sutherland Shire Council to grant consent to a class of developments including quarries? A. I have gone through the delegation files. That is not the case. There was not - the delegations were, when they were given, were very specific and very limited.
Therefore, the council submitted, it was extremely unlikely that a consent for the use of the land now known as Lot 2 for quarrying was granted by a council officer exercising delegated authority.
However, before the Court was evidence of a delegation of power from Sutherland Shire Council to the Shire Clerk (contained in a letter dated 26 February 1975). Relevantly, the letter headed "Delegation of Authority" and states that: Over a period of many years the Council has exercised its powers under Section 530A of the Local Government Act to delegate certain of its powers to the President, individual servants and groups of servants.
Section 530A of the LGA 1919 is then quoted in full. On page 6, under the heading "The Shire Clerk", the letter states that, "The Council hereby delegates authority to the Shire Clerk in respect of the following matters": 3 Development and Building (a) To grant Interim Development Consent or Development Consent where proposals comply with Council's policy and adopted codes or upon the favourable reports of all departments where minor variations are not considered significant, and subject to the required conditions of all departments. (b) To refuse an application for Interim Development Consent or Development Consent when such application is so outside Council's code or policy requirement that conditions to rectify deficiencies cannot be embodied in an approval. Any such refusal will be accompanied by a letter to the applicant pointing out the deficiencies and indicating that if an amended application is lodged within three months that the development fee paid on the original application will be credited to the new submission (c) To approve all applications relating to Permissive Occupancies which conform to the Council's policy as recommended by the Development Committee Minute No 61 of 20th January 1969 and adopted by Council Minute No 21 of 28th January 1969 and subject to a favourable report by the departments concerned.
The Shire Clerk's delegated authority to grant development consent was constrained in the manner described, but there was no evidence of any of those constraints in existence at any relevant time.
During cross-examination Ms Edney said that she recalled that delegations became broader in 1974 (T594:20-32). Ms Edney accepted that the delegation could support a development consent for a modification to a quarry, but expressed the opinion that this would not have occurred in the 1950s and 1960s, but only upon the enlargement of the delegation powers in 1974.
However, Ms Edney's evidence was not consistent with evidence establishing that the council had wide power to grant interim development consent between 12 July 1946 and 26 June 1951.
In any event, it appears from the evidence, from at least 1974 onwards, the Shire Clerk had a delegated power that allowed him or her to grant a consent to the expansion or modification of the quarry.
The search of council's minute books by Ms Barrass, Ms Shimpf, Mr Hopwood, Ms Edney, Ms Fisher and Mr Lewis-Stark (sworn 1 June 2015) were incapable of discovering a consent granted by an individual, such as the Shire Clerk under delegated authority, because such a development consent was not by resolution and would not have appeared as a minute of a resolution of full council meeting or a council committee.
Only the RECFIND search carried out by Ms Whittingstall was capable of eliciting evidence of a consent granted by the Shire Clerk, or some other officer under delegated authority, and, as is discussed below, there were numerous deficiencies and undisclosed gaps in the searches of the RECFIND system.

[97]

Problems With the RECFIND and Minute Book Searches

There were a number of issues with the RECFIND search which prevent the Court from concluding, in my opinion, that no development consent was ever granted in relation to Lot 2.
First, the method by which the data was entered into the RECFIND system is unknown. This could have resulted in the development consent not being properly recorded. In this regard, Ms Whittingstalll gave the following oral evidence in cross-examination and re-examination: 1. that when one of the council's files is inputted or recorded in RECFIND, it is given a short description (T361:11 -16): Q. So it is to an extent, at the election of the person entering data, primary data into the RecFind system, as to what description is given to the material being entered. Once one goes beyond the reference to the file number and the file, is that fair to say? A. Yes. 1. a decision is made by the data entry operator entering the file into RECFIND as to how to describe it (T362:11-16): Q. I take it, having regard to the fact that you use your language carefully in your affidavit, that is because there is a decision to be made in a particular case by the data entry operator as to whether or not to enter the name of a person associated with the file; is that correct? A. That's my understanding. 1. because Ms Whittingstall commenced employment at the council in 2000, she was unable to give evidence as to what quality control procedures were in place governing the recording of files in RECFIND, and she could not tell the Court how the process of inputting or recording pre-1995 files occurred (T363-364): Q. So in terms of your knowledge as to the systems and particular processes that were implemented by council at that time in 1995, five years prior to you taking up your first position in council, concerning the recording of historic consents in RecFind, you can't give evidence in relation to that, can you? A. No. No. Q. If I were to ask you about, for example, how many data entry operators were involved at that time in searching council's historic files and gathering the historic documents and recording them in RecFind, I take it you'd be unable to assist me there? A. That's correct. Q. And if I were to ask you, for example, if there was any particular policy or procedure in place, such as a quality assurance procedure that was put in place by council at that time in 1995 in relation to the recording of historic consents in RecFind, you'd be unable to assist in relation to that question or that matter? A. That's correct. There was no other witness put forward by the council to explain how pre-1995 files were recorded in RECFIND or how, and in accordance with what procedure, they were described in RECFIND; 1. Ms Whittingstall could not say what proportion of pre-1995 files had actually been recorded in RECFIND (T372:27-36): Q. Assuming there were some development control files opened in that year, 1950, if you could assume that, I'll ask you this question: of those development control files that were opened in 1950, you don't know how many of those files were recorded in RecFind in 1985? A. No. Q. If I asked you the same question for any year from 1955 to 1994 your answer would need to be the same, wouldn't it? A. Yes. 1. Ms Whittingstall could not tell the Court anything about the accuracy of the manual cards that had been used to record council's files from which information was then inputted into RECFIND (T373:16-21 ): Q. Referring to the manual cards that were used as a source for information inputted into RecFind, you can't tell the Court anything about the and you don't purport to tell the Court anything about the comprehensiveness or accuracy of those cards in terms of the detail they recorded of council's actual files, do you? A. No. 1. Ms Whittingstall conceded that pre-1995 files may not have made their way across to RECFIND (T374:24-36), meaning that a search of RECFIND for those files would be useless: Q. You're not making the emphatic statement that you made in relation to the 1995 to 2014 files in relation to the historical files, are you? A. That's right. Q. That is because from time to time historical files may not have been picked up and recorded and imported into RecFind, isn't it? A. I can only - yes, yes. Q. If a historical file created pre 1995 hadn't been recorded or made its way across to being input into the RecFind system, then necessarily a search of the RecFind system for that file will be futile? A. That's correct. 1. the council had not ascertained what proportion of pre-1995 files made their way into RECFIND (T374:46-50): Q. You're not aware, are you, of any audit that has been carried out of council's historical and archived pre 1995 files to establish precisely what proportion of those files are recorded in RecFind, are you? A. No.
It is axiomatic that the reliability of a search system such as RECFIND, a system that has been put in place as a proxy for physical searches of physically filed material, depends on the extent to which that hard copy material is input into the system. If there is a reasonable doubt, because of unknown recording procedures, or simply because there is no evidence put on by the council as to how its paper records and files were put into RECFIND, the output of that database is contestable and the reliability of its product must be questioned.
Second, and as alluded to above, no evidence was adduced by the council as to any quality assurance procedures applied by the data entry operators. The RECFIND system was operational from 1995, however, Ms Whittingstall was unable to give evidence as to what quality control procedures were in place governing the recording of files prior to 1995 (T363:40-44). From between 1946 to 1995 there was a large volume of material on council's files.
Third, Ms Whittingstall's affidavit (sworn 22 May 2015) disclosed that approximately 214 files were eliminated in a search for the term "Readymix". This was on the basis of undisclosed and unknown criteria without providing any information enabling the searcher to identify what files or documents were eliminated, or why. Ms Whittingstall's evidence in in this regard was that: 1. she was not able to give evidence as to what principle or rule the computer system was applying in eliminating these files (T378:9-24): Q. If one moves down the page, for example, if I could take you to the Readymix section at the bottom of that page 240, held in a landscape fashion, you will see that adjacent to the reference to the search for the term "Readymix" amongst RecFind records for development documents, that the computer eliminated some 240 documents? A. 214, yes. Q. 214 documents, and if I could ask you to go back to page 90 of your affidavit and perhaps try and hold the table and annexure open as well because we'll be coming back to it, but if I could just ask you to go to stage 90. That is a screen printout, referring in particular to the rectangle at the bottom of the page, that indicates the elimination by the computer system of those 214 records, doesn't it? A. Yes. 1. no details whatsoever are given by the computer of the eliminated files (T381:36-46): Q. When a file or document, depending on what body of RecFind material your - the particular search is using in relation to the keyword for the particular screenshot, with a document is shown - well, file folder is shown up as being eliminated, you're not told by the computer any file reference number? A. No. Q. Even if you wanted to go and check in council's hardcopy records for that eliminated file folder or document, the computer system isn't telling you how to do that, is it? A. No. 1. significantly, she agreed that the possibility that eliminated files could have included a consent for Sandy Point Quarry could not be excluded (T382:4-16): Q. It follows that in relation to the searches you've carried out, where Files or documents have been eliminated, you haven't looked at those files or document? A. Yeah. I don't know what was eliminated. Q. You were unable to look at the front cover of those files, if they were files? A. That's correct. Q. You don't know whether those eliminated files are lengthy or short? A. No. Q. Therefore, you can't exclude the possibility, can you, at least some of those folders may have included a consent for the Sandy Point Quarry, can you? A. No.
Although Ms Whittingstall considered it very unlikely that the files or folders or documents eliminated by RECFIND would have contained a consent, this did not remove the reasonable doubt that arises from the elimination of the file as a consequence.
While Ms Whittingstall gave oral evidence that she had never been told by anyone that her RECFIND searches had failed to return relevant results (T415.16-19), this was not, in my opinion, capable of properly establishing the reliability of the RECFIND system. Further, given that there was no evidence that Ms Whittingstall's searches were checked or validated by a search of the hard copy files, this gives rise to sufficient doubt as to the comprehensiveness of the search of the RECFIND database.
Fourth, a number of relevant search terms were not searched for. These terms were not "obscure", contrary to the submission of the council, and consisted of (T658-660:19): 1. "SREP9"; 2. "roadbase" or "ironstone" - relevant given the initial use of the site; 3. "extraction"; 4. "Menai quarry" - this appeared to have been searched for in the draft version of Ms Whittingstall's 22 May 2015 affidavit but was omitted from her final version; 5. "permissive occupancy" - despite a permissive occupancy applying to the land at all times; 6. "PO 66/79" and "PO 76/31"; 7. "CSR", "Extractive Industry", "Development Consent", or "DC"; 8. "mining"; 9. "Military Road" (the early name for 'Heathcote Rd'); and 10. "Burfield" or "Burfield Pty Ltd" - this is so notwithstanding that council file DC975/STE noted that Burfield held permissive occupancy extraction rights over the site.
Again, the evidence elicited from Ms Whittingstall in cross-examination was telling: 1. she agreed that a range of relevant search terms were not employed (T385:4-35): Q. You're aware that the quarry on the site was, at one time, operated by a company that was often known as CSR? A. Yes. Q. One of your search terms wasn't that acronym, CSR, was it? A. No. Q. You're aware of the existence of a planning instrument by the name of SREP9 are you, or not? A. No. Q. You're aware that ironstone gravel was quarried from the subject in the 1950s and 60s? A. No. Q. That may be a reason why you didn't search using to term ironstone? A. Correct. Q. You weren't told to search for the term "ironstone", were you? A. No. Q. I assume that you were unaware that the gravel that was extracted from the subject site in the 50s and 60s was, from time to time, used as road base? A. I'm aware it was road base, but what's in road base, I don't know. Q. You didn't search for the term "road base" either, did you? A. No. Q. You weren't told to search for that term? A. No. Q. Neither did you search for the term "extraction"? A. No. 1. in respect of the results of a relevant search for files using the term "Menai quarry", which had been searched for the purposes of a draft affidavit, but were not reproduced in her final affidavit, she said (T388:4-13): Q. You do recall doing a search for the search term "Menai Quarry"? A. Yes. Q. Otherwise, I suggest to you, you wouldn't have included it in paragraph 7 on page 5 of your draft affidavit? A. Yes. Q. Is there any reason why the results of that search weren't included in your affidavit of 22 May that you're aware of? A No.
The failure to search for any or all the above terms left open the possibility that a consent may have been located on an unsearched folder. Moreover, given the number of documents which were missing from files (discussed below) or found on other files, it cannot seriously be contended, as the council sought to do, that the search terms listed above would have returned the same results, and hence, an absence of consent.
Fifth, as noted above, there was no search for permissive occupancies. This omission was not unimportant because: 1. the Shire Clerk was delegated the power on 26 February 1975 to deal with applications relating to permissive occupancies, which could have included a development application relating to land the subject of a permissive occupancy; 2. council file DC 975WAL concerning "Development Control off Heathcote Rd" opened on 9 August 1973, contained a plan which showed the 1967 development consent granted in respect of the area of the A H Walker permissive occupancy covering the site; and 3. the council repeatedly identified the site by reference to its permissive occupancy number, such as "permissive occupancy 1976/31 held by the Readymix Group Limited at Sandy Point" (that is to say, the Sandy Point Quarry). See, for example, letters from the Shire Clerk dated 3 April 1981 to the Land Board Office and Readymix, and a letter from the council to the Department of Land & Water Conservation dated 18 June 1998.
Notwithstanding that the council knew that the Sandy Point Quarry was additionally referred to by its permissive occupancy number, remarkably, Ms Whittingstall did not search for permissive occupancies because she was directed not too (T391:21-30): Q. You regarded a search using RecFind for permissive occupancies or licences using such search terms as a search that may have been useful in an attempt to locate a development consent for the Sandy Point Quarry, didn't you? A. Yes. Q. Because you were then directed not to carry out those searches and having regard to your position as a council employee, you didn't carry out those searches, did you? A. No.
The failure to search RECFIND for permissive occupancies, either by generic name or by specific number, therefore left open a reasonable doubt as to whether the results of the RECFIND searches can be relied upon as evidence of the absence of a development consent.
Sixth, some files that should have been, but were not, searched. For example, the New lllawarra Road file was not searched. Ms Whittingstall accepted that a copy of a consent for the site could exist on this file (T422:20-21).
Seventh, there were a number of problems with the searches of the council minute books (recording the granting of development consents), which meant that there was a degree of doubt as to the reliability of the searches.
It was the oral evidence of Ms Lewis-Stark that although she skim read the minute books that she searched, it was "unlikely" she had missed a search term in her search of the minute books because she went through them to the best of her ability. Similar evidence was given by Ms Barrass (T697:27-36) and Ms Fisher (T698:15). Ms Fisher conceded that there were thousands of pages to search through. Ms Schimpf accepted that the skim reading process did not involve in depth reading (T669:26-34). Ms Schimpf gave evidence that she would skim read about 400 pages per hour (T670:6-28). In any event, a response that any error was "unlikely", nevertheless left open the reasonable possibility that a mistake could have been made.
Moreover, because the council only instructed its team searching the minute books to search by a process of skim reading for a limited set of search terms, this left out many potential references to the site (see the list above) (see the oral evidence of Ms Lewis-Stark: T685-686, the affidavit evidence of Ms Schimpf sworn 3 June 2015, and Ms Barrass sworn 3 June 2015).
In addition, there was a degree of uncertainty concerning the evidence given by Ms Barrass in relation to the searches that she performed insofar as she was unable to recall a number of important features of her search, including that there may have been other documents, minutes or reports, that may have contained the search terms that were not referred to in her affidavit, and because she could not recall how she determined whether or not something was relevant to the search (T688:31-50).
Eighth, a number of identified relevant documents were missing from the council's files, or the files themselves could not be located. This meant that the records of the council - and thus what was searched - were incomplete. Files, or parts thereof, which were missing included: 1. documents from the development consent file DC 975/WAL from 1967 to July 1973; 2. the G5 gravel pits file. It was accepted in cross-examination and re-examination that this file had not been searched and that there was a possibility that there may have been development consent for the site on the missing file (T404:29-45). Under re-examination, however, Ms Whittingstall said that it would be "unlikely" that the gravel pits file contained the development consent (T422.23-32); 3. the hard copy of the development consent granted to Walker in 1967, as well as the hard copy of the file that would have been created when consent was granted. In fact, it appears that for a period of time the council lost the 1967 consent insofar as it was not aware of its existence. A letter dated 21 August 1980 from the Shire Clerk to Readymix, indicated that "development consent for the quarry use has never been sought". As is known, this was not correct; 4. the 1991 Environmental and Health Committee minute book; and 5. the BA plan or building approval plan 647/82 (elaborated upon below), that was able to be produced by Benedict but not the council.
The council argued that the fact that a file numbered "G5" was missing did not give rise to a reasonable possibility that the file contained a consent for quarrying on Lot 2. This was, in part, because the missing file was a general file in respect of gravel pits in the Shire and not a specific file relating to a specific parcel of land, or raised upon the receipt of a development application. It was therefore, according to Ms Whittingstall (T404:14) extremely unlikely that a consent for the use of a particular parcel of land would have resulted in the opening of a general file on gravel pits, or that the original consent would have been placed on a general file relating to gravel pits in the Shire, and moreover, that there would have been no reference in any other file - particularly one of the numerous files relating to the land - or in any book of minutes of meetings of committees which considered such applications. Rather, if a consent had been granted, it was "inevitable" that there would be a record of it on some database or in some other form of record.
But in light of the evidence canvassed above, I cannot share her confidence. Ms Whittingstall had not inspected this file and her opinion must be therefore given limited weight. In any event, it does not of itself exclude reasonable doubt that the file did not contain the development consent.
In relation to the missing material from file DC 975/WAL, the council relied on the evidence of Ms Whittingstall to similarly argue that it was "very unlikely" that these documents would include a development consent in relation to the Sandy Point Quarry. This was "because there would be some reference to a consent number on other files or even in the other searches that I've actually done it would have picked up something in relation to a development consent, but there wasn't anything" (T423:20).
But again, an opinion that it was "very unlikely" that the missing documents would contain a relevant development consent does not mean that, in light of the deficiencies in the searches elaborated upon above, all reasonable doubt can be excluded.
Ninth, Ms Whittingstall accepted that consents for the Sandy Point Quarry could have been placed on unrelated files which would have not shown up on RECFIND as related to the subject land (T402:41-50): Q. You accept that if a quarry plan for the Sandy Point Quarry land was on a file dealing with a New Illawarra Road property, and I would ask you to assume that, then there could well have been quarry plans dealing with the Sandy Point Quarry on other unrelated development control files? A. Yes. Q. Not only could quarry plans have been located on other unrelated development control files, but associated documents such as development consents? A. Yes
Finally, the council failed to search its register of consents required to be kept pursuant to s 100 of the EPAA (as for its content, see cl 264 of the Environmental Planning and Assessment Regulation 2000) and formerly under cl 56 of the CCPSO for the period for which the council was the responsible authority after 1962. A search of the register is a search that is routinely done by a council seeking to demonstrate the absence of development consent (Wingecarribee Shire Council v O'Shanassy (No2) [2014] NSWLEC 73 at [33]).

