Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Environment Protection Authority - [2022] NSWLEC 29 - NSWLEC 2019 case summary — Zoe

NSWNSWLEC

Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Environment Protection Authority

[2022] NSWLEC 29

Land and Environment Court (NSW)|2019-12-06|Before: Pepper J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2019-12-06

Before

Pepper J

Source

Original judgment source is linked above.

Judgment (76 paragraphs)

[1]

e Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 Anastasiou v Wallace [2020] NSWLEC 14 Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317 Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; [1990] HCA 21 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 AVS Group of Companies Pty Ltd v Commissioner of Police (2010) 78 NSWLR 302; [2010] NSWCA 81 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 Beck v Weinstock (2012) 8 BFRA 279; [2012] NSWCA 289 Blacktown City Council v Pearce [2013] NSWLEC 175 Blair v Curran (1939) 62 CLR 464; [1939] HCA 23 Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 Botany Bay City Council v Saab Corp Pty Ltd (2011) 82 NSWLR 171; [2011] NSWCA 308 Brown Brothers Waste Contractors Pty Ltd v Pittwater Council (2015) 90 NSWLR 717; [2015] NSWCA 215 Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 Cando Management and Maintenance Pty Ltd v Cumberland Council (2019) 237 LGERA 128; [2019] NSWCA 26 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 2) (2010) 172 LGERA 25; [2010] NSWLEC 1 Casa v Ryde City Council (2009) 172 LGERA 348; [2009] NSWLEC 212 CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 CBRE (V) Pty Limited v Trilogy Funds Management Limited [2021] NSWCA 316 Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; [1988] HCA 21 Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales [2018] NSWLEC 10 City of Sydney Council v Waldorf Apartments Hotel Sydney Pty Ltd (2008) 158 LGERA 67; [2008] NSWLEC 97 Clark v Robards (No 3) [2016] NSWCA 354 Cudgegong Australia Pty Limited v Sydney Metro [2018] NSWCA 298 Cudgegong Australia Pty Ltd v Transport for New South Wales [2018] NSWSC 929 Cutcliffe v Lithgow City Council (2006) 147 LGERA 330; [2006] NSWLEC 463 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 Darley Australia Pty Ltd v Walfertan Processors Pty Ltd (2012) 188 LGERA 26; [2012] NSWCA 48 DEXUS Funds Management Limited v Blacktown City Council (No 3) [2011] NSWLEC 230 Director of Public Prosecutions (NSW) v Yigit [2008] NSWCA 226 Discount and Finance Ltd v Gehrig's NSW Wines Ltd (1940) 40 SR (NSW) 589 El Cheikh v Hurstville City Council (2002) 121 LGERA 293; [2002] NSWCA 173 Elanor Investments Limited v Sydney Zoo Pty Ltd (No 5) [2020] NSWLEC 93 Ex parte Amalgamated Engineering Union (Australian Section); Re Jackson (1937) 38 SR (NSW) 13 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Ford Motor Company of Australia Limited v Tallevine Pty Ltd (as Trustee of the Thornleigh Trading Trust) [2019] NSWSC 1914 Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1 Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27 Hawkesbury City Council v Sammut (2002) 119 LGERA 171; [2002] NSWCA 18 Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 Hornsby Shire Council v Vitone Devleopments Pty Ltd (2003) 132 LGERA 122; [2003] NSWLEC 272 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 Huang v Wong (No 2) [2019] NSWCA 18 Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 James v Australia and New Zealand Banking Group Ltd [2020] NSWCA 101 JK Williams Staff Pty Ltd v Sydney Water Corporation (2021) 249 LGERA 109; [2021] NSWLEC 23 Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 Kendell v Carnegie (2006) 68 NSWLR 193; [2006] NSWCA 302 Kouflidis v Corporation of the City of Salisbury (1982) 29 SASR 321 Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 Ku-ring-gai Council v Minister for Planning [2008] NSWLEC 174 Lizzio v The Council of the Municipality of Ryde (1983) 155 CLR 211; [1983] HCA 22 Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 Macquarie International Health Clinic Pty Ltd v University of Sydney (1998) 98 LGERA 218 Makhoul v Barnes (1995) 60 FCR 572 Marshall Rural Pty Ltd v Basscave Pty Ltd (No 3) [2018] NSWLEC 62 Marshall, Inner West Council v Balmain Rentals Pty Ltd [2019] NSWLEC 24 Maurice Blackburn Cashman v Brown (2011) 242 CLR 647; [2011] HCA 22 Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council (2010) 210 LGERA 126; [2010] NSWLEC 48 Newcastle City Council v Leaway Pty Ltd [2005] NSWLEC 619 North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50 O'Connor v State of New South Wales [2017] NSWCA 335 P E Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437 Page v Manningham City Council (2010) 27 VR 642; [2010] VSC 267 Patsalis v Attorney General for the State of New South Wales [2013] NSWCA 98 Pattni v Ali [2007] 2 AC 85; [2006] UKPC 51 Penrith City Council v Dincel Construction System Pty Ltd and Gaonor Pty Limited (OSSM case) [2019] NSWLEC 198 Penrith City Council v Waste Management Authority (NSW) (1990) 71 LGRA 376 Permanent Trustee Co (Canberra) Ltd (Executor estate of Andrews) v Stock & Holdings (Canberra) Pty Ltd (1976) ACTR 45 Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 Presrod Pty Ltd v Wollongong City Council [2010] NSWLEC 192 Queanbeyan City Council v Sun (No 2) (2013) 195 LGERA 14; [2013] NSWLEC 64 Rafailidis v Camden Council [2015] NSWCA 185 Ralph Lauren Pty Ltd v New South Wales Transitional Coastal Panel (2018) 235 LGERA 345; [2018] NSWLEC 207 Ramsay v Pigram (1968) 118 CLR 271; [1968] HCA 34 Randren House Pty Ltd v Water Administration Ministerial Corporation (No 4) [2019] NSWLEC 5 Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 Regional Express Holdings Ltd v Dubbo City Council (No 2) [2013] NSWLEC 113 Reysson Pty Ltd v Roads and Maritime Services (No 4) [2016] NSWLEC 159 Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 Settlers Estate Pty Ltd v Penrith City Council (2021) 247 LGERA 84; [2021] NSWCA 13 Shire of Perth v O'Keefe (1964) 110 CLR 529; [1964] HCA 37 Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677; [2000] FCA 1192 St Alder v Waverley Local Council (2010) 172 LGERA 147; [2010] NSWCA 22 Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342; [1987] FCA 127 Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 133 The Owners Strata Plan No 57164 v Yau (2017) 96 NSWLR 587; [2017] NSWCA 341 Timbercorp Finance Pty Ltd (in liquidation) v Collins (2016) 259 CLR 212; [2016] HCA 44 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 UBS AG v Tyne as Trustee of the Argot Trust (2018) 265 CLR 77; [2018] HCA 45 Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Verde Terra Pty Ltd (No 2) [2020] NSWLEC 10 Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Verde Terra Pty Ltd (No 3) [2020] NSWLEC 40 Verde Terra Pty Ltd v Environment Protection Authority [2018] NSWLEC 159 Verde Terra Pty Ltd v Environment Protection Authority (No 3) [2018] NSWLEC 161 Victoria v The Commonwealth (1996) 187 CLR 416; [1996] HCA 56 Walton v ACN 004 410 833 Ltd (formerly Arrium Limited) (in liquidation) [2022] HCA 3 Warlam Pty Ltd v Marrickville Council (2009) 165 LGERA 184; [2009] NSWLEC 23 Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146 Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10; [2004] FCAFC 242 Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710 Texts Cited: J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane's Equity Doctrines and Remedies (5th ed) (LexisNexis, 2015) K R Handley, Spencer Bower and Handley Res Judicata (5th ed) (LexisNexis, 2019) M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed) (Thomson Reuters, 2019) Macquarie Dictionary (online ed) Oxford English Dictionary (online ed) Category: Principal judgment Parties: Proceedings 2019/101279 Verde Terra Pty Ltd (Applicant/First Cross Respondent) Central Coast Council (First Respondent/Cross Claimant) Environment Protection Authority (Second Respondent) Mangrove Mountain Landfill Pty Ltd (Second Cross Respondent) Mangrove Properties (NSW) Pty Ltd (Third Cross Respondent) Proceedings 2019/203552 Central Coast Council (Applicant) Environment Protection Authority (First Respondent) Verde Terra Pty Ltd (Second Respondent) Representation: Counsel: Proceedings 2019/101279 P Larkin SC with G Tsang and J Stuckey-Clarke (Applicant) T Howard SC with M Astill (First Respondent/Cross Claimant) H El-Hage (Second Respondent) P Larkin SC with J Stuckey-Clarke and G Tsang (First, Second and Third Cross Respondents) Proceedings 2019/203552 T Howard SC with M Astill (Applicant) H El-Hage (First Respondent) P Larkin SC with J Stuckey-Clarke and G Tsang (Second Respondent)

[3]

Judgment TABLE OF CONTENTS TOPIC PARAGRAPH NO The Central Coast Council Seeks to Set Aside 2014 Consent Orders [1] The Development of the Mangrove Mountain Landfill and Golf Course [7] The 1998 Consent and its Modification [13] Environment Protection Licence History [42] The 2012 Proceedings and the 2014 Consent Orders [47] Events After the Making of the 2014 Consent Orders [82] Subsequent Litigation [110] Parties' Pleadings [121] VT Proceedings [122] Prayer 1 [123] Prayer 2 [125] Remaining Prayers for Relief Are Abandoned [128] The Council's Cross-Summons [132] The Council Proceeding Pleadings [137] Issues for Determination in Both Sets of Proceedings [128] Scope and Application of the 2014 Consent Orders [138(a)] Estoppel and Related Doctrines [138(b)] Development Consent [138(e)] The 1998 Consent [138(g)] Alterations and Additions [138(h)] The Council Proceedings Issues [138(m)] Discretion [138(p)] Evidence [141] Legislative Framework [147] The Operation and Effect of the 2014 Consent Orders on the 1998 Consent (Issues 1 and 7) [153] The Proper Construction of the 2014 Consent Orders [156] The Proper Construction of the 1998 Consent [177] What Development Did the 1998 Consent Authorise? [189] The 1992 EIS [194] The 1997 LEMP [208] Was the Filling Restricted to Area B Under the 1998 Consent? [219] Effect of the Variations to EPL 11395 [244] The Volume of Fill in Area B Under the 1998 Consent [253] The Effect of the Subsequent LEMPs and LMPs on the 1998 Consent [263] Summary of Findings [270] What Development is Permitted Under the 2014 Consent Orders? [272] Are the 2014 Consent Orders Illegal, Irregular or Contrary to Public Purpose? [300] Rule 36.15 of the UCPR [302] Implied or Inherent Power of the Court [326] Discretionary Factors Weigh Against Setting Aside the 2014 Consent Orders or Voiding the 2013 Heads of Agreement [336] The 2014 Consent Orders Ought Not be Set Aside [359] Setting Aside the 2013 Heads of Agreement [360] Estoppel and Related Doctrines (Issues 2 to 6) [366] Do the 2014 Consent Orders Operate in Rem or in Personam? [369] Are Estoppel and Related Doctrines Applicable to the 2014 Consent Orders? [380] Can Estoppel Apply to Exercises of Statutory Power? [387] Res Judicata [402] Issue Estoppel [417] Anshun Estoppel [426] Abuse of Process [433] Summary of Findings on Estoppel and Related Doctrines [440] Was the Development Existing or Approved Development? (Issues 8 to 12) [445] The Meaning of "Existing or Approved" Development Under Cl 35 of Sch 3 of the EPA Regulations [450] The Council's Proceedings (Issues 13 to 15) [464] Leave to Extend Time (Issue 13) [465] Estoppel and Related Doctrines Do Not Apply [479] Are the Variations to EPL 11395 Invalid by Reason of the Operation of s 50(2) of the POEOA? [490] Proper Construction of s 50(2) of the POEOA [496] Severance [516] Discretion (Issue 16) [524] Discretionary Considerations in Granting Declaratory Relief [526] The Declaratory Relief Sought in the VT Proceedings [528] Prayer 1 [530] Prayer 2 [541] The Declaratory Relief Sought in the Council Proceedings [544] Relief [546] The VT Parties Proceedings and the Council's Cross-Summons [547] The Council Proceedings [549] Costs [550] Orders [551]

[6]

The 1998 Consent and its Modification

On 16 March 1998 G & H Todd lodged development application DA 23042/1998 with Gosford CC ("the 1998 DA").
The 1998 DA, under the heading "Description of Proposed Work", identified the "Type of Work" as being "Alteration" and "Other (specify): Remodelling Golf Course". The "Description of Proposed Development" was described as the "Reconstruction of existing Golf Course to upgrade to 18 hole Golf Course".
The 1998 DA was accompanied by an environmental impact statement ("1992 EIS") prepared by TGT Consulting Services Pty Ltd, dated 14 October 1992, entitled "Mangrove Mountain RSL Sub-Branch Environmental Impact Statement for the Reconstruction of the Mangrove Mountain Memorial Golf Course, Central Mangrove".
On 6 October 1998 Gosford CC resolved to grant consent to the 1998 DA to remodel the golf course on the land, subject to 47 conditions ("1998 consent"). A notice of determination was issued on 14 October 1998. The instrument of consent was headed "Development Application No 23042 - Proposed Remodelling of Golf Course on Lot 584 DP 809570 Wisemans Ferry Road Mangrove Mountain".
The 1998 consent authorised, among other things, the making of substantial changes to the contours of the land. To effect those changes, the consent authorised the operation of a waste facility on the land for the purposes of enabling the importation of waste as fill. The 1998 consent was in the following relevant terms: CONDITIONS OF DEVELOPMENT CONSENT Development Application No 23042 - Proposed Remodelling of Golf Course on Lot 584 DP 809570 Wisemans Ferry Road Mangrove Mountain 1 The operations of the waste facility are to be carried out in accordance with the Landfill Environmental Management Plan prepared by Perram and Partners except where modified by any conditions of this consent and the requirements of any relevant regulatory authority. 2 The operations of the waste facility and the remodelling of the Golf Course is to be carried out in accordance with the Environmental Impact Statement prepared by T.G.T. Consulting Services Pty Ltd except where modified by any conditions of this consent, the abovementioned Landfill Environmental Management Plan and the requirements of any relevant regulatory authority. 3 The applicant shall engage the Central Coast Waste Planning and Management Board to employ a person to oversee the disposal of waste on the site. All costs associated with this employee are to be borne by the Mangrove Mountain Memorial Golf Club. No fill to be dumped without the presence of the Board officer, and it is a requirement that the applicant advise the Board and the officer well in advance of any proposed dumping of fill. 4 The following information is to be provided to the Central Coast Waste Planning and Management Board during the life of the waste disposal operations:- a Information and waste statistics compiled using a computerised system which is compatible with that of the Central Coast Waste Planning and Management Board. b Data produced daily and downloaded to the Board by electric means on a weekly basis. c A copy of the Section 72 report prepared for the EPA on a monthly basis. d A copy of the annual report required under the license conditions and Landfill Guidelines. … 12 The operator of the waste disposal facility shall develop annual nutrient budgets to prevent excessive fertiliser or effluent applications causing eutrophic conditions developing in dams or watercourses located on or leading from the site. The nutrient budget should incorporate soil assessments to determine soil nutrient accumulation and nutrient absorption levels, and fertiliser requirements which will not leave to nutrient loss from the site. An amended Landfill Management Plan is to be submitted to Council prior to commencement reflecting this requirement.
Additional conditions authorised the operation of a "waste facility" or "waste disposal operations" (see, for example, condition 45).
It is not in dispute that the development the subject of the 1998 consent was designated development within the meaning of the EPAA.
As a consequence, the 1992 EIS was required to accompany the 1998 DA. The 1992 EIS confirmed that the proposed development was for the purpose of a golf course.
Section 2.1 of the 1992 EIS described the need for the proposal as the configuration of an 18 hole golf course, with a new clubhouse and relocated greens. Contour lines identified the various earthworks proposed on the land.
Section 2.2 of the 1992 EIS stated under the subheading "Project Objectives": The primary objective of this proposal is to ultimately provide the Members and Public Players with the best possible course layout and playing conditions, in the most pleasant surrounding at no cost to the Golf Club.
Section 2.3 under "Project Description" relevantly stated: The Executive of the Mangrove Mountain Memorial Golf Club has engaged G. & H. Todd Pty. Ltd., Waste Disposal Contractors and Golf Course Reconstruction specialists, to carry out the reconstruction and reinstatement of the Course to an 18 hole configuration… Plan No. 2 and Model No. 1 show the existing contours of the layout of the remaining 9 holes which are currently played. Plan No. 3 and Model No. 2 show the intended new layout and revised contours.
Section 2.6 explained the design relationship between the fairways, the proposed contours, and the mounds between the fairways. Section 2.8.2 stated that the importation of fill material was to occur.
Plans forming part of the 1992 EIS (especially Plan 3), identified, among other things, the final landform intended to be achieved, together with approximate areas across the land designated as Zones (or "Areas") "A", "B" and "C", and a collection of mounds in Zone "D", which were to receive most of the fill. A further area between Zones A and B was identified as the "cut area" where most of the excavation was to take place.
Under Section 4.4 of the 1992 EIS the volumes of fill required to carry out the golf course reconstruction were calculated to total 240,000 m3, with amounts of fill for each construction phase specified for Zones A, B, C and D. The nature of the fill material to be imported was described as "selected fill materials from the non-putrescible waste stream…collected by transfer stations within the Sydney Metropolitan area".
A 1997 Landfill Environmental Management Plan ("1997 LEMP") dated March 1997 and prepared by Perram & Partners, accompanied the 1998 DA but was not a legal requirement of the DA. Initially, the 1997 LEMP was prepared pursuant to the 1995 deferred development consent.
The 1997 LEMP was expressly incorporated by reference in conditions 1 and 2 of the 1998 consent.
The 1997 LEMP described the development on the land in terms that were the same as those contained in the 1992 EIS. That is, for the purpose of re-modelling the golf course.
Sections 1.2 and 1.4 of the 1997 LEMP foreshadowed reviews of the document over time in accordance with section 1.4. Any revised plan was to be forwarded to Gosford CC and the EPA prior to implementing any amendment.
There were subsequent Landfill Environmental Management Plans ("LEMP"), notably in 2013, but there is no evidence that these were forwarded to Gosford CC. Therefore, it appears that these revised versions of the 1997 LEMP did not form part of any application to modify the 1998 consent (see further the chronology discussed later in the judgment).
The 1998 consent was operative after 28 days in accordance with the provisions of the EPAA.
Thereafter, but before 2003, works began on the land pursuant to the 1998 consent. The waste facility became known as the "Mangrove Mountain Landfill" ("MM Landfill"). Over time it has been operated by different entities: 1. from 5 April 2002 to 31 October 2007 by G & H Todd; and 2. from 1 November 2007 to date by VT.
On 19 September 2002 Mark Hallinan of Planet Earth Support Company Pty Ltd ("Planet Earth") lodged an application to modify the 1998 consent with Gosford CC ("the 2002 modification application"). The 2002 modification application described the development approved by the 1998 consent as "Remodelling of Golf Course". It proposed modification to various conditions (3, 4 and 31) and the deletion of condition 45 of the 1998 consent.
On 25 February 2003 Gosford CC resolved to approve the 2002 modification application. And on 11 March 2003 it issued a notice of determination in respect of the 2002 modification application.
On 8 April 2008 DP 1123656 was registered. DP 1123656 was a subdivision of Lot 584 DP 809570 and Lot 48 DP 755244, creating Lot 581 and Lot 582.
Subsequently, on 6 May 2008 Central Mangrove Waste lodged an application to modify the 1998 consent with Gosford CC ("the 2008 modification application").
On 1 May 2009 Gosford CC approved the 2008 modification application.
From 19 August 2014 to 15 September 2014 the registered proprietor of Lot 582 was RSL Custodian Pty Ltd ("RSL").
From 15 September 2014 to the present date, the registered proprietor of Lot 582 has been Mangrove Properties (NSW) Pty Ltd ("Mangrove Properties").
Finally, it is noted that part of the land currently identified as Lot 582 was formerly identified as Lot 584.

[8]