[98]

There Were Traces of a Development Consent for Lot 2

The council forcefully submitted that had there been a consent in respect of quarrying on Lot 2, there would have been some "trace" of it within the council records and because the searches of the council records had uncovered none, this permitted the inference to be drawn that it did not exist.
But as the evidence disclosed, there were multiple traces of such a development consent. This evidence is discussed in considerable detail below (at [325]-[344]), however, for the sake of convenience, a brief summary of the various traces is provided immediately below.
First, a trace is contained in a plan of Portion 458 from the County Cumberland as at 16 March 1954, Portion 456 was partially identified and the plan indicated that Burfield held permissive occupancy 53/125 over the site, including Lot 2 as at 25 March 1954. Given that since 12 July 1946, and as at 25 March 1954, extractive industry on the site required a development consent, this is a trace that such a development consent existed, having been granted either by Cumberland County Council, the Minister, or the council.
Second, documents record that the council was carrying out gravel extraction across the land now knows and Lots 1 and 2 during the 1960s (see, for example, permissive occupancy 66/92). It may be presumed that this was carried out lawfully pursuant to an approval.
Third, there is a "trace" of a relevant consent contained in the 1974 in-principle decision to allow a boundary adjustment to permissive occupancy 1966/379 for the purpose of setting aside areas for "future extractive industries" (see the handwritten memo dated 6 February 1974). This would permit the extension of the permissive occupancy into Lot 2 in circumstances where the council was aware that quarrying was already occurring on that Lot. The tacit approval was conditional upon the council being provided with "precise details".
By 16 May 1977 the council was provided with those details in a letter to the Shire Clerk from the Land Board Office attaching a Schedule of Conditions, which, at condition 32, referred to six sheets of survey and design plans (the Homesite plans). The six sheets were all on the council file DC 975/WAL. The Homesite plans showed that quarrying and backfilling was occurring on Lot 2 and that it was proposed to extend the quarry across most of Lot 2. The further details provided to the council in 1977 give rise to a "trace" of a consent to quarry across the whole of the site, including Lot 2. It is implausible, in my view, that an in-principle agreement to expand the boundaries of the permissive occupancy in force at the time over the site would have been given in respect of an activity that the council considered was being unlawfully carried out over Lot 2.
Fourth, as referred to above, another trace exists in two letters dated 3 April 1981, sent by the Shire Clerk to the Land Board Office and to Readymix (elaborated in detail below). In my opinion, both letters suggest the existence of a prior relevant development consent. The letter to the Land Board Office referred to the "Development Committee Minute No. 62 of 23rd January, 1967" which had been "inadvertently" overlooked. The letter to Readymix stated "that the Land Board Office has drawn attention to a decision of Council in 1966, whereby a former operator of the quarry was given approval". A reasonable inference to be drawn from these letters is that there was a decision by the council in 1966 to grant a former operator of the Sandy Point Quarry approval. If the 1967 consent only related to Lot 1, it can be inferred that the 1966 consent was different, and either applied to the whole of the site, or to only Lot 2. The council argued that the reference to "1966" in the Readymix letter was a typographical error given the identical date and similar language contained in the two letters, but given the numerous "traces" of another development consent in the evidence, I do not accept, without more, this to be the case beyond reasonable doubt.
Fifth, evidence is located in a copy of plans in respect of building approval BA 647/82 dated 29 March 1982 granted by the council in respect of the relocation a weighbridge, assorted plant, and a carpark. There was an underlying consent for the building approval (DA 1834/81 dated 23 September 1981), but the building approval plans suggested the existence of an underlying consent for the quarry insofar as the plans showed quarrying across both Lot 1 and Lot 2. From this it may be inferred the council was aware that quarrying was taking place across both Lots.
Further, the development consent underlying BA 647/82 (DA 1834/81) was on DC 975WAL. One of the plans forming part of development consent 1834/81, entitled "Readymix Concrete Pty Ltd Sandy Point Quarry Proposed Layout", showed the whole of permissive occupancy 76/31 covering both Lots 1 and 2. Again, the existence of this plan on the development consent 1834/81 file suggest that the council was aware of, and had earlier approved, quarrying on Lot 2.
Sixth, EPL 01924 first issued to Readymix on 29 June 1993, continuing through to at least 29 June 2014 (as subsequently varied) is likely to have been premised upon an underlying consent to quarry on both Lots 1 and 2. The EPL was located on the council file HB 975/WAL.
Seventh, a letter dated 18 June 1998 from the council to the Department of Land and Water Conservation expressly refers to a "further consent", presumably in addition to the 1967 consent.

[101]

Proof of a Grant of Consent by Conduct - the Application of the Presumption of Regularity