The 2012 Proceedings and the 2014 Consent Orders

In July 2011 Verde Terra (NSW) Pty Ltd, a corporate entity associated with Tony Tartak, purchased all of the shares in VT in the sum of $3 million. According to the VT parties, a principal motivation driving the purchase was that VT had, by that time, procured a contractual right from MMMCL (with consent from the then landowner) to carry out the works contained in both the 1998 consent and EPL 11395. These instruments permitted VT to carry out waste landfilling activities on the land.
On 3 September 2012 Gosford CC commenced the 2012 proceedings in this Court against VT and others. The EPA was not a party to those proceedings. By this time, a substantial fill mound was situated in the north-western part of the land in Zone B.
The summons relevantly alleged that VT had breached the EPAA by carrying out development on the land otherwise than in accordance with the conditions of the 1998 consent. In particular, it was alleged that the amount of fill imported onto the land exceeded what was permitted under the approval.
Prayer 7 of the summons sought injunctive relief expressed as follows: a. subject to c. below, cease to threaten or carry out work that is not in accordance with the Consent without having obtained prior development consent according to law; … c. do or cause to be done all things and works necessary to remove the stockpiled materials and grade the land, restoring it to the finished land levels in accordance with the Consent to prepare it for its approved use as a golf course in accordance with the Consent ("the Works"). The Works shall include … i. Transfer 165,000 m3 of waste material from the waste mound located in Zone B…into…Cell W… ii. Transfer 60,000 m3 of waste material from the waste mound located in Zone B…into Zone A… iii. Transfer 30,000 m3 of waste material from the waste mound located in Zone B…into the Zone C… iv. Transfer 50,000 m3…into the Zone D… v. Import 20,000 m3 of clean soil to create the tees and greens…
In other words, the relief sought included both a general injunction against carrying out further works outside of the 1998 consent without first having obtained a further development consent, and an exception to the need to obtain approval for certain specified works, namely, reducing the height of the fill mound and using the excess fill to complete the remodelling of the golf course.
Although amended versions of the summons and supporting points of claim were later filed, this regime of injunctive relief remained.
The 2012 proceedings sought orders for remediation. Gosford CC asserted that the breaches referred to in its pleadings had caused environmental harm, including impacts on surface water and ground water. It further asserted the potential for "additional significant environmental effects" to occur if the mound in Zone B was unstable.
The 2012 proceedings were ultimately resolved by consent orders made on 29 August 2014 ("the 2014 consent orders") following a lengthy period of negotiation between the parties.
While the EPA had some involvement in the 2012 proceedings, it was not a party to the 2012 proceedings or the 2014 consent orders, and it was not involved in the negotiation or formulation of the 2014 consent orders prior to their making. Rather, following the commencement of the 2012 proceedings, the EPA was consulted by both VT and Gosford CC regarding iterations of LEMPs and Leachate Management Plans ("LMP") applicable to the development being carried out on the land by VT, and it provided feedback and comments on both.
The EPA did not, however, approve or endorse any version of the LEMP or LMP. It explicitly stated its position to VT on 3 February 2014 in a written communication. A similar letter was sent to Gosford CC on 6 February 2014.
VT, Gosford CC, MMMCL and Mangrove Mountain Landfill Pty Ltd ("MML") participated in a mediation before the Hon Angus Talbot, a former judge of the Court. The mediation precipitated an agreement. Relevantly, on 20 September 2013, Gosford CC, VT, MMMCL and MML entered into a written agreement entitled "Heads of Agreement" ("the 2013 Heads of Agreement"). The then owners of the land, RSL, were also parties to the 2013 Heads of Agreement.
The 2013 Heads of Agreement detailed an arrangement to be sanctioned by Court orders involving: 1. VT performing certain works on the land and preparing revised versions of its LEMP and LMP; 2. the EPA issuing a revised EPL 11395; and 3. the golf course being completed within 10 years from the date of the EPA approving the lining of an area known as "Cell W".
The 2013 Heads of Agreement did not express any requirement for VT to obtain a further development consent to carry out these works.
On 29 August 2014 Gosford CC, VT and MML made joint written and oral submissions to the Court and proposed the making of consent orders. Neither the joint written or oral submissions, or the consent orders, contained any stipulation for VT (or any other entity forming part of the VT parties) to obtain further development consent before carrying out the works specified by the agreement or proposed in the consent orders.
On 29 August 2014 the Court was directed to the pleadings and was provided with a copy of a document entitled Amended Landfill Environmental Management Plan 2013, prepared by Consulting Earth Scientists, dated 4 February 2014 ("the Amended 2013 LEMP") and three artists' impressions of the site.
The pleadings set out details of the breaches of the 1998 consent relied upon by the Council, including references to existing fill volumes and fill locations which were compared to that which was said to be authorised by the 1998 consent.
In the context of explaining a proposed increase in truck movements, the Court was told this was "to enable remediation of the site within a reasonable timeframe". The Court was told in joint oral submissions that the EPA had approved in principle the Amended 2013 LEMP and a 2013 Land Management Plan ("2013 LMP") and the further modifications contemplated by the 2014 consent orders, and moreover, that the 2014 consent orders provided "appropriate controls and monitoring". The joint written submissions noted that the EPA had advised that "the amended LEMP 2013 dated 4 February 2014 is appropriate" and that it set out "certain processes to manage risks that may arise from leachate and to enable regular monitoring". The Court was also told that the lining of cell W would "be done to best industry practice".
With minor qualification, the pleaded breaches of the EPAA were admitted to by the respondents. The Court was unequivocally told that there was "no dispute" that "breach of the Consent occurred". The parties' joint written submissions specifically drew the Court's attention to the pleadings which set out details of the breaches of the 1998 consent relied upon by Gosford CC, including by reference to unlawful fill volumes and fill locations under the 1998 consent.
The qualification was that there was no admission that the breach had taken place as a result of the actions of the current shareholders.
The Court was told that works began after 5 April 2002 and from that time up until 31 October 2007, the landfill was operated by G & H Todd. The Court was informed that from 1 November 2007 the landfill had been operated by VT, and that shares in VT were transferred to the current shareholders on 1 July 2011. The admissions of breach therefore related to the period between 5 April 2002 and 1 July 2011.
The written submissions set out the connection between the breach and the works contemplated by the putative 2014 consent orders: There is no dispute between the applicant Council and the first and third respondents [VT and MML] that there has been a breach of the Act and that those parties have reached agreement that would result in the remediation of the site to achieve the following...
A range of outcomes were specified and that: The Consent Orders have been drafted to achieve the outcomes set out above…
Thus, the Court was informed of the relevant breaches of the EPAA and the connection between those breaches and the proposed 2014 consent orders.
The Court was also told how the works required by the 2014 consent orders compared in nature, scope and purpose to that approved by the 1998 consent. This was described in paragraphs 12 to 23 of the parties' joint written submissions, including by reference to conditions 1 and 2 of the 1998 consent and its relationship with the 1992 EIS and 1997 LEMP. It was submitted that the 1998 consent had "3 component parts being: 1. An extractive industry … 2. A waste facility …; and (3) Golf course remodelling".
The nature, scope and purpose of the 1998 consent was also referred to in paragraphs 10, 16 and 17 of the pleadings, including that it "authorised part of the Land to be used for the purposes of a "waste facility" and permitted non-putrescible waste to be imported onto the Land to be used for filling and land reshaping". Further, that "the EIS provided that a total volume of 240,000 m3 of fill would be required to complete the reconstruction of the golf course". The nature, scope and purpose of the works approved by the 1998 consent was also specifically addressed in the parties' joint oral submissions.
Similarly, the Court was directed to the nature, scope and purpose of the works required by the 2014 consent orders in both the parties joint written and oral submissions, including but not limited to, by reference to volumes and areas.
Importantly, the Court's jurisdiction to make the consent orders was addressed in the submissions, this having been a concern raised by the Court previously. Gosford CC, VT and MML all submitted that the proposed orders were within the powers of the Court under s 124(1) of the EPAA (as it then was).
The 2014 consent orders were said to result "in remediation of the site" and also to achieve "appropriate controls and monitoring during the course of the construction of the golf course to minimise risk of environmental harm".
Gosford CC, VT and MML signed the draft consent orders and the Court made orders in accordance with the agreed consent orders on 29 August 2014 as applied for by the parties. The other respondents to the 2012 proceedings did not oppose the making of the 2014 consent orders.
The terms of the 2014 consent orders were as follows: TERMS OF ORDER MADE BY THE COURT Development Consent DA23042/1998 for the landfill and proposed remodelling of the Mangrove Mountain Golf Course on Lot 584 DP809570, Wiseman's Ferry Road, Mangrove Mountain shall be carried out in accordance with the following and pursuant to s.124 of the Environment Planning & Assessment Act 1979 (as amended): 1. The first and third respondents are to comply with the terms of the Amended Landfill Environmental Management Plan 2013 prepared by Consulting Earth Scientists (CES110703-VDT-AR) ("the Amended LEMP 2013") subject to order 4 below. 2. The first and third respondents are to comply with the terms of the Leachate Management Plan 2013 prepared by Consulting Earth Scientists (CES110703-VDT-60) ("the LMP 2013") subject to order 4 below. 3. The Amended LEMP 2013 and the LMP 2013 referred to in orders 1 and 2 cannot be further altered except to: (a) amend the documents to reflect the consequences for a 6m reduction in the Mound on Area B in lieu of a 7.4m reduction, and (b) subject to subparagraph (a), any future amendment will only occur with the consent of Gosford City Council pursuant to operation of the statutory process available under the Environmental Planning and Assessment Act 1979 (or any equivalent replacement statutory scheme in the future); 4. Works to be carried out on the subject land in accordance with the Amended LEMP 2013 and the LMP 2013 be as follows, and subject to the following conditions and timeframes: 4.1 6 metres of waste from the fill mound on Area B be moved to Cell W and a 2.4 metre thick permanent final capping be placed thereon to result in a maximum height for the final landform in Area B of RL341.4; 4.2 The removal of waste and capping of the mound on Area B as set out in subparagraph 4.1 shall be completed no later than 31 August 2017 and otherwise in accordance with the Amended LEMP 2013; 4.3 The time for completion of the golf course and closure of the landfill operation will be 10 years from the date of approval of the lining of Cell W by the Environment Protection Authority of NSW, and the granting of an amended Environment Protection Licence No, 11395 to reflect the content of the Amended LEMP 2013 and LMP 2013, whichever last occurs. 4.4 The contours for the finished level of closure of the landfill and the golf course are set out in the golf course design by McKay & Sons Pty Limited which is Appendix III to the Amended LEMP 2013. The tolerance to the finished levels are plus 0.5 metres and minus 1.5 metres to enable best practice for the golf course design and are to be adjusted to reduce the Mound in Area B by 6m not 7.4m as shown, such plans to be delivered to all parties; 4.5 The total amount of VENM and ENM to be placed over the whole of the land outside the Regulated Area to construct the golf course referred to in 4.4 is 1,137,614m3. The operator of the landfill, and constructor of the golf course, shall deliver a survey of the whole of the land to Council and the EPA of NSW every six months until the golf course is completed when a final survey shall be delivered which demonstrates that there is 1,137,614m3 or less of VENM or ENM on the golf course outside the Regulated Area in situ. 4.6 The number of truck movements permitted in connection with the landfill operation and construction of the golf course will be 55 per day on average, and the operator of the landfill shall report quarterly to Council, on the periods ending 31 March, 30 June, 30 September and 31 December during the operation of the landfill and the construction of the golf course on the number of trucks transporting waste, VENM and ENM on a daily basis; 4.7 The total volume of waste material imported to the site to achieve the approved golf course design in the 10 years from the date of approval of the lining of Cell W and approval of the amended EPL 11395 will not exceed the volume required to fill 1,317,503 m3 of space available for filling with waste, whether that space comprises void space created by excavations or whether it comprises air space between the existing ground level and finished ground levels (excluding capping) in the Regulated Area in accordance with the approved golf course design; 4.8 VENM and ENM can be imported to the site for the construction of the golf course to achieve the approved golf course design; 4.9 No VENM or ENM can be exported off the site. 4.10 The surveys to be given to the EPA pursuant to EPL no. 11395 shall be delivered to the Council within 7 days of delivery of the survey to the EPA. 5. All previous orders as to costs in favour of the first and third respondents are set aside, but any costs orders made in favour of the 2nd, 4th and 5th respondents stand. 6. Otherwise, all parties will pay their own costs of the proceedings. 7. The Consent Orders hearing set down for 17 October 2014 be vacated. The Court notes the following: 1. The space available for filling with imported waste material referred to in Order 4.7 is to be within the area regulated by the Environment Protection Authority in accordance with the Environment Protection Licence no 11395 ("the Regulated Area"). 2. VENM and ENM will be excavated in the Regulated Area, and used both within and outside the Regulated Area to build the golf course in accordance with Order 4.4 above. 3. The estimated waste to be imported to the Regulated Area over the 10 year period is 1,029,299 tonnes. This estimate has been derived from the average compaction rate of one tonne to 1.28 cubic metres calculated over the 10 year period at the Mangrove Mountain Landfill from 2003 to 2013. 4. It is estimated that the lining of Cell W will be completed by 30 April 2015.
There was no requirement expressly stipulated in the 2014 consent orders for VT (or any other entity) to obtain further development consent in order to carry out the works specified by the orders.
It was not in dispute that prior to the making of the 2014 consent orders, the Council sent its own waste to the landfill on the land.
Conditional upon the 2014 consent orders being made, Mangrove Properties purchased the land from the RSL for the sum of $750,000. The transaction was completed on 12 September 2014. Tony Tartak's stated motivation for the purchase was to give him more control of the subject site (T1006:29-37). Tony Tartak stated that he would not have allowed this transaction to proceed to completion had the 2014 consent orders not been made.
The sale transaction itself was precipitated by an approach received by Tony Tartak from a consultant acting on behalf of the RSL in December 2013, shortly after the 2013 Heads of Agreement had been made. The RSL wanted to sell the land because "the RSL is concerned about potential bad press in relation to the landfill and the current Court proceedings, as well as environmental issues created before you came on the scene. The site is a headache. The RSL wishes to sell the site and wants to know if you might be interested in buying it".
The 2014 consent orders were entered on 10 November 2014.

[9]

Events After the Making of the 2014 Consent Orders

The VT and associated entities responded to the making of the 2014 consent orders by preparing revised versions of the management plans, namely the 2014 LEMP (dated 3 November 2014) and the 2014 LMP (dated 6 November 2014).
The 2014 LEMP and 2014 LMP were submitted to the Council under cover of the Hunt & Hunt letter of 7 November 2014. The letter stated: We refer to the Consent Orders dated 29 August 2014. In conformity with those Consent Orders we served the LEMP 2014 on 6 November 2014 and the LMP 2014 today…
The 2014 LEMP and 2014 LMP were not consistent with the 2014 consent orders. First, the final landform and golf course layout proposed under the 2014 LEMP was materially different from the landform and the golf course layout proposed under the Amended 2013 LEMP referred to in the 2014 consent orders. Second, the 2014 LEMP included major landform changes to the non-licensed (or non-regulated) area of the land when compared with the Amended 2013 LEMP. Third, the 2014 LEMP proposed a much greater area and volume of fill in the southern section of the golf course than the Amended 2013 LEMP.
The VT parties therefore conceded in Court that there were "differences in the later 2014 documents [2014 LEMP and 2014 LMP] not referred to in the Court orders" (T226:05-19). These changes were acknowledged to go beyond those referred to in order 4 of the 2014 consent orders (T226:15-19). This concession caused the VT parties to amend their points of claim in their proceedings to exclude from the definition of "Magic Mountain Landfill and Golf Course" the changes made by the 2014 LEMP and 2014 LMP.
The VT parties acknowledged that the changes to the works described in the Amended 2013 LEMP purportedly effected by the 2014 LEMP and the 2014 LMP did not fall within order 3(a) of the 2014 consent orders. Likewise, they accepted that Gosford CC never formally approved the 2014 LEMP or the 2014 LMP pursuant to order 3(b) of the 2014 consent orders.
On 23 September 2015 VT made an application to vary EPL 11395 pursuant to the 2014 consent orders ("the 2015 EPL variation application"). The 2014 LEMP and 2014 LMP were submitted in support of its 2015 EPL variation application.
Under the 2015 EPL variation application, VT sought permission to carry out the scheduled activities of waste processing and waste storage. These activities were not previously permitted under EPL 11395. Only landfilling had been permitted.
By way of letter dated 23 December 2015, the EPA notified VT that it had assessed the 2014 LEMP, the 2014 LMP and various sub-plans submitted by VT. The EPA stated that additional information was required and set out the issues that needed to be addressed by the provision of more information, including details of the proposed waste processing and waste storage and further required assessment pertaining to water pollution, stormwater, leachate, groundwater and monitoring.
On 16 March 2016 Gosford CC wrote to VT indicating that it had received from the EPA a copy of the "LEMP 2014" and that there were details in it that appeared to differ from the Amended 2013 LEMP. The letter went on to say: The Court Orders required that the development consent DA23042/1998 be carried out in accordance with the LEMP 2013 as amended in the Court Orders. … If it is intended that the LEMP 2014 is to be an operational document, if it is inconsistent with the LEMP 2013, the Court Order require that the applicant make an application to Council to amend development consent DA23042/1998.
In April 2016, prior to the determination of the 2015 EPL variation application, the EPA's Environmental Guidelines Solid Waste Landfills, dated 1996 ("the 1996 Landfill Guidelines") were superseded by a 2016 version of the Landfill Guidelines ("the 2016 Landfill Guidelines"). This was significant because the landfill described in the Amended 2013 LEMP and 2013 LMP was designed to comply with the 1996 Landfill Guidelines and not the 2016 Landfill Guidelines, the latter of which prescribed more demanding minimum standards, including landfill cell lining for general solid waste.
The Local Government (Council Amalgamations) Proclamation 2016 came into effect on 12 May 2016, and pursuant to cl 17 "anything done or omitted to be done by a former council and having any force or effect immediately before the amalgamation day continues to have effect as if it had been done or omitted to be done by the new council".
There is no question, therefore, that the acts of Gosford CC are not attributable to the Council by reason of their amalgamation.
On 14 June 2016 VT submitted the 2016 LEMP, which was a version of the 2014 LEMP as amended on 14 June 2016, and an accompanying 2016 LMP of the same date, to the EPA.
The 2016 LEMP and 2016 LMP proposed the same final landform as proposed under the 2014 LEMP. Changes were made to the 2014 LEMP and 2014 LMP in the 2016 LEMP and 2016 LMP to address the issues the EPA had raised in its letter of 23 December 2015. As was the case with the 2014 LEMP and the 2014 LMP, the 2016 LEMP and 2016 LMP proposed material changes that were not contemplated under the Amended 2013 LEMP and the 2013 LMP.
Around September 2016, the EPA commissioned Alan Dyer, a landfill expert, to undertake an independent environmental review of the available documentation relating to the landfill design and operation and its proposed expansion, including the operational management plans. The Technical Environmental and Operational Review Mangrove Mountain Landfill Wisemans Ferry Road, Mangrove Mountain NSW by SLR Consulting Australia Pty Ltd ("the Dyer Report"), was dated 5 May 2017. The Dyer Report stated that the review "is intended to inform the EPA's licence review process." The versions of the management plans reviewed in the Dyer Report were the 2016 LEMP and 2016 LMP.
In the Dyer Report it was noted that community members and representatives had raised a number of concerns with government entities and the EPA about the appropriateness of the proposed landfill development and its potential negative impact on the environment.
Following the publication of the Dyer Report, VT submitted to the EPA further revised versions of the LEMP and LMP, that is, the June 2017 LEMP and 2017 LMP.
The EPA wrote to the Council on 21 June 2017, attaching a copy of the Dyer Report and indicating that the EPA had now assessed the latest (June 2017) versions of the LEMP and LMP. The EPA stated that it had determined that it was able to vary the licence in accordance with the latest version of the LEMP and LMP "subject to clarification and conformation from Council that a valid development consent is in place for the proposal". The letter went on to say: 1. The EPA notes that the 2017 Plans now differ from the Plans referenced in the 2014 Consent Orders. Therefore, the EPA seeks advice from Council on whether the 2017 Plans can be implemented in accordance with the Consent.
The letter specifically referred to certain aspects of the VT proposal as varied by the later versions of the LEMP and LMP which "appear to be inconsistent with the terms of DA 23042/1998, its two subsequent amendments and the 2014 Consent Orders".
The Council replied by way of letter of 8 August 2017, indicating that: It is now a matter for the operator to secure a development consent for the proposed use, and it remains the Council's preference and position that the operators seek to achieve that by either a 'fresh' development application of s 96 application to modify the existing consent under the Environmental Planning and Assessment Act.
On 2 August 2018 VT lodged a second application to vary EPL 11395 ("the 2018 EPL variation application"). The 2018 EPL variation application was in materially similar terms to the 2015 EPL variation application. In support of the 2018 EPL variation application, VT submitted a version of LEMP and LMP as amended at October 2017 ("October 2017 LEMP" and "October 2017 LMP").
The October 2017 LEMP was essentially a duplicate of the Amended 2013 LEMP with additional notations. The front cover was dated "04 February 2014" but has a revision date of "10/10/2017" and contained the note "Addition of Post Submission Note 1: Fill Mount to be reduced by 6 m (not 7.4 m) in accordance with the Consent Orders". The revision omitted any references to the amendment to the LEMP contained in the 2014 LEMP, the 2016 LEMP or the June 2017 LEMP.
The EPA refused the 2018 EPL variation application on 9 August 2018, due to an absence of requisite development consent under s 50(2) of the POEOA and on its merits.
The October 2017 LEMP included plans showing the landform prior to amendments made to the landform by the 2014 LEMP and 2014 LMP. That is, it included the superseded version of the Mackay & Sons Appendix III golf course plan. The layout of the golf course shown in that plan reverted to the layout proposed in the Amended 2013 LEMP.
On 21 December 2018 VT submitted to the Council a 2018 development application ("the 2018 DA"). The Statement of Environmental Effects accompanying the 2018 DA described the "Need for the Proposal" as for the development of a regional landfill.
The 2018 DA was supported by a revised version of the LEMP (dated 18 December 2018) ("2018 LEMP") and an accompanying 2018 LMP.
The landform proposed under the 2018 LEMP was the same as the landform proposed under the 2014 LEMP. The Grinsell & Johns Survey Figure E was identical to the Figure E contained in the 2014 LEMP and the Mackay & Sons Appendix III golf course plan was the same as the version in the 2014 LEMP, except that the contours were displayed on it.
Included with the 2018 DA, however, was a plan identifying differences between the 2014 proposed development and the 2018 proposed development, including the construction of two additional large sediment basins with linking overflow channels. The presence of these structures was not reflected in any earlier landform plans.