The question whether development consent has been given is one of fact that is capable of proof by evidence of express consent by the responsible authority, or by conduct evidencing consent (Brickworks Ltd v Warringah Corporation (1963) 108 CLR 568 at 576 - 577 per Windeyer J; Pearson v Leichhardt Municipal Council (1997) 93 LGERA 206 at 211 and Baiada v Waste Recycling and Processing Service of NSW [1999] NSWCA 139; (1999) 130 LGERA 52 at [38] per Mason P, Sheller JA agreeing, and Powell JA dissenting in the result, but agreeing with the principle at [98]).
Thus, by way of illustration, in North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50 the Court of Appeal was prepared to infer the existence of a consent for the use of premises as a warehouse, despite a fire that destroyed the primary council's records, because of the conduct of the council and the authorisation of a building approval noted in the council's building application register (at 53F per Kirby P).
In more recent case law, this principle has been characterised as an application of the principle of regularity.
The presumption of regularity has been described as a presumption of fact associated with a reasonable inference based on what ordinarily happens in the ordinary course of human affairs (Hill v Woollahra Municipal Council [2003] NSWCA 106; (2003) 127 LGERA 7 at [52]).
In Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48; (2012) 188 LGERA 26 the Court of Appeal applied Brickworks and Baiada to infer that a development consent had been granted in circumstances where it was alleged that none existed (at [111]-[120] per McColl JA, McFarlane and Whealy JJA agreeing).
In that case, Walfertan Processors Pty Ltd ("Walfertan") lodged a development application for the treatment of tannery effluent on both tannery land and land acquired by it that was adjacent to the tannery. The tannery was established in 1973 and Walfertan had operated it since about 1990. Darley Australia Pty Ltd contended that Walfertan was required to submit an EIS with the application because, amongst other things, there was no evidence of a consent to the lawful operation of the tannery. No party was able to produce a document from a relevant consent authority which in terms consented to the commencement, or authorised the operation of, the tannery. The primary judge had applied the presumption of regularity to conclude that there was an existing or approved development for the tannery.
The Court of Appeal considered that the earlier decisions of Brickworks and Baiada were incidences of the application of the presumption of regularity, notwithstanding that the principle was not expressed that way in either case (at [113]). The Court described the presumption in the following way (at [114]-[116]): 114. The presumption of regularity has been described as both a "rebuttable presumption of law" (Cross on Evidence, LexisNexis Butterworths, at [1175]) and "a presumption of fact, associated with a reasonable inference based on what ordinarily happens in the ordinary course of human affairs" (Hill v Woollahra Municipal Council [2003] NSWCA 106; (2003) 127 LGERA 7 (at [52]) per Hodgson JA (Ipp JA and Davies AJA agreeing)), whose "natural home...is public law": Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 (at 164) per McHugh JA. 115. The presumption of regularity has also been described as one which "arises from the ordinary course of business", being "a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act": McLean Bros & Rigg Ltd v Grice[1906] HCA 1; (1906) 4 CLR 835 (at 850) per Griffith CJ (Barton and O'Connor JJ agreeing), citing Knox County v Ninth National Bank 147 US 91 (1893). In Minister for Natural Resources v NSW Aboriginal Land Council (at 164) McHugh JA explained its operation in the public law context as follows: "Where a public official or authority purports to exercise a power or to do an act in the course of his duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled." 116. In deciding whether the presumption of regularity is rebutted, the inference from the ordinary course of human affairs carries some weight which may vary according to the proved circumstances: Hill v Woollahra Municipal Council (at [52]). In this respect, in my view, Windeyer J's remarks in Brickworks Ltd v Warringah Corporation remain cogent: "The giving or refusing of a consent, as required by the Ordinance, was an important discretion entrusted to the Council as the 'responsible authority'. It is not to be assumed that the Council and its officers neglected their duties or discharged them in a perfunctory manner."
The Court challenged the notion that the presumption applied only to matters of form, and not substance, and noted that it was capable of applying to the issue of whether or not a development consent had been granted, or validly granted (at [117]-[118]): 117. There is authority to the effect that the presumption of regularity applies "only to matters of form, rather than of substance", a proposition which may not be consistent with earlier decisions of this Court: see the discussion in GPT RE Limited v Belmorgan Property Development Pty Limited [2008] NSWCA 256; (2007) 72 NSWLR 647 (at [82]) per Basten JA (Bell JA and Young CJ in Eq agreeing). Such authority would also be inconsistent with Brickworks Ltd v Warringah Corporation in which the presumption of regularity was applied to conclude that a council had given consent for land to be used to extract minerals. 118. The presumption of regularity was considered capable of applying to the issue whether development consent had been given, or its validity, in Baiada and Ashfield Municipal Council v Armstrong [2002] NSWCA 269; (2002) 122 LGERA 105. Indeed, Powell JA, who dissented in Baida, held (at [97] - [117]) that the presumption could be invoked to demonstrate development consent had been given. I proceed accordingly on the basis that Walfertan was entitled to call the presumption of regularity in aid.
Applying the presumption of regularity, the Court of Appeal concluded that the primary judge had not erred in concluding that the tannery had earlier been granted development consent (at [119]-[120]): 119. In my view the primary judge did not err in concluding that the tannery could have been considered as an "existing or approved development". All the development consents which were produced had been given by Scone Shire Council, which appears from the title of the then relevant IDO (the "The Shire of Scone Interim Development Order No 1") also to have been the relevant consent authority at the time the tannery commenced operations in 1973. The primary judge accepted (at [40] in adopting Walfertan's submissions set out at [34] -[35]), that the subsequent development consents "relied on the existing situation at the time the application was made", that being a reference, to my mind, to each development consent having been given on the premise that the tannery itself had development consent. 120. This was, in my view, an appropriate case for application of the presumption of regularity. It should not be assumed that Scone Shire Council and its officers so neglected their duties as to have granted four development consents and apparently given building approval for the construction of the tannery building without there having been development consent for the operation of the tannery itself: Brickworks Ltd v Warringah Corporation (at 577). The fact that one officer of the Council referred to the tannery as an "existing use" reflects the lack of a formal record and/or an inability to locate one - precisely the circumstance application of the presumption is intended to cure. That reference did not however, in my view, rebut the presumption that the Council as a whole would only have granted subsequent development consents and apparently approved the construction of the tannery building if original approval for the tannery's operations had been given.
In Darley the existence of development consent was inferred or presumed from the fact that council would only have granted subsequent development consents, and apparently approved the construction of the tannery building, if original approval for the tannery's operations had been given. To do otherwise would have involved illegality or irregularity in that sense.
In my opinion, the fact that these are criminal proceedings is no impediment to the presumption of regularity being applied in favour of Benedict. As a matter of logic, by reason of the onus of proof it bears, a prosecutor cannot rely on that presumption in criminal proceedings (Selby v Pennings (1998) 102 LGERA 253 at 261-265). There is no reason in principle why the presumption would apply to give rise to an inference that a consent had been granted in civil proceedings, but not criminal proceedings. The council was not able to refer the Court to any authority suggesting that Benedict ought not be permitted to avail itself of the presumption of regularity. I therefore intend to apply it to the present proceedings.
There is a history of conduct and numerous representations by the council (it does not matter that these were not made to Benedict or occurred before Benedict's occupation of the land (see Darley at [27]) that it had granted consent for quarrying on Lot 2, which gives rise to an inference that a consent was granted to Benedict.
At the risk of repetition given the history of quarrying at the site described earlier in this judgment, the circumstances from which it may be inferred that consent must have been granted to quarry on Lot 2 applying the presumption of regularity include the following: 1. in 1953 Burfield was the grantee of permissive occupancy 53/126 to extract gravel on Portion 456 (Lot 2). As the aerial photographs show, by 1955 there is evidence of clearing and disturbance on Portion 456, giving rise to the inference that Burfield had commenced quarrying or activities causing removal of vegetation and disturbance of the ground for the purposes of quarrying gravel. For the reasons given above, Ordinance 105 applied and the development would have been interim development thereby requiring interim development approval. Alternatively, if consent had not been granted pursuant to Ordinance 105, consent would have been required under the CCPSO. A memorandum from the council dated 26 May 1954, notes that the "the Lands Dept. granted a permissive occupancy over Por. 456 for the purpose of winning gravel to Burfield Pty Ltd". It further noted that the council objected to the granting of this "P.O." and that the council had a number of other leases. The council was therefore expressly aware of the permissive occupancy. It must have known that consent was required to carry out the extractive activity, but there is no evidence or suggestion that the council took any action to prevent Burfield from quarrying the land notwithstanding its opposition to the grant of the permissive occupancy; 2. during the 1960s Lot 2 was the subject of further intensive disturbance (again evident from the aerial photographs). In the 1960s, or commencing in the 1960s, the council itself had permission to remove gravel on the land across the Sandy Point plateaux, including on Portion 456 (see permissive occupancy 66/92). Such a use of the land required development consent pursuant to the Special Uses zoning in the permissive occupancy and large amounts of ironstone gravel were extracted by quarrying from the Menai area by the council over many years; 3. in 1966 A H Walker was granted permissive occupancy 66/379 for extractive operations on land to the west of portion 456. The initial boundary of permissive occupancy 66/379, granted to Mr Walker in 1966, did not include the land now known as Lot 2, but only included the land now known as Lot 1 (see also the evidence of Ms Edney at T523:49-524:12); 4. on 1 February 1967 the council advised the Metropolitan District Surveyor of the fact that the 1967 consent would be granted to "Mr A J Walker" (presumably this should have been "Mr A H Walker") to extract larger stones on the Crown land west of Portion 456 (Lot 1); 5. on 9 August 1973, the Department of Lands sought the council's concurrence to the expansion of Mr Walker's permissive occupancy 66/379 to adjoining land (now Lot 2). The Department considered that final surface levels suitable for subsequent residential development in the area should be designed for permissive occupancy 66/379, and that full development of the quarry could necessitate adjustment of the boundaries of the occupancy to allow the quarry floor to be blended with adjoining natural surface by desirable grades and, as any "existing use" would only permit the present area (Lot 1) to be quarried, any adjustment should be resolved prior to residential zoning. By way of letter to the council dated 9 August 1973, the Land Board Office, having conveyed the above position to the council, stated that "Council's concurrence to the possible alteration of the boundaries of [permissive occupancy 66/379] is therefore requested"; 6. by early February 1974 the council's town planners had considered this proposal from the Crown and had come to the conclusion that it was beneficial from an environmental/amenity perspective. In an internal handwritten memorandum from the Assistant Town Planner to the Deputy Town Planner dated 6 February 1974, the Assistant Town Planner referred to the advice from the Department of Lands in relation to the proposed adjustments to the boundaries of permissive occupancy 66/379 and relevantly stated: To allow full development of the quarry to take place the Department will need to adjust the boundaries of the occupancy. This will allow the quarry floor to be blended with the adjoining natural surface by desirable grades. There is no information on file regarding restoration of this quarry area and it appears that the excavation will remain. The Departments efforts to blend this with adjoining natural surface should relieve its impact on the area and it is considered that if a boundary adjustment is necessary to achieve this then such should be favoured. It was therefore recommended: that the Department of Lands be advised that Council does not object to the principle of adjusting the Permissive Occupancy boundaries to allow for the satisfactory blending of this area of excavation with the adjoining land, provided that (1) when further, more precise details are known they are forwarded to Council for concurrence; (2) the excavated area is re-generated with suitable top soil and native flora to provide an attractive setting blending harmoniously with existing surrounding vegetation. An inference may be drawn that the expansion onto Portion 456 was considered by the council to be lawful; 1. on 12 February 1974, the Menai Development Unit adopted the recommendation and put it forward; 2. on 22 February 1974 in a letter bearing a header referring expressly to "Quarry Operations" in relation to "Permissive Occupancy 66/379", the Shire Clerk of the council, A G Hill, stated: 22nd February, 1974 Officer-in-Charge, Land Board Office, Department of Lands, G.P.O. Box 39, SYDNEY….2001 Dear Sir, Permissive Occupancy 1966/379 - Heathcote and Liverpool Roads, Menai - Quarry Operations I refer to your letter of 9th August, 1973 (L.B.72/2129 AJG:IM) relating to the adjustment of the boundaries of the above occupancy. This matter has been considered and I wish to advise that Council has no objection in principle to the adjustment of the side boundaries provided precise details when known are forwarded for its concurrence. In addition the excavated area is to be regenerated with topsoil and native flora to blend in with surrounding vegetation. In respect to your comment regarding residential zoning in this area I wish to advise that this is a matter for future determination and at this stage no firm proposals exist. Yours faithfully, (A.G. Hill) Shire Clerk From this document two things may reasonably be inferred. First, that the Shire Clerk had delegated power to consent to such a proposal; and second, that the council did not object to it; 1. the Shire Clerk wrote another letter to the Land Board Office on 2 May 1977, concerning complaints from residents about the operation of the quarry. Again the letter referred to the "operation of the quarry on Permissive Occupancy 1966/379". It notes that the records of this activity beyond 1973 were "obscure" but that there was correspondence dated 3 March 1966. It requested copies of all approvals or leases granted in respect of the quarrying activity and noted that the quarry was "now being worked with a view to leaving the site suitable for residential development". Thus the council was aware that the quarry was being extended; 2. having given its concurrence in-principle, subject to being provided with the "precise details", the council was subsequently provided with those details in 1977. They were contained in a letter to the Shire Clerk dated 16 May 1977 from the Land Board Office attaching a Schedule of Conditions to permissive occupancy 76/31, which replaced permissive occupancy 66/379. Condition 32 referred to six sheets of survey and design plans known at the "Quarry Plans" - also known as the "Homesite Plans"; 3. the Homesite Plans set out the details which the council had requested in its letter dated 22 February 1974 to the Department of Lands, namely, details concerning the extension of the quarry over the land now known as Lot 2, and the implementation of a plan to have the finished surface levels set at acceptable grades by designed finished levels. The Homesite Plans, prepared by the Department of Lands Homesites Branch, were all entitled "Sandy Point Quarry" and included the base plan, details of the quarry floor, details of the finished surface, cross section details (depicting the natural surface, the designed backfill surface and the designed quarry floor) and details of staging (Ms Edney agreed that the Homesite Plans in evidence were those referred to in condition 32 of the Schedule of Conditions: T549:3-555:32). The sheets were all on the council file DC 975/WAL. The Homesite Plans clearly showed that quarrying and backfilling was occurring on Lot 2 and that it was proposed to extend the quarry across most of Lot 2 ranging from a depth of 1.5m to about 11m (agreed to by Ms Edney: T541:21-547:47, confirmed by the oral evidence of Mr Walz: T227-233 and the evidence of Mr Denny Linker). Accordingly, as at May 1977, the council was aware of a clear proposal for the quarrying to extend over almost all of Lot 2 in an easterly direction to a significant depth towards an area that was being identified as suitable for possible residential development; 1. the council's internal memorandum from its Deputy Town Planner to its Town Planner dated 31 May 1977 indicates that the Land Board's letter to the council dated 9 August 1973 (and associated communications) concerning the extension of the boundaries of permissive occupancy 76/31 was considered to be "a request from the Land Board Office in 1973 for approval to adjust the boundaries to allow the quarry floor to be blended with adjoining natural surface" and that "the principle of this action was agreed to by Council". The council was therefore aware of the quarrying program extending into Lot 2 and was in possession of, and had seen, the Homesite Plans, which, at that point in time, was being worked in "Stage 1" on Lot 1. Curiously, the Deputy Town Planner stated in the "summary" to the memorandum that "it would appear that" there has been no development consent to this activity. This was a statement clearly intended to apply to quarrying on the site as a whole, including Lots 1 and 2, as is evident from the correspondence which culminated in the letters from the council to the Department of Lands and Readymix on 3 April 1981. This statement was, as is known, not correct (see the 1967 consent); 2. in a further internal memorandum from the Deputy Town Planner to the Town Planner dated 24 June 1977, the Deputy Town Planner stated: Development consent for the quarrying use has never been sought from Council but in recent times the quarrying activity has been subject of thorough investigation by the Department of Lands, Department of Mines and the Police Department. The Department of Lands in 1976 amended the terms of the permissive occupancy and attached a schedule of condition which are designed to allow development to proceed in stages. Progress from one stage to the next will be dependent on satisfactory compliance with all working and rehabilitation conditions and will be subject to approval of the Minister for Lands. The quarry is to be developed according to a profile prepared by the Home Sites Branch of the Department and the final levels are indicated on Sheet 6 attached to the file. These are designed to marry with existing surrounding conditions, grades are generally in the order of 7% and the site is to maintain a slope to the north. While the design was based on future residential use of the site, there is no apparent constraints for other planning options and the current procedure is acceptable from this point of view. The Department of Mines and the Police Department have recently investigated complaints from residents of Sandy Point concerning blasting operations at the quarry. These investigations proved that the complaints were mainly unjustified but in the interests of all concerned, the matter will be under close scrutiny in the future. Basically the quarry operation is progressing in a satisfactory manner. Therefore, it is recommended that Council not pursue any action at this time other than to advise the Department of Lands that details of problems or lease alterations which arise during the course of the operations should be immediately brought before Council's notice. It is clear from this memorandum that the council had the Homesite plans and was aware of the activity taking place across the site, and the reason for that activity; 1. the 1978 aerial photograph shows ongoing quarrying on both lots; 2. by 1980, Readymix was operating the Sandy Point Quarry. Again, erroneously, the council wrote to Readymix on 21 August 1980, stating that consent for the quarry had never been sought and enclosing the necessary development application forms; 3. on 2 March 1981, in a letter from the Land Board Office to the Shire Clerk, Readymix was confirmed as the beneficiary of permissive occupancy 76/31; 4. the council letter to Readymix dated 21 August 1980, prompted the following rebuke from the Land Board Office to the council on 17 March 1981: Dear Sir, Reference is made to Permissive Occupancy 1976/31 held by The Readymix Group Limited at Sandy Point. A perusal of our files shows that Permissive Occupancy 1976/31 Metropolitan was originally held under a different number. Permissive Occupancy 1966/379 by Mr AH Walker and three others, as advised in this Office's letter of 2nd March 1981. A change of number was allocated when the "transfer" was effected. Our files also show that Mr Walker lodged a development consent with Council in the late 1966, early 1967 and that Council offered no objections to the proposal. A copy of Council's advice to this Office is attached. This Office views the takeover by The Readymix Group Limited as a continuation of the existing operation and is concerned about Council's request to the Readymix Group Limited to lodge an application for development consent (with an Environmental Impact Statement) when this has already been granted to the previous holders. If the Environmental Impact Statement was to fail, the Company would be obliged to cease operations with doubt cast over satisfactory restoration. As Council is already aware there is a large hole which is an eyesore to the community. Although a security deposit is held by this Department, it would be preferred that the Company complete its operation and carry out necessary restoration in accordance with its existing stage plan. This Office therefore requests an explanation as to why Council now requires an Environmental Impact Statement to be prepared when the operation has been in existence for many years and consent was previously given. Also, it is known that Council has been using material from the quarry for its own works and had been aware of the operation for some time. There would appear to be several discrepancies by Council in the matter. Yours sincerely, J.P. LYNN, Officer in Charge 1. crucial evidence is contained in two letters dated 3 April 1981, one sent by the Shire Clerk to the Land Board Office and the other sent by the Shire Clerk to Readymix. The letter to the Land Board Office states as follows: 3rd April 1981 The Officer in Charge, Land Board Office, G.P.O. Box 39, SYDNEY 2001 Dear Sir, Permissive Occupancy 1976/31 held by the Readymix Group Limited at Sandy Point. Your Reference: MN 80 H 808/2 I refer to your undated letter, received by this Council on 20th March, 1981, and wish to thank you for drawing attention to previous Council correspondence in the matter. It would appear that Council's previous decision, vide Development Committee Minute No. 62 of 23rd January, 1967, has inadvertently been over-looked, because records of this activity beyond 1973 are somewhat obscure. Under these circumstances, there would now appear to be no action required other than the request that should you become aware of problems with the mining operation or restoration works, you might bring these to the Council's notice. The Readymix Group will be advised of Council's previous decision. Yours faithfully, (A.G. Hill) Shire Clerk The letter to Readymix was in the following terms: 3rd April, 1981 The Manager, Readymix Group Limited, P.O. Box 400, PARRAMATTA 2150 Dear Sir, Quarry - Heathcote Road, Sandy Point I refer to Council's previous correspondence in this matter and wish to advise that the Land Board Office has drawn attention to a decision of Council in 1966, whereby a former operator of this quarry was given approval. This decision was inadvertently overlooked because records of this activity are somewhat obscure beyond 1973. Under these circumstances there is no further action required by you in relation to lodging a development application. Any inconvenience which might have been caused is regretted. The Land Board Office has been advised in similar terms. Yours faithfully (A.G. Hill) Shire Clerk Again, these letters demonstrate that the council was aware that the operation of the quarry was across the entire site, namely, Lots 1 and 2. It is in this context that the letter to Readymix is so significant because it refers to a decision of the council in "1966", not "1967", where a former operator was given approval, and states that no further action is required. It is the latter statement that undermines the council's suggestion that the reference to "1966" is a typographical error (discussed earlier in this judgment). If the council in fact meant the "1967" consent, then it must be taken to have known that it only covered Lot 1 and not Lot 2, and therefore, a development application was required to be lodged. The rational hypothesis that there was a separate consent cannot be excluded and, as Benedict submitted, the case for the application of the presumption of regularity in these circumstances is almost irresistible, especially having regard to the problems identified with the council's record keeping discussed in detail above (for example, the fact that parts of DC 975/WAL are missing from at least 1967 to 1973); 1. as referred to earlier in the judgment, on 29 March 1982 development approval BA647/82 was granted by the council for the whole quarry site for relocation of the weighbridge, office building, storage tanks, sheds and car park area on Lot 1 (not Lot 2, as the council emphasised in its submissions). There was an underlying consent for the building approval (DA 1834/81 dated 23 September 1981). The building approval plans in respect of BA647/82, however, suggest the existence of an underlying consent for the quarry. This is because the stamped plans refer to the final finished quarry floor levels, together with its natural contours, across both Lot 1 and Lot 2. From this it may be inferred the council was aware that quarrying was taking place across both lots, and moreover, that it had acquiesced in this activity taking place. Although the building approval was in respect of the relocation of certain plant on Lot 1 (which did have consent for quarrying), it would nevertheless be unusual to grant approval for a relocation - the rationale for which was because the underlying activity necessitating the move was in respect of an activity being carried out on Lot 2 - if that use of land was unlawful. Section 314(4) of the LGA 1919 in force at that time precluded approval of a building application unless the council was satisfied that the building would be in accordance with the provisions of the Act, which would not likely be the case if it could not be used as the approved weighbridge by reason of the quarry not having development consent prior to its use. The Proposal for the Relocation of the Weighbridge and Parking Area at the Readymix Quarry Sandy Point, NSW, forming part of the development application (contained in DC 975/WAL) affirms the analysis above. It stated as follows: The quarry is situated on Crown land and its operation is controlled under a permissive occupancy from the New South Wales Lands Department. Under this agreement the present extractive pit is being expanded to the south and east in a single continuous face to gain access to all available reserves within the present permissive occupancy. The development of the quarry is being undertaken in stages; once each stage has been excavated to the final quarry floor contour, rehabilitation will then commence and quarrying will move on to the next stage. … 2. The site will not require further relocation of the weighbridge at a later date. The existing surface levels at the site will require minimal excavation to reach the final design surface (as specified by the Department of Lands quarry plans). Once this has been completed the weighbridge will remain at this location for the duration of the quarry's lifetime. … The proposed use of the site is consistent [sic] with the use of the site for quarrying purposes. … This proposal is consistent with the controlled quarrying and rehabilitation of the quarry site. The relocation of the buildings will substantially increase the reserves available for extraction thus extending the operation's working life and providing continued employment for the quarry workforce. This document therefore reinforces the conclusion that the council knew that the quarry was expanding eastwards over Lot 2, and supports the conclusion that the building approval and associated consent was granted against the background of lawfully quarrying on Lot 2. This analysis is also consistent with the Homesite plans and the plans that were stamped as approved, forming part of the weighbridge relocation application. Further, the building approval applied to the whole site and was deemed to be a development consent by operation of law under clause 41(2) of the CCPSO for the use of the weighbridge and associated buildings. Clause 41(2) of the CCPSO as certified on 21 December 1972, and in force as at March 1982, provided as follows: (2) Where, in pursuance of the Act (except Part XIIA thereof) or of an ordinance made under the Act (except the said part), an application is made to the responsible authority for its approval to erect a building such application shall, if the matter to which it relates requires the consent of the responsible authority under this Ordinance, be deemed to be an application for such consent, unless the application does not contain the information and particulars required by subclause one of this clause and the responsible authority so informs the applicant on or before giving its decision under the Act (except Part XIIA thereof) or under an Ordinance made under the Act (except the said Part). Finally, the development consent underlying BA 647/82 (DA1834/81) was on DC 975WAL. One of the approved plans forming part of development consent 1834/81 was entitled "Readymix Concrete Pty Ltd Sandy Point Quarry Proposed Layout", showing the whole of permissive occupancy 76/31 covering both Lots 1 and 2. The existence of this plan on that file suggest that the council was aware of, and had earlier approved, quarrying on Lot 2; 1. on 29 April 1983 there was a meeting at Sandy Point Quarry with Readymix, the council (Mr Des Hewitt) and officers of the Lands Office present. The meeting was recorded in a memorandum prepared by Mr Michael Johnson of the Department of Lands on 30 May 1983. The officers present at the meeting inspected the quarry, including the handling of the overburden and were "satisfied with the manner of operation" of the quarry by Readymix. It was noted that, "it will not be necessary to shift the new weighbridge and office" and that council's involvement in the project was decreasing and that it would not be necessary to attend further meetings. This is consistent with the existence of lawful extractive activity occurring across the whole of the quarry, including Lot 2. Mr Hewitt was still employed at the council when the proceedings were commenced but retired approximately a year prior to the hearing commencing (Ms Edney: T540:5); 2. a minute on DC 975/WAL from the Deputy Shire Planner, Mr G Hand, dated 27 August 1986 relevantly stated that "in 1981, Consent was issued in relation to this site for the relocation of the weigh bridge, office-building, storage tanks and car park area. This was approved without conditions"; 3. In 1981, thecouncil was directed by the Minister under the relevant provisions of the EPAA to prepare a draft LEP for the release of the West Menai precinct for residential development and to prepare an environmental study for that purpose. The council appointed Neil Bird, who acted as its agent, to prepare and publish the environmental study, which resulted in a two volume report entitled West Menai Release Area Environmental Study published in January. Both volumes of the Study are replete with references to the Sandy Point Quarry and it is tolerably clear that in carrying out its official planning functions the council was aware of the quarry; was aware that it extended across the whole 38.12 ha area covering the land known as Lot 1 and Lot 2; and was aware that the quarrying would continue on that land for a number of years; 4. Readymix continued to quarry the land during the 80s and the 90s (see the 1984, 1986, 1988 and 1994 aerial photographs). By 1994, the quarry operations under permissive occupancy 76/31 (as distinct from the earlier ironstone gravel quarrying) had extended well inside Lot 2, and by 1999 these activities had extended about as far to the east as the bunded explosives storage area visible in photographs in evidence (Mr Moona: T848:19-849:19. Mr Moona also gave evidence that the quarry face was moving east: T852); 5. as the quarry moved east, consistent with the conditions attached to extension of the boundary of permissive occupancy 76/31 eastward into Lot 2, the disturbed land to the west of the quarry was being rehabilitated because, as Mr Moona stated in evidence, there was an obligation to do so (Mr Moona: T850:20-851:32 and see the 1994 aerial photograph); 6. by 1998 the quarry had extended well into Lot 2. This was known by the council (see the plan that was provided to Mr David White of Benedict by Mr Steve Cook, from the council, from the records of the Department of Lands); 7. on 18 June 1998 the General Manager of the council wrote the following letter to the Department of Land & Water Conservation. Given its importance, it is quoted in full (emphasis added): Attention Mr Phillip Pidgeon Dear Sir Old CSR Readymix Quarry Heathcote Road, Sandy Point I refer to your letter dated 13 May 1998 regarding the continued extraction of sandstone restriction upon the operational depth of the quarry. As you are aware Councils early records are incomplete and confirmation of depth rest placed on the original development consent granted in 1967 are difficult to confirm. The depth of the quarry was however, restricted by permissive occupancy 1976/31. Issued Walker Quarries Pty Ltd. Condition 46: TITLE:- 'The title is restricted to the surface and a depth of 15.24 metres below the surface'. It is considered that any development consent issued previously by Council would have been issued in accordance with the operational parameters of any prevailing permissive occupancy. (P.O 76/31 - operational depth 15.24 metres) Any proposal to expand the operational boundaries of the quarry requires further Development Consent from Council. Should you have any further queries please contact Mr M Adamson on 9710 0623. Yours faithfully, M Adamson For J W Rayner General Manager The letter is powerful evidence, in my opinion, of the existence of a development consent, in addition to the 1967 consent ("further Development Consent"), granted in respect of quarrying on Lot 2, which was commensurate with the operational parameters of permissive occupancy 76/31. The council properly concedes that its "early records are incomplete". Again, it is difficult to resist the application of the presumption of regularity to find that a consent to quarry Lot 2 was granted; 1. () in 2002, council Environmental Enforcement officers attended the Sandy Point Quarry in the course of carrying out official investigatory functions associated with illegal dumping in the quarry. By this stage the existing shot wall or quarry face was well inside Lot 2; and 2. () quarrying continued on both Lot 1 and Lot 2 in 2001, 2006 and 2010 (see the aerial photographs).
The conduct of the Department of Lands also, Benedict asserted, gave rise to an inference that consent had been granted for quarrying on Lot 2 prior to 1967. This was based on: 1. evidence that a private contractor, namely, Burfield, had obtained a large lease (a permissive occupancy from the Department of Lands) to a depth of 50 feet for the winning of gravel on Portion 456 (now Lot 2) as at 27 April 1954. At this time the CCPSO was in force and applied to the land. It allowed any use with development consent granted by the Cumberland County Council. It may be inferred, applying the presumption of regularity, that Burfield had therefore been granted development consent for that use, as required at that time (and at all times since 1951) under the CCPSO; 2. evidence that the council had purchased 120,000 tonnes of gravel from the quarry to the value of £15,000 in the year ending 31 December 1953 (and see the 1955 aerial photograph showing the gravel quarry at Menai on Lots 1 and 2) and a lesser amount in the calendar year ending 1956. This continued until at least 1961 (see the 1961 aerial photograph). It can be presumed that the council would not have purchased the gravel unless it had also satisfied itself that the operator had also obtained development consent from the County of Cumberland Council to extract it; 3. documents recording that the council was granted permission to carry out gravel extraction on Portion 456 (Lot 2); 4. evidence that quarrying was being carried out on Lots 1 and 2 as at 1970 (see the 1970 aerial photograph); 5. on 21 August 1998, licence L 309860 was granted to CNLA by the Minister for Land and Water Conservation (the land owner); 6. officers inspected the site in January 2002 when the quarry was operating across both Lot 1 and Lot 2; and 7. on 2 March 2010, licence Rl 454972 was granted by the Lands Office to Benedict for permitted uses including the extraction of material applying to the whole 38.12 ha area of the Sandy Point Quarry (Lots 1 and 2).
Finally, Benedict relied on the actions of the EPA in granting an EPL for the quarry on Lot 2 as evidencing the existence of lawful development consent for the operation of the quarry on both lots in accordance with the presumption of regularity.
The actions of the EPA amounted to, Benedict submitted, a representation to it, and to all the world, that there was consent for quarrying and extractive industry on Lot 2.
As at 1997, s 50 of the POEOA relevantly provided as follows: (1) This section applies to development that cannot be carried out without development consent under the Environmental Planning and Assessment Act 1979. This development is called controlled development in this section. (2) A licence that relates to controlled development must not be granted or varied (other than on the initiative of the EPA) by the appropriate regulatory authority, unless development consent has been granted for the controlled development. However, this section does not prevent the consideration of a licence application by the appropriate regulatory authority before development consent is granted.
Section 50 as originally enacted referred only to the grant of an EPL, and not any variation of it. However, as of 1 May 2006 the provision was amended to expressly include variations within its ambit (Weston Aluminium v Environmental Protection Authority; Weston Aluminium v Alcoa [2007] HCA 50; (2007) 239 ALR 641 at [35] and [36]).
The administration of the EPL by the EPA therefore allows a rebuttable inference to be drawn that the quarry operations on Lot 2 had planning approval. In particular: 1. on 29 June 1983 the State Pollution Control Commission of New South Wales granted Readymix licence 01924 under the then State Pollution Control Commission Act 1970, which was an EPL applying to the whole quarry and which could not be granted without an underlying development consent. The EPL was located on council file HB 975/WAL; 2. the EPL was transferred to the CNLA on 1 July 1998; 3. throughout the 1980s and 1990s the State Pollution Control Commission of New South Wales and the EPA issued various licences under EPL1924 under the Clean Air Act 1961 and the Noise Control Act 1975. These licences refer almost uniformly to the Sandy Point Quarry premises, that is to say, Lots 1 and 2; 4. on 20 March 2002 the EPA varied the EPL and the EPL recorded the subject premises as being located on Lot 456 (in other words, Lot 2). Again, pursuant to s 50 of the POEOA a licence could not be granted or varied unless the scheduled activity had planning approval. The EPA's records listed, and licensed, the premises as Lot 456 DP 752034, or Lot 2; and 5. the EPL continued through to at least 29 June 2014.
In my view the evidence relied upon by Benedict is compelling. Applying the presumption of regularity as elucidated above by the authorities, I readily infer that development consent has been granted for quarrying on Lot 2. This presumption has not been rebutted to the criminal standard by the evidence relied upon by the council.

[102]

The Council Has Not Disproved the Existence of a Consent to Quarry on Lot 2

As the council properly stated, the evidence that there was no development consent either to quarry on Lot 2, or for the construction of the bund on Lot 2, was largely circumstantial. But as the Court of Criminal Appeal opined in Wood v The Queen ([2012] NSWCCA 21; (2012) 84 NSWLR 581 at [51]-[53]): 51. A case is not defective or bound to fail merely because it relies upon circumstantial evidence to the exclusion of direct evidence. The strength of circumstantial evidence lies in its ability to show that, "according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed": Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 375 (Dixon J). It has been said that "circumstantial evidence is very often the best [evidence]": R v Taylor, Weaver and Donovan (1928) 21 Cr App R 20 at 21 (Hewart LCJ). 52. When, as here, the case against the accused is entirely or substantially circumstantial, "the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused":Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104 (Gibbs, Stephen and Mason JJ) citing Peacock v The King[1911] HCA 66; (1911) 13 CLR 619 at 634; see also Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 252. That statement of principle is uncontroversial. It is really "no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt": Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495 at 502 (Mason CJ, Dawson and Toohey JJ) quoting Shepherd at 578 (Dawson J). 53. At the same time, the trier of fact must bear in mind that a circumstantial case is to be considered holistically: R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [48]-[49] (Gummow, Hayne and Crennan JJ). Putting to one side for the moment "indispensable" intermediate facts (as to which see Ground 5), it would be wrong for a jury to acquit an accused merely because it harbours reasonable doubts about some inculpatory evidence, though it ignores or unduly minimises other, more compelling evidence of the accused's guilt. As it is often the case that "one piece of evidence ... resolves doubts as to another" ( Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521 at 535 (Gibbs CJ and Mason J)), it is necessary to weigh and consider the totality of the evidence: Hillier at [48]-[49]. In doing so, the finder of fact ought not stretch credulity or engage in tortuous reasoning in order to explain away each and every individual circumstance as being consistent with innocence: R v Micallef [2002] NSWCCA 480; (2002) 136 A Crim R 127 at [42] (Dunford J); Burrell v R [2009] NSWCCA 193 at [55] (Giles JA).
Despite these words of caution, given the strength of the evidence relied upon by Benedict detailed above, there is no need to "stretch credulity or engage in tortuous reasoning" to find, as I do, that the council has failed to negative the rational hypothesis that a consent was issued to quarry over Lot 2. Put another way, the council had failed to prove beyond reasonable doubt that no consent was granted for the carrying out of development on Lot 2 that would permit the construction of the bund wall. This is sufficient to dismiss the prohibited development charge.

[103]

The Conditions of the 1967 Consent Authorised the Construction of the Bund

Finally, and in the alternative, Benedict submitted that the 1967 consent for the extraction of rock ballast and filling on Lot 1 authorised the construction of the bund wall on Lot 2.
The 1967 consent was subject only to two conditions: one dealing with planning gain (the equivalent of a s 94 contribution condition requiring the person acting on the consent to pay for the cost of road repairs caused by the approved use); and the other providing as follows: 1. Compliance with any requirements of the Shire Engineer and the Department of Lands.
The 1967 consent expressly stated the reason for this condition, namely, "to ensure compliance with the requirements of Council and the Department of Lands".
Attempting to apply the test in Newbury District Council v Secretary of State for the Environment [1981] AC 578 (summarised by Pain J in Community Association DP 270253 v Woollahra Municipal Council [2013] NSWLEC 184 at [61]), Benedict argued that condition 1, properly construed, was ambulatory insofar as it was a reasonable condition serving a planning purpose that was reasonably related to the permitted development. Accordingly, it submitted that condition 1 validly authorised the construction of the bund because it was a requirement of the Department of Lands at the time to build such a structure.
As has been explained above, by 1976, upon the granting of permissive occupancy 76/31 to replace permissive occupancy 66/379, the Department of Lands imposed a requirement that the extractive operations be extended into Lot 2 according to a regime specified upon the granting of permissive 76/31 by plans prepared by the Homesites Branch of the Department (condition 32). The terms and conditions of permissive occupancies 66/379 (which may only be presumed and are not known because the permissive occupancy was not on the council's files) and 76/31 required the securing of the site and the taking of adequate safety precautions. Thus, condition 19 of permissive occupancy 76/31 required the tenant to take adequate precautions to prevent access to the premises by unauthorised vehicles for the purpose of removing material.
The requirements imposed by the Department of Lands have continued up to the present day. Consistently, the conditions of the licence currently applying to the land (Lots 1 and 2), and governing Benedict's occupation of the land and operation of the quarry, namely, licence RI 454972 dated 2 March 2010, require the following: 55. Holder to erect barricades etc Where the Premises or any part of the Premises become unsafe, hazardous or dangerous the Holder will forthwith erect such warning signs and barricades as may be necessary until the Premises are rendered safe. … 66. FENCING (a) Before commencing or proceeding to conduct operations on the Premises the Holder will do everything reasonably necessary to obviate the risk of injury to persons and stock. (b) The Holder will at all times take adequate precautions to prevent access to the Premises by unauthorised persons and vehicles for the purpose of removing Material. …
To limit condition 1 to requirements of the Department of Lands and council that were carried out physically on Lot 1 to the exclusion of works being carried on Lot 2 was, Benedict argued, impractical when regard was had to the requirements imposed by the Department of Lands. It followed that there was a clear planning purpose in imposing condition 1 which was reasonably related to quarrying on Lot 1.
Benedict further relied on the fact that there were no express words limiting the area of the 1967 consent's application to Lot 1, and moreover, that condition 2 applied to the cost of road repairs that, as a matter of logic, extended the operation of that condition beyond Lot 1. Both this textual and contextual indicator suggested that condition 1 was to be construed as an ambulatory condition.
It follows that condition 1 of the 1967 consent authorised construction of the bund as a structure implementing a requirement of the Department of Lands as expressed in the former permissive occupancies and the presently applicable Crown land licence.
In addition, Benedict submitted that it had always been a requirement of permissive occupancy 76/31 to comply with the Homesite Plans, and this has a purpose relating to public safety and the rehabilitation of the land. The requirement to quarry on Lot 2 pursuant to those Homesite Plans was also a requirement that constitutes a condition on the continuation of quarrying on Lot 1 by reason of condition 1 of the 1967 Consent. By authorising quarrying or extractive industry on Lot 2 in this way, condition 1 renders lawful that activity on Lot 2. Therefore, condition 1, when considered with the terms of the current Crown licence that approves extractive industry across the whole 38.12 ha parcel, makes quarrying on Lot 2 a legal use of that land.

[104]

Applicable Principles of Construction of Development Consents

The principles of construction of development consents are well known. They were recently and comprehensively discussed in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 (at [93]). More recently the principles were summarised by Biscoe J in Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114, which I respectively adopt (at [39]-[44] and [46]-[48]): 39. 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 that evidence admissible in relation to construction which establishes, or helps 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. Thus evidence of the nature of the site would always be admissible for this purpose, as would be, in appropriate cases, evidence as to the meaning of the marks on plans, or indeed, the meaning of the absence of particular marks": Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632 at 637 (Hope JA). 40. A development consent is to be construed according to its terms, having regard to its enduring nature. A development consent has an enduring nature because it is not personal to the applicant 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, 48 NSWLR 498 at [23]; Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17, 130 LGERA 508 at [4]: Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277 19 LGRA 321 at 324 (Else-Mitchell J). The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money acting upon it who and is likely to wish to sell the land sooner or later: House of Peace at [41]. 41. A development 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]; Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160, 167 LGERA 395 at [96]-[99] and [105]. 42. Any lack of clarity or certainty in a council development consent is the responsibility of the council and it must take the consequences: Royal Ryde Homes at 324. 43. As a development consent is a document in rem, communications between the parties do not form part of the matrix relevant to construction: Westfield Management at [41]. 44. As a general rule, a development consent, being a public document operating in rem for the benefit of third parties, 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, at least 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, 195 LGERA 182 at [44]; Shell Co of Australia at 637. … 46. Plans and other documents may be incorporated in a development consent expressly or by necessary implication: Allandaleat [24], [43]-[48], [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]. 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. In that case, a development application for a laundry stated the proposed working hours but the record of the development consent did not refer to working hours. Else-Mitchell J held that the consent did not include any limitation of working hours. For an analysis of the incorporation principles and how they have played out in the cases, see Lismore City Council v Ihalainen (No 2) [2014] NSWLEC 198 at [93]-[114] (Biscoe J). 47. The ordinary rules of construction and principles of interpretation apply to a development consent as with any other statutory instrument: Ko-veda at [97]-[99]. Like all legal documents, a development 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 one provision, where it is necessary to do so to avoid absurdity or inconsistency with the rest of the instrument: Tempe Recreation at [53]-[54]. 48. A development 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 per Stein J; Wingecarribee Council v CSR Limited [1993] NSWLEC 184 per Stein J; Katoomba Gospel Trust v Blue Mountains City Council [1994] NSWLEC 107 per Talbot J; Grace Bros Pty Ltd v Willoughby Municipal Council (1980) 44 LGRA 400 at 406 per Wootten J (SC/NSW); Maybury v Weston Aluminium (Producers) Pty Limited [1998] NSWLEC 17 per Talbot J. However, the question whether development is "generally in accordance" with approved plans is one of fact and degree in the context of the overall development: Oshlack at 196; Wingecarribee.
These principles were recently adopted and applied by Robson J in Pasminco Cockle Creek Smelter Pty Limited (subject to a Deed of Company Arrangement) v Lake Macquarie City Council [2016] NSWLEC 143 at [62]). In that case his Honour elaborated further on when it is legitimate to have recourse to extrinsic evidence when construing a development consent (at [88]): 88. I recognise that authorities which have incorporated a document by way of necessary implication have generally only done so with regard to documents which were available at some stage before consent was granted, and usually as part of a development application: See for example Allandale at [46]-[49] (Meagher JA); ANL at [46] (Biscoe J); Neighbourhood Association DP 285249 v Watson (2008) 162 LGERA 322; [2008] NSWSC 876 at [388] (Biscoe J); Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd (2006) 148 LGERA 439; [2006] NSWCA 273 at [36]-[42]; Winn v Director-General of National Parks & Wildlife (2001) 130 LGERA 508; [2001] NSWCA 17 at [200] (Stein JA); Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 at [407]-[408] (Handley JA, with Cripps and Clarke JJA agreeing); Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at [433]-[434] (Hope J); Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 at [323] (Else-Mitchell J).
Applying these principles to condition 1 of the 1967 consent there is no warrant whatsoever for the construction of condition 1 posited by Benedict. This is because, first, to do so would result in a lack of clarity or certainty in the condition, as its content changed over time depending on the particular licence applying to the land. Far from achieving a practical result, impractical ambiguity would ensue. And second, the construction is premised on, by necessary implication, the incorporation into the 1967 consent of extrinsic material (permissive occupancy 76/31 and subsequent licences) which were not in existence before the 1967 consent was granted.
Finally, I do not understand how the Newbury line of authority assists Benedict in this instance. That case, and the cases that have subsequently applied it (see, for example, Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 at [57] per McHugh J), concern the legal validity of a condition of consent. There is no challenge to the validity of condition 1 of the 1967 consent in the present case.
I therefore do not find that the 1967 consent authorised the construction of the bund on Lot 2.