[10]

Subsequent Litigation

The EPA had not determined the 2015 EPL variation application as at 31 May 2018, and therefore, VT filed a Class 1 appeal in the Court on that day appealing the deemed refusal of the variation application.
On 9 October 2018 Moore J dismissed the appeal, holding that the proceedings were commenced outside of the period within which an appeal from a deemed refusal could be brought (Verde Terra Pty Ltd v Environment Protection Authority [2018] NSWLEC 159).
VT filed a Class 1 appeal in respect of the EPA's refusal of the 2018 EPL variation application on 10 August 2018 ("the 2018 Class 1 appeal").
On 18 October 2018 Moore J delivered a judgment joining the Council as the second respondent to the 2018 Class 1 appeal (Verde Terra Pty Ltd v Environment Protection Authority (No 3) [2018] NSWLEC 161).
On 22 November 2018 the Council filed an Amended Statement of Facts and Contentions in Reply contending, among other things, that the EPA, and the Court on appeal, lacked the power to approve the 2018 EPL variation application absent further development consent to carry out the works proposed by the 2018 EPL variation application.
Because the Council had not determined the 2018 DA by 1 April 2019, VT also filed a Class 1 application with the Court that day, appealing the deemed refusal of the 2018 DA ("the 2019 Class 1 appeal").
In addition, VT commenced Class 4 proceedings by way of summons filed on 1 April 2019 (proceedings 2019/101279, or "the VT proceedings").
On 1 July 2019 the Council filed a Statement of Facts and Contentions in the 2019 Class 1 appeal contending that the 2018 DA sought consent for designated development or for alterations and additions for a use of the land for which there was no development consent as required.
The same day, the Council commenced related Class 4 proceedings by way of summons against the VT parties and the EPA, seeking orders that specified variations to EPL 11395 issued by the EPA be set aside (proceedings 2019/203552, or "the Council proceedings").
Finally, on 26 July 2019 the Council filed a cross-summons to the VT proceedings ("the Council cross summons"), naming MML and Mangrove Properties as the second and third-cross respondents respectively.
Since the making of the 2014 consent orders, the VT parties have not accepted any further waste on the land.

[16]

The Council's Cross-Summons

If the VT parties are unsuccessful in the VT proceedings, it is, as the parties agreed, strictly not necessary for the Court to consider the cross-summons and the Council's proceedings.
In its cross-summons the Council seeks, among other things, declaratory relief that it was an implied condition that development consent be obtained for the works referred to in the 2014 consent orders, together with an order that the 2014 consent orders be set aside on the basis that they purported to order development that exceeded the jurisdiction of the Court under s 124 (now s 9.46) of the EPAA.
Much of the Council's cross-summons was defensive to the relief claimed in the VT parties' pleadings. The declarations sought were to the effect that the 2014 consent orders authorised landform modification only to the extent reasonably necessary for the purpose of remodelling the golf course as described in the 1992 EIS and 1997 LEMP and not any subsequent iteration of the LEMP or LMP, including the Amended 2013 LEMP. Accordingly, to carry out the works referred to in the 2014 consent orders further development consent was required. Alternatively, to the extent that the 2014 consent orders purported to permit works pursuant to subsequent versions of the LEMP and LMP absent further development consent being obtained, the 2013 Heads of Agreement procuring the orders were void for illegality, irregularity or were against public policy and/or were frustrated and could not be performed.
Consequential injunctive relief was sought by the Council. It did not, however, seek any orders for remediation of the land in the event that the 2014 consent orders were set aside.
In points of defence filed 5 September 2019, the VT parties pleaded that the Council was estopped from impugning the 2014 consent orders, including by asserting that development consent is required to carry out the development referred to in those orders. It also pleaded that the Council is statute barred from filing its cross-summons because it is out of time pursuant to r 59.10 of the Uniform Civil Procedure Rules 2005 ("UCPR").

[26]

Evidence

The parties relied on voluminous documentary evidence put before the Court.
In addition, the VT parties relied upon the following lay evidence: 1. two affidavits of Tony Tartak sworn 7 February and 31 March 2020; 2. two affidavits of Mary Tartak (Tony Tartak's wife) sworn 7 February and 31 March 2020; and 3. two affidavits of Damian Ryan affirmed 6 February and 20 October 2020.
The following expert evidence was relied upon by the VT parties: 1. the surveying and photogrammetry reports of David Byrne dated 31 July and 25 October 2019; 2. a joint surveying report by Byrne and Erik Birzulis dated 11 November 2019 ("the joint surveying report"); 3. the reports of Dr Ronald Rowe, a civil engineer (geotechnical and geoenvironmental), dated 26 July and 3 October 2019; 4. joint engineering reports of Dr Rowe and James Mackenzie dated 13 and 25 November 2019 ("the joint engineering reports"); 5. the quantity surveying report of David Lawson dated 5 February 2020; 6. the joint quantity surveying evidence of Lawson and David Madden dated 7 April 2020 ("the joint quantity surveying evidence"); 7. a desktop Mangrove Mountain hydrogeological review of cell W dated April 2013 by Rod Harwood, a hydrogeologist; 8. a forensic accounting report by Dr Rodney Ferrier dated 31 March 2020; and 9. a joint forensic accounting report by Dr Ferrier and Nicholas Gaudion dated 10 July 2020 ("the joint forensic accounting report").
The Council relied on cognate expert reports from: 1. Erik Birzulis, a registered surveyor, dated 17 September 2019; 2. the joint surveying report; 3. Mackenzie, a civil engineer, dated 20 September 2019; 4. the joint engineering reports; 5. David Madden, a quantity surveyor, dated 18 March 2020; 6. the joint quantity surveying evidence; 7. the forensic accounting evidence of Gaudion dated 20 March 2020; and 8. the joint forensic accounting report.
It also relied upon two lay affidavits from: 1. Rebecca Dixon, a partner at Ashurst (the legal representative of the VT parties), affirmed 23 October 2019; and 2. Martin Ball, the solicitor for the Council, sworn 25 October 2019.
The Court visited the land on 22 November 2019. During the site visit it inspected the golf course, the mound of waste, the excavation comprising cell W, various stormwater and leachate ponds, and observed pegs marking out the locations of proposed cells X, Y and Z. The Court's attention was specifically drawn to the landform proposed by the 1992 EIS, the 1997 LEMP, the Amended 2013 LEMP, the 2014 LEMP and the 2018 LEMP. As the Court summarised, the site was characterised as having "a large hole and a large mountain of waste" (T1365:32-33).

[27]

Legislative Framework

It is useful to set out the legislative framework governing the disposition of the issues raised by the two sets of proceedings (with the exception of the abandoned tenth and eleventh issues).
Section 76A of the EPAA relevantly states (now s 4.2): 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, and (b) the development is carried out in accordance with the consent and the instrument. (2) For the purposes of subsection (1), development consent may be obtained: (a) by the making of a determination by a consent authority to grant development consent, or (b) in the case of complying development, by the issue of a complying development certificate.
The Div in which s 76A is located is "subject to the other provision of this Act, unless express provision is made to the contrary" (s 76C of the EPAA), which includes s 124.
Section 124 of the EPAA is in the following relevant terms: 124 Orders of the Court (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. (2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may: (a) where the breach of this Act comprises a use of any building, work or land - restrain that use, (b) where the breach of this Act comprises the erection of a building or the carrying out of a work - require the demolition or removal of that building or work, or (c) where the breach of this Act has the effect of altering the condition or state of any building, work or land - require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed. … (4) The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court. (5) Nothing in this section affects the provisions of Division 3 of Part 3 of the Land and Environment Court Act 1979.
Clause 35 of Sch 3 of the EPA Regulations provides: 35 Is there a significant increase in the environmental impacts of the total development? Development involving alterations or additions to development (whether existing or approved) is not designated development if, in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development (that is the development together with the additions or alterations) compared with the existing or approved development.
Finally, ss 50 and 58 of the POEOA concerning the licencing of development controlled under the EPAA and the variation of such licences relevantly state: 50 Timing of licensing of development requiring consent under EP&A Act (1) Licensing of development controlled under EP&A Act 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) Licence to be concurrent 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. … (4) Definitions In this section - development has the same meaning as in the Environmental Planning and Assessment Act 1979. development consent means consent under Part 4 of the Environmental Planning and Assessment Act 1979, and includes approval to carry out a project or infrastructure under Part 3A or Part 5.1 of that Act. … 58 Variation of licences (1) The appropriate regulatory authority may vary a licence (including the conditions of a licence). (2) A variation includes the attaching of a condition to a licence (whether or not any conditions have already been attached), the substitution of a condition, the omission of a condition or the amendment of a condition. (3) A licence may be varied on application by the holder of the licence or on the initiative of the appropriate regulatory authority. (4) A licence may be varied at any time during its currency, including on its being transferred to another person. (5) A licence is varied by notice in writing given to the holder of the licence. (6) If: (a) the variation of a licence will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence, and (b) the proposed variation has not, for any reason, been the subject of environmental assessment and public consultation under the Environmental Planning and Assessment Act 1979, the appropriate regulatory authority is to invite and consider public submissions before it varies the licence.

[28]

The Operation and Effect of the 2014 Consent Orders on the 1998 Consent (Issues 1 and 7)

Issues 1 and 7 concern the scope and effect of the 2014 consent orders having regard to the terms of the 1998 consent. It is convenient to deal with them together given their inextricably intertwined nature.
The VT parties essentially argued that: 1. properly construed, the 2014 consent orders required the 1998 consent to be carried out in accordance with the express terms of those orders absent any need to obtain any further development consent or any other approval; and 2. the 2014 consent orders did not require any further development approval to be obtained in order to effect their compliance, rather they specified how the 1998 consent was to be carried out. The making of the 2014 consent orders therefore meant that the Court had necessarily determined that those works formed part of the development authorised by the 1998 consent.
The Council's submissions can be summarised as follows: 1. while the 2014 consent orders ostensibly authorised development in accordance with the Amended 2013 LEMP and 2013 LMP, as subsequently amended in later versions of those management documents, those revisions were not in accordance with the requirements of the 2014 consent orders, and therefore, no concomitant variation to EPL 11395 could be approved. On the contrary, the amendments made to the Amended 2013 LEMP and 2013 LMP were materially different to the 2014 consent orders; and 2. the 2014 consent orders must be construed to reflect a valid exercise of power. Because s 124 of the EPAA is the source of power to make the 2014 consent orders, the Court's jurisdiction was limited only to making orders to carry out works that remedied a breach of that Act (as expressly stated in s 124). While a remedial order that requires works under s 124 of the EPAA may obviate the need for development consent for those works, the 2014 consent orders could not validly have the effect of ordering development to be carried out without the necessary statutory approvals first being obtained where those approvals were required. While the 1998 consent approved the reconstruction of the golf course, it did not approve development for the purpose of a regional waste disposal facility. This type of development was not permitted by the 2014 consent orders. It requires development approval which, subject to the application of cl 35 of Sch 3 of the EPA Regulations, required an EIS. Even giving the 2014 consent orders their fullest effect, there was no approval granted either in 1998 or by the making of the 2014 consent orders, for development for the purpose of a regional waste disposal facility. The Court had no power to order the works the subject of the 2014 consent orders if, properly construed, this was their effect. Put another way, no orders made pursuant to s 124 of the EPAA could authorise the development described in the Amended 2013 LEMP and 2013 LMP.

[29]

The Proper Construction of the 2014 Consent Orders

The scope of the works to be carried out pursuant to the 2014 consent orders and the precise meaning of those orders gives rise to a question as to their proper construction.
Although the VT parties submitted that the issue strictly did not need to be determined by the Court if it was accepted that the Council was estopped from looking behind the 2014 consent orders, in my view, little turns on whether the issue is dealt with at this juncture or after determination of the estoppel contentions. The matter falls for resolution in the event that the Court either does not accept, or is in error in respect of, its conclusion concerning the application of the principles of estoppel and related doctrines.
The principles applying to the construction of consent orders are generally consistent with those applied to the construction of statutory instruments (Ford Motor Company of Australia Limited v Tallevine Pty Ltd (as Trustee of the Thornleigh Trading Trust) [2019] NSWSC 1914 at [63]). Prima facie, court orders should, so far as practicable, be self-standing (Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317 at [28]-[29] and Rafailidis v Camden Council [2015] NSWCA 185 at [48]).
In Brown Brothers Waste Contractors Pty Ltd v Pittwater Council (2015) 90 NSWLR 717; [2015] NSWCA 215 McColl JA stated the principles for construing consent orders as ([165]-[167], footnotes omitted): 165 As a matter of course, "injunctions should be granted in clear and unambiguous terms which leave no room for the persons to whom they are directed to wonder whether or not their future conduct falls within the scope or boundaries of the injunction". It is "an elementary principle of justice and fairness that no order will be enforced by committal unless it is expressed in clear, certain and unambiguous language". An "injunction should indicate the conduct which is enjoined or commanded to be performed, so that the defendant knows what is expected on its part". 166 In Athens v Randwick City Council, Hodgson JA was of the view that the court could "consider context in the case of consent orders, in much the same way as one can consider context in construing a contract". His Honour referred with approval to Kirkpatrick v Kotis, where Campbell J (as his Honour then was) discussed authorities supporting this proposition and concluded that "[t]he type of surrounding circumstances which can be used are those which can be used to construe a contract, in accordance with the principles laid down by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of (NSW) (1982) 149 CLR 337 at 352". 167 Although it has been said that it "appears to be an open question whether, before resort can be had to the reasons for judgment of a court for the purpose of construing its orders, the orders must contain an ambiguity", where such ambiguity is found, the court can have regard to extrinsic evidence. Such evidence may include "reference to the proceedings in which the judgment is given, particularly the pleadings".
In Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 Basten JA provided this summary (at [64]): 64 In order to construe an order, a court should: (a) identify the statutory power under which the order was made (to avoid a construction leading to invalidity); (b) address the language used, to identify a plain meaning if one is available; (c) if latent ambiguity is alleged, refer to the reasons for judgment and the application to which the order responded; (d) in the event of ambiguity (or other uncertainty), not resolved by reference to the reasons for judgment and the terms of the application, look to the submissions and (possibly) other material before the judicial officer on the application.
Extrinsic evidence is available as an aid in the construction of orders when the language of a consent order (such as orders 1, 2 and 3 of the 2014 consent orders) is ambiguous or susceptible to more than one meaning (where there is no ambiguity, the position is more equivocal) (AVS Group of Companies Pty Ltd v Commissioner of Police (2010) 78 NSWLR 302; [2010] NSWCA 81 at [98], Wende at [60]-[63] and Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 at [30]-[31]).
In construing an order of a court, the context in which the order was made should be considered, including the statutory context (AVS at [98] and [99]).
It therefore follows that where there is no judgment giving rise to the orders because they were made by consent, as in the present case, regard may be had to the originating process and pleadings (Newcastle City Council v Leaway Pty Ltd [2005] NSWLEC 619 at [32]).
As was set out earlier in the judgment, the Court was taken to the contextual material surrounding the making of the 2014 consent orders, such as the 2012 proceedings pleadings and the written and oral submissions provided to the Court during the 2014 consent orders hearing, as an aid to construing the orders.
Applying the principles set out above, what is therefore the scope and operation of the 2014 consent orders?
There is no statement or finding as to the nature of the development the subject of the 2014 consent orders other than that contained in the chapeau to the orders which expressly referred to the 1998 consent as being development consent "for the landfill and proposed remodelling of the Mangrove Mountain Golf Course". The 2014 consent orders were replete with references to the "landfill" and the "golf course".
The chapeau does not apply to orders 5 to 7, which stand alone and relate to procedural matters relevant to the 2012 proceedings. Of relevance, therefore, are only orders 1 to 4.
Orders 1 and 2 require VT and MML to comply with the terms of the Amended 2013 LEMP and 2013 LEMP, "subject to order 4".
Order 3 set out the circumstances by which the Amended 2013 LEMP and the 2013 LMP can be amended. Only two exceptions to the prohibition against amendment are provided: first, order 3(a) requires those documents to be amended to reflect the consequences of a 6 m reduction in the mound on Area B rather than a 7.4 m reduction; and second, significantly, order 3(b) stipulates that any further amendment of those documents can only occur with the consent of the Council pursuant to the operation of the statutory processes under the EPAA (or any equivalent statutory scheme in the future). It was uncontroversial that no such consent was given by the Council and that there is no equivalent statutory scheme.
Importantly, order 4 set out the specific requirements of the works that were to be carried out "in accordance with the Amended 2013 LEMP and the 2013 LMP". These included: 1. 6 m of waste was required to be removed from the Area B mound and moved into cell W (order 4.1). This could only be carried out once cell W had an approved lining, by way of variation to EPL 11395 (see order 4.3); 2. 2.4 m of final capping was to be placed on the Area B mound to achieve a final mound height of RL 341.4 (order 4.1); 3. a time limit was set for moving the waste from Area B to cell W of 31 August 2017 (order 4.2); 4. a variation to EPL 11395 was required to permit work in accordance with the Amended 2013 LEMP and 2013 LMP (order 4.3); 5. the final contours of the land were to accord with the golf course design by McKay & Sons reproduced at Appendix III to the Amended 2013 LEMP. These were to be amended to reflect the 6 m (not 7.4 m) reduction to the mound on Area B. The orders contemplated that reducing the height of the mound in Area B would require amendment to the plans in the Amended 2013 LEMP and 2013 LMP plans to reflect the reduction to 6 m. VT and MML were to deliver the plans to all parties (order 4.4); 6. only VENM and ENM were to be placed outside the regulated area. This was, as the Council noted, different to the Amended 2013 LEMP and 2013 LMP, which proposed a broader range of material (order 4.5); 7. no more than 1,317,503 m3 of waste could be imported onto the land to achieve the approved golf course design (order 4.7); and 8. the construction of the golf course was required to be completed and the landfill operation closed within 10 years from the later of: 1. the EPA granting an amended EPL 11395 reflecting the content of the Amended 2013 LEMP and 2013 LMP; and 2. the EPA approving the lining of cell W.
Although the 2014 consent orders required development to be carried out in accordance with the Amended 2013 LEMP and 2013 LMP this was, as order 4 indicates, dependent upon the necessary variation to EPL 11395, to reflect the content of those documents, being obtained.
Because the 2014 consent orders were orders to remedy a breach of the EPAA consequent upon a failure to comply with the conditions of the 1998 consent, in order to properly understand the meaning of those orders, it is therefore necessary to have regard to the detail of the 1998 consent.
The Council submitted that even giving the 2014 consent orders their fullest possible effect, the development currently proposed by the VT parties as disclosed by the evidence fell outside the scope of those orders because, having regard to the terms of the 1998 consent upon which the 2014 consent orders are premised, there is no authorisation for development on the land for the purpose of a waste disposal facility of the magnitude now proposed by the VT parties.
The Council argued that, properly construed, the 1998 consent was granted for development for the purpose of the reconstruction of the golf course by means of imported landfill and not for development the primary purpose of which was the operation a regional waste facility. The latter development falls outside the terms of the 2014 consent orders and cannot be carried out without further development consent which requires an EIS.
In support of its argument, the Council relied upon volumetric and other evidence (discussed below) to demonstrate that the extent of works undertaken - and proposed to be undertaken - by the VT parties on the land far exceed that required to comply with the 2014 consent orders and bore no relation to the development for the purpose of golf course remodelling as authorised by the 1998 consent.
By contrast, the VT parties contended that the works presently proposed are encompassed within the 2014 consent orders and are in conformity with the development authorised by the 1998 consent, which included permission for a landfill.

[30]