[106]

The TPO Charges

The council conceded that if it failed in respect of the prohibited development charge, it would fail also in respect of the four TPO charges because the clearing of the bushland vegetation and trees the subject of those charges was, on any view, ancillary to the construction of the bund wall on Lot 2 (T1112:15-30). This is unarguably correct.
In light of the conclusion that I have arrived at concerning the prohibited development charge, viz, that it fails, the council cannot succeed in its prosecution of the four TPO charges, and they too must be dismissed.
That said, in case I am in error in dismissing the prohibited development charge, and in light of the evidence adduced and the submissions put by the parties in respect of the TPO charges, I will nevertheless proceed to consider Benedict's liability in respect of those alleged offences.
By way of amended summons in proceedings 2016/155588, the council charged Benedict with two offences, namely, that, from about 1 August 2010 and continuing until about 16 September 2010, at Menai, it committed an offence against s125(1) of the EPAA, because it did the following things, which were forbidden by the TPO: 1. that without the prior written consent of the council it injured and removed bushland vegetation contrary to cl 2 of the TPO; and 2. that without the prior written consent of the council it injured and removed trees contrary to cl 2 of the TPO.
Further, by way of the summons in proceedings 2016/155707 the council charged Benedict with two additional offences, namely, that, from about 3 June 2011 and continuing until about 23 October 2011, at Menai, Benedict committed an offence against s 125(1) of the EPAA, in that it did the following things, which were forbidden by the TPO: 1. that without the prior written consent of the council it injured and removed bushland vegetation contrary to cl 2 of the TPO; and 2. that without the prior written consent of the council it injured and removed trees contrary to cl 2 of the TPO.
Clause 13 of the SSLEP 2000 (made pursuant to s 26 of the EPAA) authorised the council to make the TPO.

[107]

Terms of the TPO

Clause 1 of the TPO is concerned with its application and states: 1. Where does this Order apply? The Sutherland Shire Tree and Bushland Vegetation Preservation Order (this Order) applies to all land within the Sutherland Shire Local Government Area.
The purpose of the TPO is identified in cl 2 (emphasis added): 2. What is the purpose of this Order? This Order specifically prohibits the pruning, ringbarking, chopping, topping, lopping, removal, root damage, poisoning, under scrubbing, clearing, transplanting, injuring or otherwise damaging or wilfully destroying any tree or bushland vegetation described in clause 4 unless written consent is obtain in accordance with this Order.
Clause 4 of the TPO identified the trees and bushland vegetation the subject of the order. It relevantly stated as follows (emphasis added): 4. Which Trees and Bushland Vegetation are affected by this Order? The Tree and Bushland Vegetation Preservation Order relates to any tree or bushland vegetation which satisfies any one or more of the following standards: (i) A single or multi trunked tree with a diameter of 100mm or more measured at 500mm above ground level. For the purpose of this clause, trees include native and non-native species except those declared as exempt in Clause 7. (ii) Any bushland vegetation, including mangroves. Bushland vegetation for the purpose of this Order means vegetation which is either a remnant of the natural vegetation of the land or, if altered, is still representative of the structure and floristics of the natural vegetation. For the purposes of this sub-clause, bushland vegetation includes trees of any size, shrubs and all herbaceous species; …
Clause 5 details when the council's consent is required for activity on private land, in particular it provided that: 5. When is Council's consent required? …. (b) Private land An application for Consent to carry out the pruning, ringbarking, chopping, topping, lopping, removal, root damage, poisoning, under scrubbing, clearing, and transplanting any tree or bushland vegetation on private land shall be made on council's Tree and Bushland Vegetation Preservation Order. The application is to be made by the owner of the land on which the action is to be carried out, or by any person with the consent in writing of that owner. Any Consent issued under this Order shall lapse if the actions referred to in, or permitted by, the Consent have not been carried out within 12 months from the date endorsed on the Consent. A development consent granted pursuant to the Environmental Planning and Assessment Act 1979 may also constitute by express words a Consent by Council Prohibited Actions.
As particularised, the four TPO charges are confined to the injury and removal of trees and bushland vegetation on the footprint of the bund wall on Lot 2.
As with the prohibited development charge, Benedict was concerned that the council had sought to fundamentally change its case by resiling from the position that, in relation to the TPO charges, the removal of the trees was lawful on Lot 1 because the 1967 quarrying consent applied to Lot 1, but was unlawful on Lot 2 because the 1967 quarrying consent did not extend to Lot 2. For the reasons discussed above, I do not understand the council to have altered its position as characterised by Benedict.
The elements of the TPO charges may be summarised as follows: 1. the council was authorised under the EPAA to forbid any matter or thing to be done. The TPO forbade the injuring of trees or bushland vegetation within the Sutherland Shire local government area; 2. that matter was forbidden to be done effective 13 July 2001, when council made the TPO. Under the TPO the following was forbidden under its terms: 1. unless written consent was obtained in accordance with the TPO, the injuring and removal of trees, namely, a single or multi-trunked tree with a diameter of 100mm or more measured at 500mm above ground level, other than trees of species declared as exempt under cl 7; and 2. unless written consent was obtained in accordance with the TPO, the injuring of bushland vegetation, namely vegetation, including trees, shrubs and all herbaceous species, which were either a remnant of the natural vegetation of the land or, if altered, were still representative of the structure and floristics of the natural vegetation; and 1. Benedict offended against that prohibition on land within the Sutherland Shire by: 1. without obtaining written consent in accordance with the TPO, injured a tree or trees with a diameter of 100mm or more measured at 500mm above ground level; 2. the trees injured were not trees of species declared as exempt under cl 7 of the TPO; and 3. without obtaining written consent in accordance with the TPO, injured vegetation which met the description of either: (1) a remnant of the natural vegetation of the land; or (2) if altered, was still representative of the structure and floristics of the natural vegetation.
Benedict admitted that prior to the construction of the bund wall it caused trees and vegetation present within the footprint of the bund wall on Lot 2 to be removed so that it could be built.
Benedict submitted that each of the TPO charges should be dismissed on the following bases: 1. first, in respect of the two charges alleging that it injured and removed bushland vegetation in contravention of the TPO, these should be dismissed because the council had not proven that the vegetation removed in the footprint of the bund wall met the definition of "bushland vegetation" contained in cl 4(ii) of the TPO; 2. second, all of the four TPO charges should be dismissed because the council had failed to prove that there was no development consent in force permitting the removal of the trees and vegetation the subject of the charges; 3. third, all of the TPO charges should be dismissed on the basis that council had failed to negate the possibility that there was a development consent in force with respect to Lot 2 which permitted the construction of the perimeter bund wall and the removal of trees and vegetation was ancillary to the construction of the bund; and 4. fourth, the council was prevented from contending that the removal of the trees and vegetation was not approved because it was precluded from contending that there was no consent to construct the bund on the grounds that to do so was an abuse of process.
Again, the council must negate all rational hypotheses consistent with Benedict's innocence beyond reasonable doubt.
In relation to the fourth contention, as with the prohibited development charge, it is unnecessary for me to determine (and I decline to do so for the same reasons) this issue because I have concluded that the construction of the bund on Lot 2 was lawful. The removal of the trees and vegetation was ancillary to the construction of the bund, and therefore that activity was also carried out lawfully.

[110]

Principles Applicable to the Interpretation of the TPO

The general principles relating to the interpretation of primary legislation (Acts of Parliament) are equally applicable to the interpretation of subordinate legislation such as cl 4(ii) of the TPO (Collector of Customs v Agfa - Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 398, Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101 at [19], Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379 at [36]-[46] and [63], Environment Protection Authority v Schon G Condon as liquidator for Orchid Holdings (NSW) Pty Ltd (in liq) [2014] NSWCA 149; (2014) 86 NSWLR 499 at [43] and [44] and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v State of New South Wales [2014] NSWCA 116 at [44]-[47]).
Thus, the task of construction must begin with the consideration of the text itself with recourse to its context, which includes the general purpose and policy of a provision, and of the enactment itself.
The determination of the purpose of the particular provision or statute may be found not only in an express statement of the purpose in the statute itself, but also by reference to textual and structural indicators, and where appropriate, by reference to extrinsic material.
The task is one of ascertaining the objective, and not the subjective, intention of those who promulgated the legislation (see generally the principles summarised in Commissioner of Taxation v Consolidated Media Holdings (ACN 009 071 167) Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39], Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 379 at [23]-[26], Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 88 ALJR 473 at [65]-[66] and Thiess v Collector of Customs [2014] HCA 13; (2014) 250 CLR 669 at [22] and [23]).
Having said this, it is legitimate to have regard to the fact that subordinate legislation is generally less carefully drafted than primary legislation and may therefore be construed having regard to more practical considerations, rather than by a rigorous examination of its language as might be more appropriate when construing an Act of Parliament.
In particular, it must be acknowledged that planning instruments are not always drafted with pellucid clarity or with a keen eye to taxonomy (Egan v Hawkesbury City Council (1993) 79 LGERA 321 at 331 per Meagher JA) and that "any attempt to always find planning logic in planning instruments is generally a barren exercise" (Calleja v Botany Bay City Council [2005] NSWCA 337; (2005) 142 LGERA 104 at [25]. See also Australian Tea Tree Oil Research Institute v Industry Research and Development Board [2002] FCA 1127; (2002) 124 FCR 316 at [37], Schon at [44] and Tovir Investments Pty Ltd v Waverly Council [2014] NSWCA 379 at [54] per Leeming JA)

[111]

The Meaning of "Bushland Vegetation" in the TPO

In considering the two limbs of the definition of "bushland vegetation" in cl 4(ii) of the TPO, assistance may be derived from the decision of Biscoe J in Pittwater Council v A1 Professional Tree Recycling Pty Ltd (No 2) [2008] NSWLEC 326.
Pittwater similarly concerned a prosecution for alleged unlawful clearing of bushland contrary to a council tree preservation. In the context of a no case to answer submission, his Honour was required to construe an almost identical definition of "bushland" appearing in the Pittwater Tree Preservation and Management Order 1996 in the following terms (at [4], emphasis added): 3. Trees to which the Order applies This Order applies to: (a) any tree or shrub, whether endemic, exotic or introduced species, not being a cycad or mangrove which has (i) a height exceeding three (3) metres, or (ii) a trunk, bole or branch girth exceeding 0.5 metres or which has a combined girth or each of two or more trunks or boles exceeding 0.5 metres, or (iii) a branch canopy width exceeding five (5) metres; (b) any cycad or mangrove irrespective of dimensions; (c) any bushland. 4. Definitions In this order: "Bushland" means land on which there is vegetation which is either a remainder of the natural vegetation of the land or, if altered, is still representative of the structure and floristics of the natural vegetation.
Construing the term "bushland", after noting that its proper interpretation was a matter of some difficulty (at [11]), Biscoe J held that the word "altered" in the second limb of the definition of "bushland" meant, as a minimum, "altered by humans" (at [9]). He further held that (at [14]): 14 As I have said, the word "altered" in the second limb of the definition of "bushland" in the tree preservation order should be construed as meaning altered by humans. Given the nature of the order, I accept the defendant's submission that "altered" in the second limb should be further construed as meaning altered in the context of urban planning. Thus it does not extend to alteration by Aborigines prior to white settlement, for example, by deliberate clearing of vegetation by fire. The first limb of the definition should, I think, be construed as concerned with pockets of natural vegetation that remain out of natural vegetation that has not been altered.
I propose to adopt Biscoe J's definition of "altered" for the purposes of cl 4(ii) of the TPO. The principle of comity applies and I do not consider that his construction of the term is plainly wrong; to the contrary, in my respectful view, it is plainly right.
Additional terms used in the definition of "bushland vegetation" in cl 4(ii) of the TPO are as follows: 1. "representative" - a word which should be given its ordinary meaning, which according to the Macquarie Dictionary (on-line ed) means "exemplifying a class; typical"; 2. "structure" and "floristics" - words which derive their meaning, in this context, from the discourse of botany; and 3. "natural vegetation" - an expression which should also be accorded its ordinary meaning, which in this statutory context (and consistent with the approach in A1 Professional Tree Recycling), is vegetation which is existing in or caused by nature that has been unaltered by humans in an urban planning sense in the post European settlement era.
Consequently, if it is determined that the "natural vegetation" is "altered" what is demanded by the definition of "bushland vegetation" in cl 4(ii) of the TPO is, in effect, a comparison between the structure and floristics of the natural vegetation, that is, the vegetation prior to alteration (in the sense described above in A1 Professional Tree Recycling), with the structure and floristics of the altered vegetation that was removed to construct the bund.

[112]