The Proper Construction of the 1998 Consent

To assist in the determination of this issue an examination of the terms of the 1998 consent is necessary.
The principles of construction applicable to development consents are settled (Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 at [42]-[48] per Meagher JA and [154]-[163] per Ward JA, Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 at [46]-[80] per Basten JA and [266]-[311] per Preston J and Elanor Investments Limited v Sydney Zoo Pty Ltd (No 5) [2020] NSWLEC 93 at [110]-[115]).
Nevertheless, the words of Mason P in House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 remain salutory (at [37]): 37 How then is the language of an historical consent to be construed? In ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 77, Kirby P (with whom Samuels JA and Hunt A-JA agreed) referred to "what, objectively determined, it might be said the Council meant by the permission which it gave to the … predecessor [in title]". I respectfully agree, but with this emphasis. The search is not for what the Council actually intended or what, if it had been interrogated about various possibilities, it would have said it intended. As an instrument having the characteristics referred to by Else-Mitchell J and Stephen J in the passages cited at [23], it must speak according to its written terms, construed in context but having regard to its enduring function. Cases such as Auburn Municipal Council v Szabo (1971) 67 LGRA 427 expound the textual interpretative principles involved.
The principles relating to the construction of consents were most recently summarised by Preston J in JK Williams Staff Pty Ltd v Sydney Water Corporation (2021) 249 LGERA 109; [2021] NSWLEC 23 (at [59]-[62]): 59 A development consent granted under Pt 4 of the EPA Act or an approval granted under Pt 3A of the EPA Act are to be construed having regard to the statutory provisions governing its grant (Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; 241 LGERA 321 at [268]) and "its enduring functions" of authorising the carrying out of the development or activity for which consent or approval was sought (Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508 at [4]). The consent or approval speaks "according to its written terms, construed in context but having regard to its enduring function": House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; 106 LGERA 440 at [37] and see [23]. The meaning of the language used in the consent or approval "is to be determined objectively having regard to the context in which the consent was issued and taking into account the fact that, unlike a contract between parties, the consent operates in rem and is for the benefit of subsequent owners and occupiers, as well as the applicant": K & M Prodanovski Pty Ltd v Wollongong City Council (2013) 195 LGERA 23 at [23]. 60 It is permissible to look at the application seeking consent or approval and the documents and plans accompanying the application in order to determine the scope and operation of the consent or approval and the development or activity for which consent or approval was sought: Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council at [57]-[59], [62], [80], [296]-[298], [302]-[305], [310] and [311]. 61 A consent or approval is to be determined in accordance with the same principles of statutory interpretation that are applicable to interpreting other legal documents. Planning permissions are not in a special category requiring adoption of a completely different approach to their interpretation: Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74 at [60], [66]. There is no general principle requiring laxity or flexibility in construing delegated planning legislation or statutory instruments, including development consents or approvals, nor do practical considerations permit a re-writing of delegated legislation or statutory instruments to meet what the court thinks is a permissible and practical outcome: Wingecarribee Shire Council v De Angelis [2016] NSWCA 189 at [20]; 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; 224 LGERA 301 at [45]; Environment Protection Authority v Grafil Pty Ltd (2019) 101 NSWLR 245; 238 LGERA 147 at [257]-[261], [272]. 62 A condition of consent or approval is to be interpreted by asking "what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the Court would have regard to the natural and ordinary meaning of the relevant words, and overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense": Trump International Golf Club Scotland Ltd v Scottish Ministers at [34].
Specific to the matters for determination in these proceedings, relevant considerations include that: 1. a development consent is generally construed according to its terms and any other document incorporated by express reference or necessary implication (Allendale at [179]); 2. these documents will include the development application, including any accompanying EIS, to determine the nature and scope of the development for which consent was sought and granted (Dungog at [59], [62] and [296]-[310]); 3. a development consent may not be granted for a development of a different nature or for something more (or less) than that sought in the development application (Dungog at [296]-[298]); and 4. development consents must be construed, wherever possible, so as to constitute a valid exercise of power under the relevant environmental planning instrument and legislative regime governing the exercise of power (Botany Bay City Council v Saab Corp Pty Ltd (2011) 82 NSWLR 171; [2011] NSWCA 308 at [83]).
As at the date of the consent, cl 45 and Form 1 of the Environmental Planning and Assessment Regulation 1994 prescribed the content of the development application, including the need to describe the proposed development. The development proposed in the 1998 DA was designated development and an EIS was required (see the 1992 EIS).
The 1998 consent is headed "Development Application No 23042 - Proposed Remodelling of Golf Course on Lot 584 DP 809570 Wisemans Ferry Road Mangrove Mountain".
At the outset the consent stated: Pursuant to section 91 of the Act, the above development application has been determined by the granting of consent subject to the conditions attached.
Conditions 1 and 2 of the 1998 consent placed limits upon the carrying out of the waste facility and the remodelling of the golf course. Condition 1 of the 1998 consent required the operation of the waste facility to be carried out in accordance with the 1997 LEMP except where modified by other conditions and the requirements of any other regulatory authority. Similarly, condition 2 required the operation of the waste facility and the remodelling of the golf course to be carried out in accordance with the 1992 EIS (except where modified by any other condition of the consent), the 1997 LEMP and the requirements of any relevant regulatory authority.
Consistent with the principles articulated above regarding the construction of development consents, in order to understand the nature and scope of the development approved by the 1998 consent, it is necessary to have regard to the 1998 DA and the documents accompanying it, namely, the 1992 EIS and the 1997 LEMP.
The VT parties submitted that upon reviewing the terms of the 1998 DA, the 1992 EIS, the 1997 LEMP and the 1998 consent (and objectively resolving any ambiguity in favour of the holder of the consent, citing Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGERA 321): 1. the development approved by the 1998 consent was two-fold, namely, for the operation of landfill and for the reconstruction of a golf course; 2. the 1998 consent authorised disturbance to the entirety of the land, not only Area B, including by landfilling with waste, with the final landform to be substantially remodelled to construct an 18 hole championship golf course; and 3. the 1997 LEMP was a "living document" which was at all times intended to be, and was authorised by the 1998 consent to be, updated from time to time (including by later versions of the 1997 LEMP and 1997 LMP) as the carrying out of works progressed to reflect more modern environmental practices as they emerged from experience and over time.
The Council, on the other hand, submitted that: 1. the landfilling activities were not authorised to operate independently of the purpose of golf course reconstruction and remodelling; 2. the landfilling activities were restricted to Area B; and 3. any further amendment to the 1997 LEMP required modification pursuant to the statutory processes contained in the EPAA (then s 96, now s 4.55) to the 1998 consent.

[31]

What Development Did the 1998 Consent Authorise?

Whether the use of the land was for the purpose of a golf course or a waste facility, or both, depends upon the proper characterisation of the 1998 consent.
The VT parties were correct in their submission that the decision in Dungog does not stand for the proposition that there cannot be use of land for more than one purpose (see Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 160-161 and Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 at 409-410), however, this is not the end of the matter.
The established principles of characterisation are relevantly as follows: 1. the task of characterisation involves questions of fact and degree (Lizzio v The Council of the Municipality of Ryde (1983) 155 CLR 211; [1983] HCA 22 at 216-217 and Penrith City Council v Waste Management Authority (NSW) (1990) 71 LGRA 376 at 384); 2. the term purpose in planning law describes the character which is imparted to the land for which the use is pursued; it is not a reference to the subjective intention of the user (Shire of Perth v O'Keefe (1964) 110 CLR 529; [1964] HCA 37 at 534-536, Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 309-311 and Macquarie International Health Clinic Pty Ltd v University of Sydney (1998) 98 LGERA 218 at 221-222); 3. the purpose of a development in planning law is the end to which land is seen to serve. It describes the character, which is imparted to the land on which the development is carried out. There may be two or more purposes, in which case it may be necessary to enquire if one purpose is subservient to another purpose. As Preston J opined in Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 (at [27]-[28], [34] and [36]): 27 In planning law, use must be for a purpose: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535; 10 LGRA 147 at 150 and Minister Administering Crown Lands Act v New South Wales Aboriginal Land Council (No 2) (1993) 31 NSWLR 106 at 121; 80 LGERA 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 at 534; 150. 28 In determining whether land is used for a particular purpose, an enquiry into how that purpose can be achieved is necessary: Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493 at 499-500; 4 LGRA 69 at 74. The use of land involves no more than the "physical acts by which the land is made to serve some purpose": at 508; 81. … 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 at 534, 535; 150 and Warringah Shire Council v Raffles [1979] 2 NSWLR 299 at 301; (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 (NSW) v Sydney City Council (1987) 61 LGRA 305 at 310. 1. the nature of the use must be distinguished from the purpose of the use. Uses of different nature can still serve the same purpose (O'Keefe at 534-535 and Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 at [27]); 2. a use of land can also be for two or more purposes which may or may not be conflicting (Pet Carriers at [28]); 3. the appropriate characterisation of the use should be described at a level of generality and not approached through a meticulous examination of the details of processes or activities (O'Keefe at 535); 4. it is necessary to consider the scope, nature and other features of the work proposed (CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 at 271-272); 5. it is also necessary to objectively examine the nature of the development from the perspective of the surrounding environment (Penrith City Council at 318, North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50 at 59E-60G and Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710 at 717, 726 and 727-730); and 6. whether a particular use of land constitutes an ancillary or a separate and independent use is likewise a matter of fact and degree (O'Donnell at 409-410).
Applying these principles, an examination of the content of the 1992 EIS, the 1997 LEMP, and the 1998 consent reveals that the purpose of the development approved by the 1998 consent was for the reconstruction and remodelling of the golf course which involved the excavation and filling of the land by the importation of waste and thus the use of the land as a waste disposal facility. That is, the use of the land for the purpose of operating a waste disposal facility was subservient to the use of the land as a golf course.
For example, the 1998 DA identified the "Type of Work" as the "remodelling of golf course" and "reconstruction of existing golf course to upgrade to 18 hole golf course". There is no doubt that the 1998 consent authorised the operation of a "waste facility" and "waste disposal operations" (see, for example, conditions 1, 2, 4, 12 and 45). But when regard is had to the content and terms of the 1998 DA, the 1992 EIS, and the 1997 LEMP (discussed immediately below), those planning instruments confirm that the nature of the development for which the 1998 consent was sought was primarily for the purpose of remodelling the golf course, albeit with recontouring occurring by the importation of landfill material.

[32]

The 1992 EIS

For example, in section 2.1 of the 1992 EIS (which discussed the need for the works) it was stated that the proposal was to configure an 18 hole golf course as shown on Plan 3.
Section 2.2 under the heading "Project Objectives" made it plain that "the primary objective of this proposal is to ultimately provide the Member and Public Players with the best possible course layout and playing conditions, in the most pleasant surrounding at no cost to the Golf Club". Such an objective is antithetical to the use of the land as a site for waste disposal.
Section 2.3 dealt with the "Project Description" and noted that G & H Todd waste disposal contractors and golf course reconstruction specialists had been engaged and that they were "to carry out the reconstruction and reinstatement of the Course to an 18 hole configuration". Plan 3 was referred to in the section as depicting the "intended new layout and revised contours".
Plan 3 showed the proposed remodelled golf course which included: 1. a new clubhouse and relocated greens shed near the western end of the land; 2. lines depicting each of the 18 holes with a blue rectangle at the tee off and a green circle at the green end of each line. The length of each of the holes was shown on a panel at the right hand side of the Plan. There was a practice fairway near the western end of the land; and 3. various earthworks proposed on the land by reference to coloured markings the meanings of which were shown in the legend. There were three areas marked A, B and C "fill area" and one area between A and B marked "cut area".
Plan 3 is consistent with the view that the excavation and filling activity on the land was not for the wholly separate purpose of the use of the land independently as a waste facility, but that this latter use was to facilitate the use of the land as a golf course.
Section 2.6 of the 1992 EIS detailed the relationship between the fairways, the proposed contours, the proposed mounds between the fairways and the design rationale that steep climbs along the fairways should be avoided: Ease of walking and adequate lines of sight require, broadly, that the fairways be located along contours. Steep climbs along fairways and from greens to tees are not acceptable. However, as the area available is barely adequate for an 18 hole golf course, there is little flexibility in regard to the layout and at least half the fairways have to lie in a north-south direction. This, then, requires substantial re-grading and filling of the deeper parts of the two major depressions which cross the Course from west to east. (The areas shaded brown on Plan no.3). The raising of these areas, together with the lowering of the crest of the intervening ridge, will result in the north-south fairways running more or less along terraces with the raising designed to reverse the drainage slopes and ensure that drainage waters are intercepted and conveyed to outfalls via sumps and pipelines. (See Plan 3B) The fill batters would not be subject to erosive overland flows. The fairways on the eastern leg of the Course are designed to follow the contours. However, the prevailing land slopes of 1 in 10 mean that there is a cross slope on each fairway of about five metres. It is planned to back this cross fall by providing mounds up to five metres high along the borders between the parallel fairways. Gaps between the mounds will provide for natural drainage.
Section 2.8.2 dealt with the "proposed method of reconstruction" and stated that the importation of fill material was the only method that would "produce the correct end result": The proposed method of reconstruction is necessary as the site can only be improved if the forgoing design features are incorporated in the reconstruction. The importation of fill materials is the only method which allows any degree of flexibility in the design process, sufficient to provide the facilities required to produce the correct end result.
The method of recontouring the golf course was explained in section 4: The general method of construction allows for maximum control over all aspects of likely impacts which could occur during the construction phase. The method of recontouring recreational land is not new and has been carried out successfully by the Club's contractor on many metropolitan sites. The site most relevant to the Mangrove development is nearing completion at Wakehurst Golf Club, Seaforth. Excavating manageable cells to win existing materials to push up and form new contours and features, and backfilling the voids thus created, with non-putrescible solid waste and clean fill is not a broad acre construction as would normally be associated with golf course construction. Cells are kept to a size which can be filled in normal one to three month time span. Therefore, large tracts of land are not opened up to the elements leading to massive and uncontrolled sedimentation problems.
In respect of the topography, the 1992 EIS said, however: With reference to Plan no. 3 and Model No. 2 it can be seen that the major change to the topography of the course is the introduction of two zones of filling A & B. The final contours will be altered to provide fairways which, in the main, follow along contour lines approximately 45 to 50 metres in width.
There was proposed to be piping of stormwater and dams as part of the design of the golf course, however, there was no mention of control of leachate from waste as would be expected if the intended use of the land was for an independent waste disposal facility (see section 4.3.1 and section 4.3.2 and accompanying plans).
Under section 4.4 entitled "Scope of Works" the fairways were to be regarded and raised by reference to Plan 3 "by excavating manageable sized cells and backfilling with selected imported fill materials." Moreover, the works "will not extend beyond the boundaries of the existing golf course site." And that: It is planned to re-grade and raise the fairways where indicated on Plan No. 3 by excavating manageable sized cells and backfilling with selected imported fill materials. The work will be executed by G. & H. Todd Pty. Ltd. Contractors with many years experience in this class of work. Documentation of past works and current projects are attached. The works will not extend beyond the boundaries of the existing golf course site. Areas affected by the phased construction are coloured brown on Plan No. 3. It is calculated that fill volumes totalling 240,000 m3 will be required to complete the reconstruction. Areas of fill per construction phase zone are as follows: Zone A, - South-Eastern Depression 60,000 cu.mtrs Zone B, - North-Western Depression 80,000 cu.mtrs Zone C, - North-Eastern Depression 30,000 cu.mtrs Zone D, - Northern Sector Mounds 60,000 cu.mtrs Tees and Greens Rebuilding 20,000 cu.mtrs

[34]