The Expert Evidence

In support of the proposition that there was "bushland vegetation" present in the footprint of the bund wall prior to its removal the council relied upon: 1. the expert ecological evidence given by the Manager/Principal Environmental Scientist in the Environmental Science & Policy Unit of the council, Mr Drinnan (see his affidavit sworn 4 July 2013). Mr Drinnan had been employed at the council for 19 years as at the date of his affidavit; and 2. the expert evidence of Dr Pamela Hazelton, a soil scientist (see her affidavits sworn 11 and 26 February 2014).
Benedict relied upon the expert evidence of Dr Robertson, an ecologist and the director of Cumberland Ecology (see his statement of evidence dated 27 May 2015).
Benedict submitted that Mr Drinnan was a "demonstrably biased expert", and contended that only very limited weight could be given to his testimony.
While I would not go so as far as Benedict in impugning Mr Drinnan's credit, there were a number of unsatisfactory aspects to his evidence that gives rise to a legitimate question as to its reliability and to Mr Drinnan's impartiality. As a consequence, where there is contest, I prefer the evidence of Dr Robertson, an ecologist with specific expertise in botany.
These aspects included: 1. first, Mr Drinnan deposed to having calculated that approximately 830 trees fitting the physical characteristics of a "tree" as described in cl 4(i) of the TPO, were removed in the footprint of the bund wall on Lot 2. This estimate was purportedly the result of a "tree survey" carried out by him on 5 July 2012. The survey was described by him as having been carried out in the following manner (see his July 2012 report which he adopted in his affidavit sworn 7 September 2012): In order to determine the average density of the trees on the site and surrounds, on Wednesday 5 July 2012 I conducted a survey of the outer perimeter of the site, measuring tree density per 100 square meters. I walked the perimeter of the site and measured within a 100 square metre area every 100 meters. This systematic sampling method ensured that I sampled a variety of sites that ranged from largely cleared, dissected by tracks and trails and largely undisturbed. This avoided any sampling bias, and ensured results were representative of average tree densities across the site and surrounds… The average tree density along the south eastern portion of the site is 5.3 trees per 100 square metres. The survey was claimed to have been undertaken by him on the south eastern perimeter of the site. However, what emerged from the evidence of Dr Robertson, and other evidence, was that Mr Drinnan did not carry out the exercise he claimed to have carried out in his written evidence: 1. first, it was physically impossible for him to have done so in the manner described. While Mr Drinnan sought to mitigate this impossibility orally by saying that he paced out the distances and that they were only approximate, given that he knew that this evidence was being prepared for the purposes of a criminal trial, this explanation is wholly inadequate in my view; 2. second, his written description of his methodology in his July 2012 report was erroneous in parts. For example, he initially claimed that he did not measure the south western perimeter of the site (only the south eastern perimeter); then he said that he had measured it using the GIS system; then he said that the notation "SW" on his spreadsheet denoting "south west" was a mistake. These mistakes lead to the inference that the survey he claimed to have carried out in fact occurred on the south western perimeter of the site and not the south eastern perimeter; 3. third, the extraordinarily high tree density results he recorded are not easily explained given the statistical range of possible outcomes identified by Dr Robertson (at [51]-[55] of his statement of evidence. Dr Robertson's estimate of tree densities was 1.9 per 100m² compared to Mr Drinnan's estimate of 5.3 per 100m²), whose evidence as to the statistical range was unchallenged. Mr Drinnan sought to explain the variation on the basis that the distribution of trees through that area was very patchy, a fact that was consistent with the aerial photographs in evidence (T199:33-50 and 384.6). But even assuming this to be the case, the explanation was contrary to his statement in his July 2012 report to the effect that the survey was systematic and "avoided any sampling bias". To the contrary, there was an inherent bias, a fact that Mr Drinnan accepted in cross-examination that was not identified in his report (T160:7-50). Mr Drinnan agreed that there was a high risk of sampling bias, a matter that he was aware of and that he did not disclose in his report. I agree with Benedict that there was no adequate explanation by Mr Drinnan for why he nominated a tree density of 5.3 trees for every 100m² without having subjected his tree density calculations to any statistical analysis of variability; 4. fourth, there is a dearth of reliable records for the survey, which, given the purpose for which it was being conducted, that is, a criminal prosecution, is, again, unsatisfactory. Mr Drinnan agreed that he was a meticulous recorder of diary notes during the relevant period (T115:12-15). However, there were no diary notes of his survey. This was because, he stated, he had taken notes in his notebook that day and he had designed a spreadsheet for the purpose of the survey (T117:11-15). But his original field notes could not be produced by him and the copy that was produced of his field notes for 5 July 2012, did not record a survey measuring quadrats or diameters of trees at the stipulated heights above ground. No photographs were taken by him and no GPS points were recorded; and 5. fifth, Mr Drinnan made errors, on more than one occasion, with respect to the day and date the survey was undertaken (T172:32-43). While I am not prepared to go so far as to find that, as Benedict urged, no survey whatsoever was undertaken by Mr Drinnan, I do accept that the survey results are unreliable. No doubt it was for this reason that they were eschewed by the council, who was content to rely upon the evidence of Dr Robertson in relation to the number of trees Benedict had removed; 1. second, Mr Drinnan deposed that in clearing the vegetation to construct the bund wall Benedict cleared 1.4 ha of vegetation constituting the Duffys Forest endangered ecological community ("the EEC") and that this could potentially impact adversely on the long term survival of the EEC within the subregion. He later abandoned this claim (see his 4 February 2014 affidavit), but only after Benedict presented expert evidence that it was wrong. Furthermore, he accepted that his erroneous conclusion was, to his knowledge, contrary to the characterisation of vegetation carried out in mapping in 2009 and 2011. In cross-examination the following exchange took place (T167:13-168:8): Q. I suggest to you that you are bias in giving evidence in these proceedings against the defendant. That's true, isn't it? A. No. Q. You maintain that, notwithstanding that you gave evidence that the vegetation removed in this area formed part of an endangered ecological community, and that the removal of the vegetation threatened the ongoing feasibility of the subregional population of that community and now knowing that that's wrong? A. I've changed my evidence in relation to that, yes. Q. But it would fair, wouldn't it, to consider your evidence concerning the impact that you said was likely to flow from the removal of part of an endangered ecological community as being bias evidence against the defendant? A. No. Q. But you drew that conclusion; that is, that the area cleared formed part of the Duffys Forest EEC contrary to the preceding surveys carried by Cumberland Ecology and the Sydney Metropolitan Catchment Management Authority; that's right, isn't it? A. The vegetation survey that we undertook predated all of those. Q. What's the answer to my question? A. What was your question again? BUCHANAN: With the greatest respect, is that not an answer to the question? Why is that not an answer to the question? Saying that the premise of your question is without foundation? HER HONOUR: No. It is not. I reject that, Mr Buchanan. If you could ask the question again, please. HOWARD Q. You accept, don't you, that when you prepared your affidavit of 4 July 2013, the characterisation of the vegetation in the area where it was removed in the bund wall disturbance footprint as Duffys Forest EEC was inconsistent with the characterisation of vegetation in that area by Cumberland Ecology previously undertaken. You accept that, don't you? A. Yes. Q. You accept also that it is inconsistent with the characterisation of the vegetation in that area that had been previously undertaken by the Sydney Metropolitan Catchment Management Authority? A. The draft mapping, yes. 1. third, no doubt as a result of his lengthy employment with the council, Mr Drinnan developed a strong sense of duty to serve the council's interests (T81:15-18). Indeed he considered himself to be part of the prosecution team working on the matter for the council under the supervision of the council's development compliance officer, Ms Vanessa Bailey, and the council's principal lawyer, Ms Janelle Amy (T81:39-43 and 134:4-8). Although Mr Drinnan claimed that this perception of himself did not diminish his capacity to be an objective and impartial expert witness, I cannot agree. In my opinion, Mr Drinnan's impartiality was, albeit unconsciously and no doubt unintended, diminished in these circumstances. His willingness to assist in the prosecution of Benedict and his view that he played a compliance role, in addition to his role as impartial scientific expert, is reflected in his willingness to change his initially recorded characterisation of the bund from a "large wall" and a "bund wall", a description that he agreed carried some connotation of the purpose of the structure (T84:5-7), to "mound", "earthworks" or "fill material" at the direction of Ms Bailey; 2. fourth, Mr Drinnan misrepresented in his resume annexed to his affidavit sworn 4 July 2013, and in the body of his affidavit (at paragraph 3) that he was presently enrolled in a PhD program at the University of Wollongong. In fact he had discontinued his doctorate studies in 2005. Although Mr Drinnan preferred to describe himself as having "deferred" (72:9-40 and 194:42-195:36), I do not, after such a considerable period of time, consider this to be accurate, and in any event, was not what was stated in his resume; 3. fifth, in his affidavit sworn 7 September 2012 (at paragraph 9) he deposed that he had observed that "several" trees under the TPO had been removed and were stockpiled on the site. Whereas, by 29 November 2012, the estimate had become "several hundred" trees. This latter version was not, however, included in his affidavit sworn 4 July 2013. Mr Drinnan unconvincingly stated that he had made the change by way of clarification because the presence of several hundred trees had made a lasting impression on him when he had inspected the site (T178:1-26). But this impression was not corroborated by his own notes of the inspection (see his affidavit sworn 4 July 2013); 4. sixth, Mr Drinnan exaggerated his familiarity with the site having stated in his 4 July 2013 affidavit (at paragraph 8) that, "I am familiar with the Site having visited the Site and conducted surveys of the Site and surrounds on numerous occasions over the past 15 years". In cross-examination, Mr Drinnan was requested to identify the occasions prior to making the above statement in sworn affidavits when he had conducted surveys of the Sandy Point Quarry and of the surrounds and the occasions on which he had inspected the site. It was eventually elicited from him that over the 15 years preceding the swearing of his affidavit on 4 July 2015 (T182:23-27 and 184:43-46): 1. he had carried out only one survey of the Sandy Point Quarry, namely, the West Menai survey of 2002; and 2. insofar as the surveys of the surrounding area involved surveys of vegetation, he had carried out only two such surveys: the West Menai survey of 2002; and the tree density survey he says he undertook on 5 July 2012. Mr Drinnan unconvincingly sought to defend his use of the phrase "numerous occasions" by saying that "numerous" means more than one "in this instance" (T181:30-43); 1. seventh, the opinion that the vegetation removed to construct the bund wall on Lot 2 fell within both limbs of the definition of "bushland vegetation" was first expressed in Mr Drinnan's affidavit of 7 September 2012. It was repeated in his affidavit of 4 July 2013. In each of those affidavits, in giving that opinion, Mr Drinnan commenced his reasoning by stating that, "in relation to Clause 4(ii) of the TPO, when I inspected the site, I also observed that bushland vegetation that met the requirements of Clause 4(ii) of the TPO had also been removed and damaged by the works". On any reasonable interpretation, this statement was intended to convey that when Mr Drinnan inspected the site, he had in his mind the issue of whether the vegetation met the requirements of the definition of "bushland vegetation", and that he formed a positive opinion that it did. However, the effect of the evidence elicted from him in cross-examination was to concede that he did not turn his mind to whether the vegetation in the vicinity of the eastern bund wall met the defining characteristics of "bushland vegetation" until after he inspected the site (T185:34-186:12). Furthermore, prior to making the statement, Mr Drinnan did not go to the site or its surrounds to inspect or gather data for the purpose of determining whether the vegetation met the defining characteristics of "bushland vegetation". His conclusion was premised upon the outcome of an unspecified desktop review based on his recollection of a limited number of earlier inspections carried out for different purposes and on a poorly articulated review of "studies by others" (T181:1-3); and 2. eighth, Mr Drinnan agreed that he was a general ecologist with no specialisation in botany (T80:30).

[113]

The Natural Vegetation was Altered

There can, in my opinion, be no doubt whatsoever that the vegetation removed in the footprint of the bund has been, altered by human activity in the period since European settlement.
Not only is it obvious that the vegetation on the Sandy Point Quarry, including in the footprint of the bund wall has been altered by the clearing which took place in the 1950s through to the 1970s, but the soil across the whole of Lot 2 was also extensively disturbed by reasons of the quarrying for ironstone gravel that took place on the site during that period.
The timing of the clearing and ground disturbance visible in the aerial photos is consistent with the dates of the grants of the various permissive occupancies for gravel extraction over Portion 456. The clearing is first visible in the 1955 aerial photograph and this is consistent with the granting by the Crown to Burfield of permissive occupancy 53/125 over Portion 456. This permissive occupancy was granted for the purpose of winning gravel.
The continuing and more extensive clearing is evident on the 1970 aerial photograph and the terms of permissive occupancies 66/92 and 66/281.
The pattern of disturbance to the land of comprising Point Quarry continued from the 1970s through to the present date, with the series of permissive occupancies and licences granted by the Crown for the quarrying of crushed rock and sandstone, which, as the history of the site detailed for the purposes of the prohibited development charge establishes, from 1976 (commencing with permissive occupancy 76/31 granted to Walker Quarries Pty Ltd) saw the process of extending the quarrying from Lot 1 in an easterly direction over the land now known as Lot 2.
The Sandy Point Quarry (comprising the land now known as Lots 1 and 2) has been used as an indivisible quarrying land unit since 1976 and activities associated with that quarrying have been taking place on Lot 2 and in the area where the bund wall is now located.
The land has also been disturbed by its use for the riding of trail bikes, quad bikes and 4wheel drive vehicles, creating a network of tracks carved into the soil (see, for example, the evidence of Mr Moona, the oral evidence of Ms Harries at T282:25-30, NSW Police records, and the evidence of Dr Robertson based on his studies in the area in 2011). As a consequence, there are a multitude of tracks and trails that have been carved out of the vegetation, causing erosion and changing the geology and drainage of the area (see the oral evidence of Dr Robertson at T:835:29-826:19).
The aerial photographs before the Court make it tolerably clear that the vegetation that existed in the footprint of the bund wall has been altered during the 60 year period in which the Sandy Point Quarry has been operating since the 1950's (compare the 1949 aerial photograph with the 1955 aerial photograph).
Even Mr Drinnan agreed that, looking objectively at the aerial photographs, the area of the Sandy Point Quarry has been a highly disturbed landscape for approximately 50 years (T128:35-39).
Dr Robertson gave oral evidence that the vegetation in the area of the footprint of the bund wall on Lot 2 as it existed prior to it being removed to construct the bund wall has been modified (T732:18-33 and 772:36-42), or in other words, "altered". The community of vegetation that had been present was a modified form of Sydney Hinterland Dwarf Apple Heath Woodland.
In the result, there can be no doubt whatsoever that the natural vegetation was "altered" and that therefore only the second limb of cl 4(ii) of the TPO applies.
In order to compare if the altered vegetation was still representative of the structure and floristics of the natural vegetation it is necessary to have regard to the structure and floristics of the natural vegetation.

[114]

Structure and Floristics of the Natural Vegetation

Dr Robertson defined "structure" in the context of cl 4(ii) of the TPO as "the presence of multiple layers or strata within the vegetation community and the average height and cover of each of these strata. Strata within a vegetation community includes tree/small tree layer, shrub layer, groundcover layer and presence of vines or climbers." (see his statement of evidence)
He defined the term "floristics" as, "the species present in the vegetation community and the relative abundance of these species within an area".
Dr Robertson's evidence in both respects was not challenged.
By contrast, in none of the affidavits Mr Drinnan deposed to in the proceedings was an explanation of what was meant by the term "floristics" proffered by him. When cross-examined about what he understood to be the meaning of "floristics" in the context of clause 4(ii) of the TPO, Mr Drinnan gave this evidence (T187:23-49): Q. Is this the position, Mr Drinnan that you've sworn five affidavits in these proceedings in each of which you opine inter alia that vegetation removed for the construction of the bund wall was representative of the structure and floristics of the natural vegetation of the land without ever having explained what you meant by the term floristics? A. Yeah, probably not. Floristics I thought was a fairly standard term, it means the species that make up that particular community. Q. Is that what you tell the Court you understand to be meant by the term, floristics, the species which make up a community? A. Yes. Q. I want to suggest to you that you've left out a very important component of floristics in describing it that way, namely the relative abundance of the species within an area. That's right, isn't it? A. Not necessarily, no. Q. You don't accept that floristics in the discipline of botany connotes both the species which are present in a community and the relative abundance of the species within an area? A. No, the floristics basically means the species that make up that community. Q. I want to suggest to you that by omitting from your understanding of the word floristics the relative abundance of species within an area you are demonstrating a basic lack of expertise in respect of that part of the discipline of botany which deals with floristics, do you accept that? A. No.
Similarly, Mr Drinnan was unable to articulate what he understood the term "structure" of vegetation meant. When cross-examined as to his understanding of the term as used in cl 4(ii) of the TPO, Mr Drinnan identified the types of vegetation that "generally make up the structure of the vegetation", namely, the tree component, the shrub component, the ground cover component, and vines and scramblers (T188:35-49). Unlike Dr Robertson, he did not recognise that "structure" in the discourse of vegetation referred to the presence of multiple strata within a vegetation community and included the average height and cover of each of the strata.

[115]

Vegetation Mapping

Dr Robertson gave the following evidence with respect to vegetation mapping (T722-723). In 2001, when the TPO was made, vegetation mapping was widespread across the State, both as an activity, and as a product of that activity. There are now a variety of different maps available of many areas of New South Wales.
Vegetation mapping essentially involves the characterisation of vegetation by reference to commonly understood, agreed, or promulgated classes of vegetation communities. The process involves either mapping a particular vegetation unit by reference to existing classes of vegetation classified by vegetation community, mapping with the view to determining those very classes, or determining whether existing classes should be varied in some way. He agreed that vegetation mapping as it has been, and is, conducted in New South Wales is an important tool for environmental impact assessment and vegetation management.
The plant communities that are referred to in vegetation mapping are given a name. But that name can change. The most dominant or indicative plant species in the different vegetation layers are typically used to define the scientific name of a plant community. Each vegetation community is mapped by reference to layers.
In September 2009, the Department of Environment and Climate Change and Water ("DECCW") released a draft report entitled The Native Vegetation of the Sydney Metropolitan Catchment Management Authority Area ("the draft SMCMA 2009 report"). Volume 2 of the draft SMCMA 2009 report contained maps and vegetation profiles which described each of the vegetation communities occurring within the Sydney Metropolitan Catchment Management Authority ("SMCMA") Area. The draft SMCMA mapping identified vegetation communities and boundaries between communities. The SMCMA 2009 draft report mapping was substantially confirmed with the release of the report in final form in 2013.
The significance of the SMCMA mapping is not only its broad acceptance amongst ecologists, but also that it propounds the structural and floristic criteria for each vegetation community.
The SMCMA mapping contains, for each vegetation community profile, a map of the SMCMA area with colour coded markings as to location and a brief identification of the primary locations where the community is to be found.
The SMCMA draft mapping in 2009 contained a profile for a community called Hinterland Sandstone Dwarf Apple Heath Woodland ("Dwarf Appeal Heath Woodland"). The central features of the Dwarf Apple Heath Woodland community are: 1. the leathery, grey green leaves of the dwarf apple (Angophora hispida); 2. its small trees form dense clusters amongst other common sandstone heath species such as banksias, tea trees, cone sticks and hakeas; 3. at times a low open canopy of broad-leaved scribbly gum (Eucalyptus haemastoma) and red bloodwood (Corymbia gummifera) may also occur; 4. the broad sandstone ridges of the northern and western Woronora Plateau encompass the primary distribution of the community within the study area, although there are small disjunct passages found on the northern Georges River; and 5. it is commonly situated on skeletal soils on broad, undulating ridgelines, with crests that have a distinctive mantle of ironstone fragments above a highly leached white sandy soil.
The final SMCMA report released in 2013 somewhat confusingly renamed the community "Sydney Hinterland Dwarf Apple Heath Woodland", but it was common knowledge that there were only minor changes made to the profile and minimal changes to the relevant key features of the vegetation community.
Dr Robertson's study area (which was defined by him in his written evidence as "an area encompassing the section of the bund wall located along the eastern and south-eastern boundary of Sandy point Quarry, the drainage ditch and access path immediately east of these sections of the bund wall, and adjacent bushland vegetation up to a distance of 10m east of the access path") was "within the northern and western Woronora Plateau", that is, it was included in the area identified by SMCMA mapping as containing Dwarf Apple Heath Woodland. Dr Robertson acknowledged that it was identified in this manner notwithstanding the ironstone gravel extraction which had historically occurred there.
Dr Robertson agreed that the historic ironstone gravel extraction would not prevent the vegetation from being officially classified by the SMCMA mapping as Dwarf Apple Heath Woodland. Moreover, he considered the structural and floristic criteria of the study area to be sufficiently obvious as to qualify it as Dwarf Apple Heath Woodland (T732:40).
Dr Robertson accepted that there was a degree of variability, insofar as a vegetation community was described in the SMCMA mapping profile, in the floristic composition and structure of a vegetation community. Furthermore, he accepted that modification of the floristics and modification of the structure of a given vegetation unit would not necessarily change the vegetation community to which that unit belongs (T782:50-783).
This conclusion was consistent with his own work. Dr Robertson was the principal investigator in the study leading to a report by Cumberland Ecology entitled Heathcote Ridge, West Menai - State Significant Site, Ecological Assessment in 2011 ("the 2011 Cumberland Ecology report"). The study was conducted for Gandangarra Local Aboriginal Land Council.
The 2011 Cumberland Ecology report mapping of the Heathcote Ridge, which included the area immediately to the east of the bund wall, is the most detailed mapping of the area available. It is more detailed than the mapping of that area by SMCMA. The report mapped the vegetation in the area immediately to the east and north-east of the bund wall as the vegetation community known as Dwarf Apple Heath Woodland. It noted that the area had been extensively disturbed. Dr Robertson acknowledged that the vegetation mapped in the 2011 Cumberland Ecology report was within the study area of this statement of evidence.
Critically, however, Dr Robertson drew a distinction between mapping of vegetation communities and the classification of the vegetation for the purposes of cl 4(ii) of the TPO.
It was Dr Robertson's ultimate conclusion that he could not state with a suitable degree of scientific confidence that the vegetation present in the footprint of the bund wall prior to its removal was still representative of the structure and floristics of the unaltered natural vegetation. In this regard, he noted that there was no available vegetation data from ground surveys of the area taken prior to quarrying in the 1950s.
He summarised his findings in his statement of evidence in the following way: 61. Based on my review of available vegetation data from the previous surveys by Cumberland Ecology and data and observations from the 19 May 2015 survey, it is my expert opinion that the bushland in the study area as well as the vegetation that would have existed within the disturbance footprint consists of a vegetation unit that is largely dominated by endemic native species with a low occurrence of exotic species and non-endemic natives. Based on available vegetation data and SMCMA mapping vegetation descriptions, this vegetation unit is a modified form of the SMCMA community Sydney Hinterland Dwarf Apple Heath Woodland. 62. Current available vegetation data and aerial imagery does not provide a clear indication if the vegetation unit that existed within the study area and disturbance footprint prior to any historic clearing events was a heathland, heathy woodland, open woodland or forest community. No vegetation data collected from on ground surveys of this area prior to quarrying is available. Furthermore the removal of overburden from previous quarrying activities would, as a minimum, have altered the geology (by removing ironstone gravels) and drainage of the area as well as removed/destroyed some proportion of the seedbank that would have existed in the top soil. 63. It is my opinion that the vegetation in the study area and the disturbance footprint cannot confidently be considered a remnant of the natural vegetation of the land as defined in Clause 4(ii) of the TPO due to the historical clearing and quarrying that has occurred in the area and the likely ramifications for vegetation floristics and structure. 64. While the bushland vegetation within the study area and surrounds is represented by species that are known to have historically occurred in the area, there is a high degree of uncertainly on what the structure and floristics of the original 'natural' vegetation of the area would have been. Therefore, it cannot be concluded with a suitable degree of scientific confidence, that the current vegetation unit is an altered but representative form of the structure and floristics of the natural vegetation as required under Clause 4 (ii) of the TPO as it is unclear if the original vegetation was a woodland, a heathland, a heath/woodland, an open forest, or various mixtures of these.
In respect of his conclusion that the vegetation had been modified, he stated orally (T732:26-33 and T772:36-773:3, respectively): Q. What did you mean by modified form? A. When you talk about a plant community, you are referring to an entity that has floristics and structure. Floristics means the composition of plant species, the mixture of plant species, that characterise that plant community, and the structure refers to the height and density and the number of layers in that vegetation. So, I suppose, when I was referring to like a modified form of that community, it may well have been modified in terms of some species might not be present after the disturbances that have been shown in that [1970] aerial photograph, so the number of species can drop out and also, the structure will be different from the original structure. … Q. Is it possible that you didn't truly believe that the vegetation that you looked at in your 2015 study was a modified form of the SMCMA community Sydney Hinterland Sandstone Dwarf Apple Heath Woodland; that is just said so in order to advance the interest of the party that called you? A. No. That's absolutely not true. The vegetation in that area and across a lot of the areas of the site is quite highly modified by all sorts of activities, and as I've explained to you, there's two different purposes to the report, the two different reports that we're talking about now, and we've taken a precautionary approach and mapped, you know, broad areas of vegetation of that Heath - for the 2011 study and I see no real problem with that, and that was for the purposes of taking on the assumption that we - we called it Angophora Hispida-Eucalyptus Haemastoma or the Dwarf Apple Heath Woodland, we didn't differentiate between quality for the 2011 study because the vegetation that was to be cleared as part of this was going to be subject to biodiversity offsetting, and so we didn't want to sort of cheapen it or distinguish between high and low quality. Whether it was going to be cleared or not was just - if it was to be cleared, it was going to be subject to sort of compensation or offsetting.
In cross-examination Dr Robertson elaborated upon the written conclusions expressed in his statement of evidence. Given the significance of this evidence, it is reproduced in full (T827:44-828:7 and again at 831:27-834:19): Q. Thinking of vegetation which was removed for the purpose of construction 45 of that mound, the bund wall? A. Yes. Yes. Q. That vegetation, it can be said, can it not, was most likely representative of the vegetation that was in that location before the occurrence of historic ironstone gravel mining? A. It may have been. I don't absolutely know in that area, you know, which particular community is might have been. It, as I said, it could have been the Dwarf Apple Heath, and that's the area that's been mapped extensively in the 2011 report. It could have been a form of the exposed sandstone woodland, which is the Corymbia gummifera community, or it could have been elements of the wetter Heath, which though not present now, they well have been present in say 1955. … Q. When you've given evidence today about what can be said of the type of vegetation or the vegetation community that was present on plateau A before disturbance by way of ironstone gravel mining A. In 1955? Q. Yes. Say. A. Yes. Q. That includes, doesn't it, the area you've described in the second line of paragraph 62 as being the study area and disturbance footprint? A. Yes, it does. Q. Haven't you said today, and please tell me if I have got this wrong, that in your opinion the vegetation unit that existed on plateau A, before ironstone gravel mining, say 1955, was of a type which could be described as heathy or heathy woodland? A. That the - the - predominantly I've used that term - repeatedly, predominantly, and the most likely to be would be some sort of heath, and I haven't - if you look at, for example, the mapped - the 2013 mapping by OEH, one thing that is shown Q. If you could tell us what you're at and where you're talking? A. I'm looking at the handout that you gave me today. I'm looking at the second of those two maps. Q. The second of those which is the 2013 map extract? A. Yes. Now, this - I suppose looking at this map - a couple of things to note is that it's regional mapping, so it's broad brush mapping and it's - it's endeavoured to map some of the vegetation within the quarry. It probably includes some rehab and other bits and pieces, but by and large there's the big purple map of that unit and that covers lot of the study area, but I'm just drawing the attention to the close proximity of the northern parts, for example, of the study area to the mapped occurrence of Sydney Hinterland Exposed Sandstone Woodland, and I also say that that envelopes the Sydney Hinterland Dwarf Apple Heath Woodland and that mapping is based on the disturbed nature of the Heathcoat ridge area as seen today, or in 2013 or thereabouts. There is a degree of uncertainty that remains about this because you often have heathland and various forms of woodland intermingled in their pristine state as a mosaic, that they occur - it's not a simple clear cut presence or absence or one excludes the other, they are often as a mosaic, and this is what my paragraph 62 and 64 are getting at and the other thing that I thought was of considerable relevance today was when we talked about the wet heath and what might have been present at the site in 1955 and what is still present in the less disturbed areas of the 2011 study area today that are not merely a subject to sort of trail bike riding, which is down in the southern portion of the figure 3.1 in the map that I've shown is the - the forms of wet heath we've described; that as being - you know, one example of that wet heath is Banksia Ericifolia Damp Heath. What I actually have said in my paragraph 61 I've said, "Based on available data and SMCMA mapping, vegetation descriptions" the vegetation unit is some sort of - form of Sydney Hinterland Dwarf Apple Heath Woodland, but I've drawn the conclusion is it a - can you confidently say that it's representative of the floristics and structure of that which was there originally. I say there is reason for doubt. Q. But you say that, don't you, because no one has presented you with data from a sufficiently methodical survey of the vegetation in, say, 1955, that you could compare with the data from a similar sufficiently methodical survey conducted in 2015, don't you? A. That would be one of the considerations that gives rise to my opinion, but not the only one. The other thing that I think it really important, and it's one of the things that foremost in my mind, is having a good understanding of the Heathcoat ridge plateau on the subject site that is the subject of this investigation, or this appeal, and also the - my understanding of the 2011 study site and the way that it's been used and abused by the trail bike riders et cetera and the way that I believe that it's probably been influenced to change and another thing that is important is as a plant ecologist, I have a good understanding of the way in which plant communities can change as a result of - not only quarrying and erosion and trail bike riding but also of things like altered fire history and things like that over the years so when I look at the site today, that is right along the alignment of the bund, there are things like, you know, completely denuded areas within that landscape, as in completely denuded areas that I've shown in - for example, my photographs in quadrat 8, which is in the vicinity of quadrat 8. I'll find a page for it somewhere. On page 3.2 and 3.3. Photographs 3.1 and 3.2 will show you, I suppose, one extreme manifestation of what occurs in some of these quadrat areas. It's a completely denuded area where those iron storage units are. The trees that go in the vicinity of that are things like Spotted Gum and Forest Red Gum, which respectfully spotted gum is Corymbia Maculata, and Forest Red Gum is Eucalyptus Tereticornis. Those have been planted around there in the vicinity of the bund and the planted trees do extend spasmodically along the area to the outside - that were subject to the quadrats, so - can you be absolutely certain you know what was there originally based on information that you're collecting today, and in the absence of historic data collected from on the plateau in the 1955 circumstance, that is - that is the basis for me saying there is still a degree - a considerable degree of uncertainty as to whether it was purely heathland, various forms of woodland, wet or dry heath, and whether some of the additional plants - whether there were additional plant species present original that are not present now, because of the changed habitat conditions. Q. The presence of the introduced species did not prevent the area in which those species have been found, indeed photographs as being mapped as Hinterland Sandstone Dwarf Apple Heath Woodland, have they? A. By whom? Q. By you? By the Sydney Metropolitan Catchment Management Authority? A. Well, as a matter of fact it does. Firstly, if you look at my mapping in figure 3.1 my mapping doesn't map the bund area, and it stops short because as we've discussed in questions last week, we didn't extend to map the quarry area, so figure 3.1 doesn't map the quarry area. Q. I thought you told us though that A. It adjoins it closely, but does not map that area. Q. Your 2015 study area is within the area mapped in 2011 as Hinterland Sandstone Dwarf Apple Heath Woodland? A. Parts of it are, but you're saying that - you've got this purple map unit, for example - that we're talking about the OEH 2013 mapping, maps it as Dwarf Apple Woodland, but it also maps completely cleared trailed as Dwarf Apple Woodland. It maps area that we know to be completely planted out with exotic trees as the Dwarf Apple Woodland and it's - you know, some of those trees are 20 metre high forest. It maps out areas that I know to be just replanted within parts of the quarry that are, you know, not the original vegetation at all. It means it as Dwarf Apple Woodland, so there's nothing wrong with the regional mapping by OEH when it's used in the right context. It's broad brush regional mapping, and it's not based on site specific mapping within the quarry, so you can't use it as absolutely correct and accurate for the purposes of looking at the original vegetation that was cleared immediately when the bund was put in. Q. What about your mapping in 2011? Can we take that as accurate? A. Well, accurate and appropriate for the purpose to which we put it, yes, in 2011. Q. Indeed, you've told us, haven't you, that it's the finest - that is to say the smallest detail mapping available to your knowledge in that area? A. That's right. Q. We've got to use some sort of standard by which to assess floristics and structure, don't we? A. Yes. Q. Mapping, recognised mapping, acceptable mapping, is the accepted way of judging floristics and structure of a vegetation community, isn't it? A. That's too open a question, I think, given the nature of different - or the accuracy and scale of different forms of mapping. I would prefer to agree that the regional mapping by OEH is a good indication of what is either there or might be there on site. It's not absolutely correct, and I've drawn the court's attention to some examples where I believe it's not correct in this instance.
According to the council, the comparator inherent in the second limb of cl 4(ii) is vegetation mapping (T1136:35-43). Put simply, it was the council's position that if a scientific study of the natural vegetation undertaken prior to alteration mapped the relevant area as Dwarf Apple Heath Woodland, and a study taken after alternation immediately prior to its removal revealed the presence of the same vegetation community, then the removed altered vegetation was representative of the structure and floristics of unaltered natural vegetation.
But as Benedict correctly submitted, in my view, just because two units of vegetation can be classified as the same for the purpose of vegetation mapping as a form of Dwarf Apple Heath Woodland, this does not mean that the floristics and structure of one is axiomatically the floristics and structure of the other. This was not Dr Robertson's evidence. Dr Robertson opined that there were a number of possibilities as to the structure and floristics of the natural (that is, pre 1955, prior to the area being subjected to quarrying and mining) vegetation, and because of the extent to which the vegetation in the study area had been, and still was when he carried out his study, disturbed and modified by the extractive industry, the trail bikes and the 4wheel drive vehicles, there was considerable uncertainty as to whether the vegetation was still representative of the structure and floristics of the natural vegetation.
It must be acknowledged that an area of vegetation may be significantly modified or degraded and still be classified as the same vegetation community for mapping purposes (as Dr Robertson conceded: T783:3-6). But it may not share sufficient floristic and/or structural attributes for the purposes of cl 4(ii) of the TPO (T765:37-767:14). One reason, for example, might be because the relative abundance of species within the subject area may no longer be present. Mr Drinnan did not obtain any data as to abundance when giving his opinion as to the floristics and structure of the subject vegetation.
Thus (in addition to the passage quoted above: T833.48) Dr Robertson gave the following evidence (T765:37-767:12): Q. It, nevertheless, was the case, just to give an example, that Angophora Hispida provided in 2015 sufficient cover and was sufficiently abundant to be, as I understand your evidence, the predominant or most distinctive diagnostic species for a classification of the vegetation as belonging to the Hinterland Sandstone Dwarf Apple Heath Woodland vegetation community? A. It wasn't particularly abundant, but it was present on the site. Q. Sufficient to satisfy the diagnostic criteria for the presence of that species for the purpose of mapping it as Hinterland Sandstone Dwarf Apple Heath Woodland? A. I think there are other Heath species or other woody shrubs that were sufficiently present for that to occur. Strangely enough I don't think that that particular small tree species was that prevalent. It was prevalent. It was present, I should say. Q. Because you couldn't have classified it as Hinterland Sandstone Dwarf Apple Heath Woodland, could you, if the species had been absent? A. If the species had been well, theoretically you can. If it's a degraded you can identify it as a degraded or modified form, and a number of the species can be missing from that community. In its healthy, undisturbed form it's described as having certain species present as dominance, but they can drop out or disappear in a disturbed form. So you can theoretically identify vegetation without one or more of the dominance. Q. It would be very unusual to do so where it the species has been adopted has part of the name of the community so as to identify that community, would you? A. No. It's not unusual. Q. Not unusual? A. Not unusual, so. I'll give you an example. I'll just explain to the Court, there's an endanger vegetation community called White Box Grassy Woodland and it's critically endangered across south eastern Australia and it's one of the predominant woodland types that was present at the time of European settlement. It's being used for our wheat, sheep country, and it's some of our most common farming you know, sort of habitat, I suppose, and it's listed as critically endangered now because such a big proportion has been cleared. The listing for that community actually recognises that it can be converted into another form of community, so it can be converted to what's called derived native grassland. So all of the trees can be removed and you can have a rich assemblage of native grasses in the grounds stratum, and that's sufficient for it to be identifiable as part of that community if certain habitats are there. I use this as an example of how modification by such things as farming and quarrying and sometimes selective logging can, for example, take out one or more of the dominant species, and you can still recognise an example of that from a you know, from a modified sample because of the presence of other species that typify that community. Q. That's because the listing permits it, you just told us so? A. Well, it's not purely because the listing permits it. It's because you can understand as an ecologist that some of these species can drop out under certain conditions. Q. Nevertheless, the listing does permit it? A. In the example that I gave, the listing permits it. Yes. Q. Does the listing for Hinterland Sandstone Dwarf Apple Heath Woodland permit the listing of a vegetation unit, or the classification of a vegetation unit as of that vegetation community in the absence of Angophora Hispida? A. Yes. Q. It does? A. Yes. Q. That's in the Sydney Metropolitan Catchment Management Authority mapping, is it? A. I'd have to check. I don't know that it expressly mentioned that, but the practice that we have permits that because there are what they call "condition states of vegetation". You can have vegetation it can be pristine or it can be degraded to various levels, and it is appropriate to take a precautionary approach, for example, as we've done in the 2011 study, and even in degraded areas of the site you could recognise certain types of vegetation, you can map them, even though certain species of plant might be absent, or largely absent. You can still tie your identification to a particular vegetation type because the descriptions that are given in the DECCW 2009 publication and the more recent one in 2013, they give you a description of the vegetation the best examples of the vegetation in good condition.
In other words, and at the risk of repetition, the mapped name of a vegetation community is not necessarily determinative of whether the structure and floristics of one unit is representative of the structure and floristics of the other. Rather, what is determinative is a substantive comparison between structure and comparison of the respective vegetation units. The more modified or "altered" one unit is, the less likely it will still be representative of the structure and floristics of the other.
This was the gravamen of Dr Robertson's evidence. He concluded that the uncertainty as to the structure and floristics of the natural vegetation in the subject area prior to alteration in the 1950s due to an absence of data, and the degree to which the vegetation had been modified prior to its removal by Benedict, meant that he could not be confident that the removed vegetation was still representative of the natural vegetation prior to alteration in terms of structure and floristics (T832:14-32).
There were several specific aspects of the modification that were of concern to Dr Robertson. The first was the alteration of the geology caused by the earlier quarrying activities (the removal of the ironstone gravels); the second was the modification of the drainage of the area; and the third was the removal and destruction of some proportion of the seedbank that would have existed in the top soil.
This was in contrast to Mr Drinnan who gave evidence that, although strip mining for ironstone road gravel in the 1960s had meant that the majority of vegetation was cleared from the area in and around Lot 2, small remnants of vegetation were left and the vegetation on Lot 2 and surrounds had naturally regenerated. Although there had been some minor replanting of the area with species that were not locally occurring, all other vegetation on the site and adjoining area had naturally regenerated, either from seed fall, or remnants of vegetative material such as lignotubers of native plants. Mr Drinnan drew the comparison with regeneration after a bushfire and opined that the natural bushland on Lot 2 had regenerated since the 1960s in much the same way that native vegetation responds to a severe bushfire that removes or damages the majority of above ground vegetation.
The council submitted that, as a consequence, it could be inferred that the natural vegetation of the site prior to disturbance in the 1950s to 1970s was that which presently exists within the adjacent unmined areas with the same elevation, slope, aspect, and soils, namely, Dwarf Appeal Heath Woodland. The presence of significant numbers of the same species on the site as were present in the adjacent plateaux to the south indicated that the same vegetation community was present on the mined sites as existed previously, so that floristically the site was still representative of the Dwarf Apple Heath Woodland community and was therefore representative of the natural vegetation. The council emphasised that replacement vegetation communities did not have to be a facsimile of historical communities and the community on the site could nevertheless be representative of the natural community.
On the assumption - based on the conditions attached to relevant permissive occupancies - that during the 1950s to the 1970s in the area where the bund wall was constructed, the topsoil was removed during the mining process, the ironstone gravel was removed, and the topsoil was returned having had roots and sticks removed from it, Dr Robertson accepted that the returned topsoil would have likely included some sort of seed bank and that the natural vegetation would have grown back (T761:7-23 and 764:15).
Although, as a matter of ordinary language, there is nothing about the word "representative" in the context of cl 4(ii) that requires the vegetation that was removed to be the successor vegetation to the natural vegetation, as Benedict noted, there was no evidence of any conditions attaching to any permissive occupancy during that period that required the topsoil to be restored in a manner that would preserve a vestiginal seed bank on the site after the quarrying of gravel.
For example, cl 30 and 31 of permissive occupancy 66/92 provided for the following: 1. excavation to a depth of six to 10 feet; 2. extraction of the ironstone gravel mantle; 3. upon completion of each section, the spreading of the overburden evenly over the surface in order to ensure uniformity of the finished surface with adjoining sections; and 4. the removal of dead timber and other vegetation so that it did not accumulate on the premises.
Irrespective of whether the overburden was or was not spread over the quarry site (there was some debate about this given the areas identified on Diagram 'C'), as Dr Robertson explained, the spreading of the overburden did not involve the setting aside and restoration of the topsoil. There was no condition requiring this to be undertaken or the seed bank reserved in either permissive occupancy 66/92 or 66/281 (see Diagram 'C'). In all likelihood the topsoil would have been mixed with the overburden. This creates doubt as to the viability of the seek bank for the purpose of vegetative regeneration.
There was, Benedict submitted, no cogent evidence therefore, at least to the criminal standard, that the vegetation that was present had regrown from the original unaltered natural vegetation for the purposes of cl 4(ii) of the TPO (either limb). Based on the state of the evidence, I agree.
Mr Drinnan suggested that, in addition to historical data showing the vegetation community prior to clearing, a comparison of the geographic and topographic context of the mined and unmined areas could also be meaningfully made. This was because the geographic and topographic context did not change.
The significance of the fact that the geographic and topographic context were said to remain static after mining was that the same vegetation community, namely, Dwarf Apple Heath Woodland, was found by SMCMA and by Cumberland Ecology in 2011 to be present not only on the immediate eastern side of the quarry but also on the other plateaux to the south, until the soils changed to soils which do not contain a significant quantity of ironstone.
As noted by Mr Drinnan, the majority of the Sandy Point Quarry site comprises residual soils of the Lucas Heights soil landscape, which is residual of the Mittagong formation and comprises fine to medium grained sandstone with interbedded shale. The surface soils tend to contain ironstone, and are highly permeable with low fertility, and the subsoils tend to have low permeability, very low fertility, and high erodibility. The mix of shale and sandstone tends to support low forest and woodland communities.
As is known, during the 1950s, 1960s and 1970s, the Sandy Point Quarry was used for the extraction of ironstone gravel because it was an area where there was a high concentration of this material.
The council submitted that the ironstone gravel removal did not, contrary to Dr Robertson's evidence, alter the geology or drainage of the subject area.
The council relied on the expert evidence of Dr Hazelton, a soil scientist with an extensive history of studying soils of the region. Dr Hazelton reviewed aerial photographs from 1955 to 1984 to determine which sites had been disturbed and which sites were undisturbed by quarrying.
Dr Hazelton accepted that the area immediately to the east of the bund wall (referred to by her as "site 1") was the subject of ironstone gravel mining during the 1950s through to the 1970s, and that this process involved the use of bulldozers to clear the land and to strip the top soil and other layers of soil necessary to reach the layer of ironstone gravel.
Dr Hazelton investigated the soil at site 1 to determine its texture, structure and chemical characteristics. She took samples from holes dug at site 1 and also from sample holes at a nearby site of the south, referred to by her as "site 2". Site 2 contained both areas which had been disturbed and which were undisturbed.
As a result of the soil investigation and analysis carried out by her at sites 1 and 2, and based on her extensive experience and previous surveys of the area, Dr Hazelton opined that the soils which had been disturbed because of gravel extraction immediately to the east of the location of the bund wall (site 1) had a similar textural, structural and chemical characteristic as the soils investigated at site 2, in both the disturbed revegetated and undisturbed areas.
In her analysis of the soil holes in undisturbed locations in site 2, Dr Hazelton found ironstone pisoliths (round balls of ironstone gravel) in one of the holes. A soil hole in close proximity, and with the same vegetation cover, had no gravel present. That analysis supported her conclusion that the presence of gravel was not essential for vegetation growth.
The council therefore submitted that the Court should reject the suggestion of Dr Robertson that the gravel mining on the site of the quarry would have altered the vegetation community.
Dr Robertson acknowledged that, although he had an understanding of soil and the way they interact with vegetation, he was "by no means a specialised soil scientist" (T745:25-30). He conceded that he had not taken any soil samples of the site. I have taken both concessions into account in assessing his evidence in this regard.
However, in comparing the soil and vegetation at site 1 with the soil and vegetation at site 2, Dr Hazelton gave the following evidence (T57:5-26, emphasis added): A. ... I mean, really and truthfully, if I can just say what I saw as a field person. When I went onto this site, regardless of who was there, I can honestly say that the top of the soil on the site 1, which was the site that had been worked over for the mine, was entirely different from the topsoil site that eventually in 9, 10, 11 and 12 because here you're looking at something that is a real mess with the gravel on top of it and you still get sandy clay loam and work being done because it's been there for such a long time so you're getting fossilisation occurring, but in actual fact the drainage on that particular site number 2 if you look at it would be impeded just going into that soil because it's covered almost like a blanket, so in actual fact it's not as easy to write it down, but if you have a look at it honestly even if you knew nothing about soils at all, if you went on to site 1 and you compared it with site 2 you'd see they were entirely different types of soil.
Therefore, not only did Dr Hazelton observed that the appearance of the top of the soil at site 1 was distinctly different from the appearance of the top of the soil at site 2, she noted that they were different types of soils. Dr Hazelton also noted that the disturbance at site 1 was impeding the drainage at that site. This is significant because it supports the evidence of Dr Robertson that the historical disturbances in that area would have altered the drainage.
More importantly, given that what is at issue is the vegetation, was the evidence Dr Hazleton gave about how different the vegetation was at the disturbed site 1 compared to the undisturbed site 2 (T57:5-26, emphasis added): Q. Entirely different types of site in terms of their soil structure? A. Just in their appearance, not talking about structure, just their absolute appearance because in this sort of situation where you've got this ironstone because he said something about devoid of vegetation these areas [disturbed areas in site 1] tend to be devoid of vegetation and that was true. You only had large trees, very minimum if any ground cover compared with site 2, not site 2, 9, 10, 11, 12 had groundcover a completely different sort of site all together. I mean it couldn't take anyone who knows nothing about soils or anything to see they were entirely different sites.
The evidence of Dr Hazelton was therefore in conformity with that of Dr Robertson insofar as both experts stated that the modification to the site caused by successive decades of extractive activity had the consequence of, at the very least, altering the drainage of the area with the correlative effect that the vegetation on the area, mined for ironstone gravel was different to the vegetation on the areas that had not been disturbed.
The council submitted that Dr Robertson's opinion that he could not say with a suitable degree of scientific confidence that the vegetation present in the footprint of the bund was, prior to its removal, still representative of the structure and floristics of the natural vegetation, was an attempt to supplant the ultimate factual question for the Court under the second limb of cl 4(ii) of the TPO.
I do not agree. Dr Robertson was doing no more (and no less) than expressing his legitimate scientific opinion that he could not be certain of the central tenet of cl 4(ii) of the TPO for the reasons he gave. As an appropriately qualified expert he was entitled to do so. Given that, as explained above, I have determined to prefer the evidence of Dr Robertson over that of Mr Drinnan, I accept his opinion. This means that the council has failed to discharge the criminal burden of proof on this issue. I am unwilling to find to the requisite degree that the vegetation that was there prior to its alteration commencing in the 1950s, was the same vegetation community, in terms of its structure and floristics, even taking into account its inherent variability, as that removed by Benedict in 2010.
The council was also critical of Dr Robertson's uncertainty in the face of no properly conducted scientific survey of the natural vegetation before alteration in the West Menai area prior to the 1950s (it was agreed that the 1949 aerial photograph depicted unaltered natural vegetation whereas the 1955 photographs did not) for the purpose of the comparison of the structure and floristics of the vegetation that was removed by Benedict (T1136:7-49). According to the council, the logical corollary of the absence of such data would mean that the second limb of cl 4(ii) of the TPO was unenforceable in the West Menai area.
There are three responses that may be made to this submission. The first is that without such data, this may in fact be the practical effect. To so find is consistent with the text and context of the TPO. Bushland vegetation will still be protected by the first limb of cl 4(ii) of the TPO. Second, this was not the only basis which led Dr Robertson to express a lack of confidence about the comparative structure and floristics of the vegetation units. The modified state of the vegetation he examined in 2015 in his statement of evidence was also a factor. And third, and in any event, as quoted above (T831:43-832:33), Dr Robertson was not convinced that all of the vegetation present in the disturbance footprint of the bund wall prior to 1955 was Dwarf Apple Heath Woodland.
In my opinion, having regard to the evidence of Dr Robertson and Dr Hazelton, I am not satisfied beyond reasonable doubt that the vegetation in the disturbance footprint of the bund wall was representative of the structure and floristics of the unaltered natural vegetation that was previously present in 1949 at that location. The council has accordingly failed to prove that the vegetation that was removed was "bushland vegetation" within the meaning of cl 4(ii) of the TPO.
If follows that the bushland vegetation TPO charges must be dismissed.