The 1997 LEMP

The 1997 LEMP accompanied the 1998 DA, compliance with which was a requirement (see conditions 1 and 2 of the 1998 consent). Regard must therefore also be had to this document.
The 1997 LEMP was prepared pursuant to the 1995 deferred commencement consent (that subsequently lapsed).
The 1997 LEMP described the development in section 1.1 in terms consonant with the 1992 EIS, namely, for the purpose of remodelling or recontouring the golf course by filling gullies: The upgrading proposed in the EIS includes reconstructing the course by filling major depressions, creating berms to regrade and separate fairways and excavating material to reshape a broad spur. The method of filling depressions is to import inert waste for controlled disposal in a licenced landfilling operation. Cover material for the landfill is to be obtained by excavation on the site. On 8 August 1995, Gosford City Council granted a "deferred commencement" development consent for the proposal. The deferred commencement provision requires that certain prerequisites be met to the satisfaction of Council before the consent could operate. In essence, the prerequisites required the following: □ a licence under the Clean Waters Act issued by the Environment Protection Authority (EPA); □ approval from the Department of Land and Water Conservation (DLAWC) for an erosion and sediment control plan; and □ a plan of management for the operation to the satisfaction of the EPA, DLAWC and Council. … The LEMP has now been amended to be consistent with the guidelines and Regulation and to provide for practical screening of inert waste, including a sampling and testing procedure, prior to acceptance at the golf course. It has been submitted to the EPA in support of an application for the site to be licensed as a "controlled waste facility" to receive inert waste, class 1.
Section 1.2 stated that the document in effect constituted: 1. a plan of management; 2. an erosion and sediment control plan; 3. a landfilling environmental management plan; and 4. a document specifying methods for the development and operation of the land.
It further said that: To fulfil its role, the LEMP specifies environmental controls incorporated into the proposal and gives their origin, such as development consent, licence condition, environmental impact statement or other source. The LEMP also contains details of environmental monitoring to be undertaken, the process for reporting monitoring results to relevant authorities and the community and corrective action to be taken should monitoring indicate that such is necessary. The LEMP is intended to be a living document which can be reviewed and updated periodically to take advantage of experience gained from operating the site, improving techniques in landfill operation or any alteration in conditions when licenses are periodically reviewed. The process for implementing and amending the LEMP is described in Section 1.4. At the time of first preparation, the LEMP incorporates environmental controls from the following sources: □ conditions of development consent; □ safeguards included in the environmental impact statement; □ practices described in the EPA landfill guidelines (EPA 1996a); and □ consideration of the circumstances of the site. Environmental controls resulting from subsequent approvals will be incorporated in later versions of the LEMP, which will be produced expeditiously following issue of any such approvals. The development consent provides for the first of three nominated filling areas, identified as Area B in the EIS, to be developed for initial filling. Approval to extend operations to the second and third landfill sites can be sought from Council after satisfactory operation of the initial landfill has been demonstrated. This first edition of the LEMP describes environmental controls in detail for Area B. Matters specific to the second and third landfills will be included in later amendments when application is to be made to extend operations to those parts of the golf course. A landfill environmental management plan is not a detailed design document. It does not contain detailed specifications and construction drawings for the works.
Revision and amendment of the 1997 LEMP was provided for in sections 1.2 and 1.4. Amendment was permitted, if not anticipated, in accordance with section 1.4 insofar as it allowed for a process of review after two years and then every three years thereafter. However, any revised plan had to be forwarded to Gosford CC and the EPA prior to its implementation. As is detailed above, there were subsequent LEMPs but none were relevantly forwarded to Gosford CC.
Sections 3.1 and 4.2 of the 1997 LEMP described the layout and the scale of the operation, with approximately 80,000 m3 of waste being deposited as fill in Area B (see Zone B in the 1992 EIS) over a period of approximately four years. Section 3.1 provided that: Figure 3.1 shows the layout of the site at the commencement of filling the north western landfill area, referred to as Area B in the EIS. The land designated for filling is approximately five hectares in area and includes upper reaches of the gully in the north-west corner of the site. An excavation area of approximately 2.5 hectares is located immediately to the south on the central spur. During the initial period when the landfill receives only clean fill, the excavation area will not be disturbed.
The filling sequence in section 4.4 indicated separate filling in three stages across Area B.
Significantly, section 4.7 provided that the landfilling was restricted to Area B with the contours of the final landform not exceeding at their highest 325 m AHD.
In my view, the 1997 LEMP also reinforces the conclusion that the 1998 consent authorised the operation of a landfill for the purpose of reconstructing the golf course in the manner described in the 1997 LEMP.
In summary, while the operation of a waste disposal facility was permitted under the 1998 consent, the excavation and emplacement of landfill on the land as a function of that operation was for the purpose of remodelling the golf course.

[35]

Was the Filling Restricted to Area B Under the 1998 Consent?

The VT parties submitted that the 1998 consent permitted filling on all areas of the land. In particular, the VT parties contended that the boundaries of Areas A, B, C and D depicted on Plan 3 of the 1992 EIS and Area B depicted in Figure 4.6 of the 1997 LEMP, were indicative only and that those instruments should be construed, along with the terms of the 1998 consent, as contemplating works across the whole of the subject land. Specifically, the VT parties relied upon: 1. the fact that Plan 3 identified three fill areas (Areas A, B and C) and revised contours to parts of the land not limited to Area B; 2. the fact that the 1997 LEMP expressly indicated that it was to be updated over time to provide details of the landfilling in Areas A and C; 3. conditions 35 and 39 of the 1998 consent both referred to "fill areas" or "filled areas", suggesting fill emplacement outside Area B; 4. sections of the 1997 LEMP, including sections 4.4 and 4.7.2, expressly referred to the progression of landfilling to "other parts of the golf course shown in Figure 2.2" and to "subsequent filling in the golf course which was described in the [1992 EIS] and is shown on Figure 2.2 of this landfill environmental management plan". Figure 2.2 of the 1997 LEMP in turn identified excavation in Areas A and C, consistent with the 1992 EIS; and 5. the omission by the Council to include a condition in the 1998 consent similar to condition 24 of the 1995 deferred commencement consent. This was consistent with the 1998 consent being an approval for landfilling operations across the land to achieve the final landform in Plan 3 of the 1992 EIS. Condition 24 stated: The landfill be initially confined within Area B on the accompanying plan with approval to progress to areas A, C and D to be issued later, subject to Council being satisfied that environmental monitoring of Area B confirms acceptable performance.
The VT parties also relied upon the joint survey report which concluded that restricting landfill activities (cutting and filling) to Area B would not provide the landform as depicted in the contours of Plan 3 of the 1992 EIS or a playable golf course, because there would be sections of fairways and greens disconnected from playing courses and with substantial vertical discontinuities.
In addition to the joint surveying report, the VT parties drew to the Court's attention the cross-examination of Byrne (T324:26-328:13 and 334:19-339:11) and Birzulis (T368:39-406:39 and 410:19-414:32) in support of the above proposition. According to Byrne, vertical discontinuities and other variances within and outside the contours in Areas A, B, C and D, and as between the contours and final landforms of Plan 2 and Plan 3 of the 1992 EIS, indicated an intention to change the landform across the whole of the subject land.
By contrast, the Council submitted that it was clear that under the 1998 consent the landfill activities were confined to Area B. This was because the 1997 LEMP set out how the development would be carried out in Area B only, and therefore, by operation of conditions 1 and 2 of the 1998 consent, the consent could only apply to that area.
The Council relied on several textual indicia in the 1997 LEMP in support of its submission, namely: 1. first, the reference to filling exclusively in Area B in section 1.2; 2. second, the description of land designated for the landfilling in section 3.1; 3. third, the filling strategy outlined in section 4.4 of the 1997 LEMP and Figures 3.1 and 4.1, which were limited to Area B; 4. fourth, section 4.2 dealing with the scale of the operation; and 5. fifth, section 4.7 which referred to the final landform "shown on Figure 4.6", the latter of which showed Area B as the only area with design contours.
The Council relied in support on the evidence of Birzulis (see the joint survey report and the Birzulis report), who opined that Plan 3 of the 1992 EIS clearly delineated the proposed landfilling areas and distinguished them from other parts of the site. It was his view that any inconsistencies between the contours on Plan 2 and Plan 3 were within anticipated margins of error or uncertainty.
The experts were cross-examined. Birzulis conceded that his evidence in support of the boundaries of Areas A, B, C and D in the 1992 EIS being clearly defined was based on various assumptions that he had made and was not evident from the text of that instrument.
Birzulis also conceded that his uncertainty thesis may not be accurate and that he lacked the statistical skill to express opinions on uncertainties in the heights of the plans in the 1992 EIS. Nevertheless, he did not resile from his opinion that the inconsistencies between the contours on Plan 2 and Plan 3 in the 1992 EIS were explicable on the basis that the plans were prepared at different times and that it was not known how the contours in Plan 3 were selected or their provenance.
Sufficient uncertainty surrounds the creation of Plan 3 of the EIS that only limited weight can be placed on the opinion of either expert surveyor with respect to its interpretation. In this regard it is noted that both experts agreed that errors or uncertainties could work "both ways" (T340-341:17 and 417:34-418:49). In any event, the correct interpretation of the 1992 EIS, the 1997 LEMP and the 1998 consent is ultimately a matter for the Court having regard to the proper interpretation of the relevant instruments applying the principles articulated above.
In my view, there is a cogent evidential basis for construing the 1998 consent as not permitting fill to be placed over the entirety of the site. That is, restricting it to Area B only. The meaning and effect of conditions 1 and 2 of the consent impose restrictions on the operation of the development the subject of the 1998 DA. That is, they impose limitations on the carrying out of the operation of the waste facility and the remodelling of the golf course by reference to the terms of the 1992 EIS and the 1997 LEMP.
The textual indicators in all three instruments favour the conclusion that fill is to be confined to Area B, or at the very least, it is not permitted to be emplaced across the entire site in the manner suggested by the VT parties.
For example, section 1.2 of the 1997 LEMP (as quoted above at [211]) is expressed as being limited to Area B. The reference in section 1.2 of the 1997 LEMP to "the development consent" is a reference to the 1995 deferred commencement consent (which lapsed). As the parties noted, that consent included condition 24. In my view, the omission of a cognate condition in the 1998 consent reinforces, contrary to the submission of the VT parties, the conclusion that the 1997 LEMP confined the emplacement of fill to Area B inasmuch as the 1998 consent does not, unlike condition 24, provide for the emplacement of fill outside Area B.
Section 3.1 of the LEMP, which stated that the fill area was approximately 5 ha and included the upper reaches of the gully in the north-west corner of the land, could only be a reference to Area B, which has an area of approximately 4.9 ha and is located in that part of the land. This is consistent with Figure 3.1 which depicts landfill Area B and no other landfill areas with the exception of excavation to the south of Area B. The reference in Figure 3.1 to the "first filling area" is, in my view, a reference to the first of three sub-areas within Area B, as explained in section 4.4 of the 1997 LEMP and as shown in Figure 4.1. No filling strategy for any other part of the site is described in section 3.1.
Section 4.2 of the 1997 LEMP sets out the "scale of the operation" and refers only to Area B that will have "a capacity of 80,000 cubic meters which will take approximately four years to fill". Again, this is consistent with the "operation" being confined only to Area B. Section 4.2 is in conformity with section 4.7 which describes the "final landform" by reference to Figure 4.6 that depicts Area B as the only area with design contours.
While it is acknowledged that there are textual indicators in the instruments that are contrary to the analysis above, these are not sufficiently compelling to permit a finding that fill was allowed to be placed across the entirety of the land.
In addition, the experts agreed that any vertical discontinuity in Area B in relation to the fill area evident on Plan 3 of the 1992 EIS had been eliminated in the 1997 LEMP. Given the express incorporation of the 1997 LEMP into the 1998 consent, and its priority over the 1992 EIS to the extent of any inconsistency, whether the boundaries were merely indicative in the 1992 EIS is immaterial because the Area B boundary and the emplacement of fill only therein was clear in the 1997 LEMP.
Even if the evidence of Byrne was accepted in its totality, the conclusion that the 1998 consent permits landfilling and landform alteration across all of the land in the manner contended for by the VT parties does not follow. His evidence did not go that far.
I therefore find that, even allowing for any uncertainty in the 1998 consent, the 1992 EIS and the 1997 LEMP, the 1998 consent approves landfilling in Area B only.
Further and in the alternative, the VT parties argued that the subsequently revised LEMPs and LMPs had the effect of modifying the 1998 consent and EPL 11395 thereby allowing fill to be deposited over all of the land.
There are several answers to this contention. First, the express terms of the 1998 consent (see conditions 1 and 2) do not permit such a possibility. Neither condition says anything about the power, or the source of the power, to modify the ambit of the operations of the waste facility and the remodelling of the golf course. The source of that power is found exclusively in the EPAA. The subsequent revised versions of the LEMP and LMP could not form the basis of any application to, or modification of, the 1998 consent under the EPAA, either as a matter of law or as a matter of construction of the 1998 consent or the 1997 LEMP. Subsequent modification of the 1998 consent could only be achieved pursuant to the statutory regime established by the EPAA (Cando Management and Maintenance Pty Ltd v Cumberland Council 237 LGERA 128; [2019] NSWCA 26 at [138]-[139] and Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737). There is nothing in either the 1998 consent nor any of the LEMPs or LMPs that could abrogate the proscribed modification processes of the 1998 consent mandated by the EPAA.
Second, the subsequent LEMPs and LMPs were not created consequent upon the "requirements of any regulated authority". The use of the word "relevant" in the expression "relevant regulatory authority" indicates that, in each condition, the expression refers to a regulatory authority which is conferred with power to modify the ambit of nature or nature of the operations. They were not approved by the Council and could not constitute revisions of the 1997 LEMP for the purpose of the 1998 consent because they were not provided to the Council as required.
In addition, the VT parties contended that conditions 1 and 2 of the 1998 consent constituted a regime of adaptive management permitting changes to made to the development allowed by the consent from time to time. It cited as authority for this proposition Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 133 (at [163]). This approach was, they submitted, envisaged by section 1.2 of the 1997 LEMP. Thus, alterations to the works authorised by the 1998 consent by adaptive management through the progressive formulation of LEMPs and LMPs with the benefit of updated knowledge, were contemplated by the 1998 consent and formal modification of the consent under s 96 of the EPAA was not required.
I do not agree for the reasons already expressed concerning the source of the power to alter the scope of the development authorised by the grant of the 1998 consent. On no view can the 1998 consent be read as permitting its unilateral (it must be recalled that the processes set out in the 1997 LEMP to amend that document have not been, as was conceded by the VT parties, followed) amendment by later revision of the LEMP and LMP. To do so would be to usurp the function of the consent authority and could result in the possibility of the development being materially different from that approved (Mison at 735-737). This potential outcome is demonstrated in these proceedings by the nature and scope of the development now proposed by the VT parties (discussed below).
I consider that the VT parties' reliance on Telstra Corporation is misconceived. That case concerned the imposition of a regime for monitoring and adaptive management as an application of the precautionary principle, which is not invoked here. The decision does not stand for the proposition that the statutory processes of the EPAA with respect to modification can be circumvented in the manner contended for by the VT parties. As was explained in Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council (2010) 210 LGERA 126; [2010] NSWLEC 48 (at [184]): 184 Adaptive management is a concept which is frequently invoked but less often implemented in practice. Adaptive management is not a "suck it and see", trial and error approach to management, but it is an iterative approach involving explicit testing of the achievement of defined goals. Through feedback to the management process, the management procedures are changed in steps until monitoring shows that the desired outcome is obtained. The monitoring program has to be designed so that there is statistical confidence in the outcome. In adaptive management the goal to be achieved is set, so there is no uncertainty as to the outcome and conditions requiring adaptive management do not lack certainty, but rather they establish a regime which would permit changes, within defined parameters, to the way the outcome is achieved.
In the present case the VT parties invoke the concept of adaptive management in a way that would maximise uncertainty and result in less, not more, environmental protection and oversight of the development.