[116]

The Council Has Not Demonstrated an Absence of Consent to Quarry on Lot 2

As stated above, the TPO was made pursuant to the power conferred on the council by cl 13 of SSLEP 2000. Relevantly for present purposes, cl 13(3) of SSLEP 2000 specified with particularity the content of any order made under that clause, both in respect of the terms of the general prohibition contained within it, and also in respect of the content of the exceptions from the prohibition. That is to say, the general prohibition set out in any order made under cl 13, including the TPO, was subject to the exception expressed by the words, "except with development consent or the permission of the Council'.
Clause 2 of the TPO prohibits the injuring of any tree or bushland vegetation described in cl 4 of the TPO, "unless written consent is obtained in accordance with this clause."
Clause 5 of the TPO includes the following statement: A development consent granted pursuant to the Environmental Planning and Assessment Act 1979 may also constitute by express words a Consent by Council to Prohibited Actions.
By way of a collateral challenge to the validity of the TPO - which was dismissed by this Court in Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2015] NSWLEC 101 and on appeal in Benedict Industries Pty Ltd v Sutherland Shire Council [2015] NSWCCA 272 the council argued that the combined effect of cls 2 and 5 of the TPO was to impermissibly purport to exclude from the ambit of the exception to the prohibition mandated by cl 13(3) of SSLEP 2000, any accrued ancillary rights under a development consent if the development consent did not by "express words" permit conduct which would otherwise be prohibited under clause 2 of the TPO.
In dismissing that contention, the Court held in Benedict Industries Pty Ltd (No 4) at [92] (undisturbed on appeal): Favouring an interpretation of cls 2 and 5 that promotes the validity of the TPO, the exercise of properly characterised ancillary rights (and, for that matter, any other right, including the duration of the development consent: see cl 5 of the TPO) to carry out development concomitant upon the grant of approval by the council that would otherwise be caught by the general prohibition in cl 2, is preserved. In other words, if the council intended to prohibit activities that would ordinarily be permissible pursuant to the grant of a valid development consent (or some other form of permission), it would have been incumbent upon the council to expressly and unambiguously state this in the TPO.
It follows that it was also necessary for the council to prove that there was no development consent in force which, whether by express words or otherwise, permitted the removal of the trees and vegetation in the Sandy Point Quarry in the footprint of the perimeter bund wall on Lot 2.
In this regard, cl 5 of the TPO may be construed as including within the ambit of exception contained within it not just development consents granted under the EPAA, but also development consents issued under the LGA 1919, and ordinances made under that Act, including Ordinance 105 and the CCPSO.
In order words, the council must exclude as a rationale hypothesis that during the charge periods there was one or more development consents in force permitting Lot 2 to be used for the purposes of quarrying (mining or gravel extraction), otherwise the council will have failed to prove the absence of a consent permitting the construction of the bund wall on Lot 2, and the consequential removal of trees and vegetation for that purpose.
The council was therefore required to prove that: 1. there was no development consent granted under Ordinance 105 in the period during which that ordinance was in force to use the land now known as Lot 2 for the purposes of quarrying, or mining, or gravel extraction; 2. there was no development consent granted under the CCPSO during the period from June 1951 to 1 September 1980 (the date of the commencement of the EPAA) to use the land now known as Lot 2 for the purposes of quarrying, mining or gravel extraction; and 3. there was no development consent granted under the EPAA up to and including the charge periods to use the land now known as Lot 2 for the purposes of quarrying, mining or gravel extraction.
As disclosed above in relation to the prohibited development charge, the council has failed to exclude the rational hypothesis that there was such a consent in force with respect to the land now known as Lot 2. Put another way, the council has failed to establish beyond reasonable doubt that for the purposes of the TPO no consent was granted which in effect permitted the removal of the trees and the vegetation for the purposes of constructing the bund wall.

Sutherland Shire Council v Benedict Industries Pty Ltd

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