[36]

Effect of the Variations to EPL 11395

According to the VT parties, the carrying out of the development authorised by the 1998 consent was that which was necessary to achieve the final landform depicted in Plan 3 of the 1992 EIS. The carrying out of that development was subject to the holder of the consent obtaining the EPA's permission to do so under the POEOA (see condition 18 of the 1998 consent).
The VT parties contended that the "finer-grain activities" contemplated by the 1997 LEMP were regulated by variations to EPL 11395 issued from time to time by the EPA and constituted "requirements of a regulatory authority" pursuant to conditions 1 and 2 of the 1998 consent. Therefore, to the extent that these variations allowed something different to the 1992 EIS, this was permissible under conditions 1 and 2 of the 1998 consent.
The conditions of EPL 11395 (and the variations to those conditions) said by the VT parties to regulate these "finer-grain activities" were provided in a schedule to the Court. Among other things, the VT parties submitted that they permitted the use of the whole of the land.
This claim must be rejected. First, the EPA is not a "relevant regulatory authority" for the purposes of the 1998 consent. The words "modified by…the requirements of any relevant regulatory authority" in conditions 1 and 2 of the 1998 consent do not confer upon the EPA the power to vary the scope of the operations of the development approved by the consent authority under either the EPAA or the POEOA. As stated above, neither condition says anything about the source of the power to modify the ambit of the operation of the waste facility and/or the remodelling of the golf course.
The use of the word "relevant" in the expression "relevant regulatory authority" in conditions 1 and 2 refers to a regulatory authority which is conferred with power to modify the ambit or nature of the operations described in those conditions. The EPA has no power under the EPAA to modify the scope, nature and purpose of activities approved under a development consent.
Rather, those words must be read as allowing for the imposition of additional constraints or limits, by a regulatory authority with the power to do so, on the carrying out the operations of the waste facility and the remodelling of the golf course. The conditions concern the manner of operation of the development approved by the 1998 consent and do not confer power on the EPA to expand the scope or nature of the development activity approved under that instrument. Whatever the effect of the "fine-grain activities" contained in EPL 11395 (as varied), those activities could not by their operation amplify and expand that consented to by Gosford CC. To reiterate, to do so would subvert the regulatory regime contained in the EPAA.
Second, neither the POEOA (including s 50), nor any other statute administered by the EPA, confers power on the EPA to modify the ambit of the activities approved under a development consent.
Third, s 50(2) of the POEOA confers power on the EPA to grant an EPL if there is development consent for that development. If the grant of EPL 11395 as amended had the effect of amending the 1998 development consent, then the provision would be otiose.
For the sake of completeness, I must dispense with the Council's submission that to the extent that variations to EPL 11395 referred to maximum quantities and levels that were in excess of those contemplated by the 1997 LEMP and 1992 EIS, they did not constitute "requirements" of the EPA within the meaning of conditions 1 and 2 of the 1998 consent; they merely reflected a limit imposed on the statutory permission given by the EPA under the POEOA. I do not agree. If a condition in an EPL mandates maximum quantities and levels that cannot be exceeded then, on any view, these are the requirements of that license.

[37]

The Volume of Fill in Area B Under the 1998 Consent

The next, and somewhat more problematic, issue to be determined in the task of construing the 1998 consent is the volume of fill approved in Area B. This is because notwithstanding the fact that both the 1992 EIS and the 1997 LEMP indicated that approximately 80,000 m3 of fill was approved in Area B under the 1998 consent, both Byrne and Birzulis agreed that to achieve the design contours in Figure 4.6 of the 1997 LEMP, a far greater volume of fill was required (approximately 297,000 m3).
The VT parties argued that the 1998 consent approved an unlimited amount of excavation and fill, whereas the Council submitted that only minor earthworks in Area B were approved.
I do not accept that the 1998 consent approved an unlimited amount of excavation across the land.
The unchallenged evidence of Birzulis was that the extent of the excavation required to obtain the design landform of Area B as depicted in Plan 3 of the 1992 EIS from the existing surface shown in Plan 2 was minimal, and moreover, that the excavation shown in Figure 4.7 of the 1997 LEMP in Area B would result in only approximately 78,439 m3 being excavated having regard to the known rock depth.
As the Council noted, this scale of excavation was similar to that contemplated across Areas A, B and C in the 1992 EIS. As was expressly stated in section 4 of the 1992 EIS, "excavating manageable cells…is not a broad acre construction as would normally be associated with golf course reconstruction". It was contemplated that the cells could be filled within one to three months. The size and scale of excavation proposed by the VT parties could not be achieved in this timeframe.
The Council submitted that the 1998 consent must nevertheless be construed as limiting the volume of fill material in Area B to the quantum expressed in the 1997 LEMP, that is, approximately 80,000 m3. This was because, first, it was not expressed to be an estimate, and second, it was not the task of the consent authority to determine if the volume was consistent with the design finished level.
While the latter submission is more contestable, the former may be readily accepted. If the design contours in the 1997 LEMP could only be achieved by the emplacement of fill in excess of the approximately 80,000 m3 permitted by the 1998 consent, then modification of the consent ought to have been sought (Settlers Estate Pty Ltd v Penrith City Council (2021) 247 LGERA 84; [2021] NSWCA 13 at [45]).
In any event, even if the 1998 consent is read in the manner contended for by the VT parties with respect to the volume of fill permitted on the land, it will not assist them because, consistent with the findings made above, the 297,000 m3 of fill material can only be applied to Area B for the purpose of the golf course reconstruction with limited excavation permitted in that area (approximately 73,000 m3).
To the extent that the VT parties asserted that such a construction of the 1998 consent does not conform with the development sought in the 1998 DA or as set out the 1982 EIS, it is worth observing that consent may be granted for development more limited in scope than that contemplated in the development application (see Dungog at [298] and s 80(4) of the EPAA as it then was).
Finally, as for the suggestion by the VT parties that the variations to EPL 11395 permitted unlimited cut and fill on the land, the Court repeats the reasons and conclusion above (at [237]-[243]).

[38]

The Effect of the Subsequent LEMPs and LMPs on the 1998 Consent

The VT parties repeated their submission that the express contemplation of revised LEMPs in the 1997 LEMP was consistent with the conclusion that the 1998 consent permits a degree of adaptive management, with the result that the whole of the land could be used for the purposes described in the 1992 EIS in the manner set out in the subsequent versions of the LEMP and LMP.
Even assuming that the later iterations of the LEMPs and LMPs were properly in force (which they were not insofar as the process required to be followed to revise the 1997 LEMP was not followed under condition 3(b) of the 1998 consent, a matter ultimately conceded by the VT parties in closing submissions: T1391:20), for the reasons already explained this submission must be rejected. There is no warrant to construe the conditions of the 1998 consent in such a way that the consent leaves open the possibility of the development being significantly different from that which was approved. Accordingly, and subject to the effect of the 2014 consent orders discussed later in this judgment, any subsequently revised LEMP did not have the effect of varying the development approved by the 1998 consent in the manner contended for by the VT parties.
Without commenting at this stage on the validity of the 2014 consent orders, a comparison between the development the subject of those orders by reference to the Amended 2013 LEMP and 2013 LMP ("the proposed 2014 development") and the development the subject of the 1998 consent and the 1997 LEMP, reveals that the proposed MMLGC development the subject of the 2014 consent orders is considerably larger in scope and scale. For example: 1. in the proposed 2014 development the licensed or "regulated" area of cells W, X, Y and Z have a combined void space for waste of 1,317,503 m3 and contemplate taking waste classified by the relevant EPA guidelines as general solid waste, including soil that meets the general solid waste classification, VENM, building and demolition waste not containing asbestos, glass, plastic, rubber, plasterboard, ceramics, bricks, concrete, metal, asphalt waste, wood waste, tyres and paper and cardboard; 2. the dimensions of cells W, X, Y and Z in the licenced area total 4.18 ha with excavation below the existing ground surface of a void space of 884,659 m3 and an excavation below existing ground surface to depths of approximately 30 m and 41 m; 3. in the regulated area the excavation of these cells is into the Hawkesbury sandstone bedrock intersecting with the Ourimbah Creek drinking water catchment in a location overlying an aquifer used for drinking water; 4. in the non-licensed or "non-regulated" area extensive filling of land with material under the Amended 2013 LEMP comprises VENM and ENM, but also includes other geotechnically recycled material that is exempted under a general or specific resource recovery exemption approved by the EPA; 5. the filling in the non-regulated area is proposed to cover an area of approximately 4.8 ha with average depths of 4.3 m in Stage 1, 3.5 m in Stage 2 and 2.9 m in Stage 3 (see Table 3 of the Amended 2013 LEMP at Appendix III to the Amended 2013 LEMP); and 6. of the combined cell footprint of 4.18 ha, 3.4 ha is located outside Area B (as that area was is depicted in the 1997 LEMP).
Both surveyors (Byrne and Birzulis) agreed that the proposed final landform contours under the Amended 2013 LEMP were materially different to the final landform depicted in the 1997 LEMP and the 1992 EIS forming part of the 1998 consent. For example, the proposed final landform involved a net volume of fill above the design finish levels shown in Plan 3 of the 1992 EIS of between 1,661,379 m3 (Birzulis) to 1,771,759 m3 (Byrne). This volume does not, moreover, account for the void space below ground of the excavated cells.
The considerably enlarged scale of the proposed 2014 development under the Amended 2013 LEMP and 2013 LMP was obvious during the Court's inspection of the land, especially in relation to the size of cell W and the anticipated scope and size of cells X, Y and Z.
The development the subject of the Amended 2013 LEMP and 2013 LMP did not, therefore, fall within the ambit of that which was approved by the 1998 consent as that instrument is construed.
It follows that the development the subject of the subsequent revisions of the Amended 2013 LEMP and 2013 LMP also comprised works that fell outside the scope of the 1998 consent.

[40]

What Development is Permitted Under the 2014 Consent Orders?

Having regard to the findings made above concerning the scope of the works approved under the 1998 consent, did the 2014 consent orders impermissibly authorise works the scale and scope of which was not within the contemplation of the development approved by 1998 consent? In short, did the Court have jurisdiction to make the 2014 consent orders in light of the conclusions reached above?
Significantly, the Council conceded in closing submissions that no further development consent was required to carry out the works the subject of the orders (see Anastasiou v Wallace [2020] NSWLEC 14 at [43]-[52]). In the absence of any assertion that the decision in Anastasiou was plainly incorrect, as a matter of comity, I accept the Council's submission.
Arguably this concession is sufficient for the Court to make the declaration sought in prayer 1 of the VT proceedings.
The Council submitted, however, that this was not the end of the matter because, while no further development consent was required to carry out the works the subject of the 2014 consent orders, those orders did not operate to permit the scope of the works presently envisaged by the VT parties, namely, to operate a large regional waste disposal facility on the land separate from its use for the purpose of a golf course. To the extent that the 2014 consent orders purported to do so they were beyond the power conferred by s 124 of the EPAA, and therefore, beyond the jurisdiction of the Court to make.
It was not in dispute that the source of the Court's power to make the 2014 consent orders was that contained in s 124 of the EPAA. It was also not in dispute that in making the 2014 consent orders the Court was invoking the jurisdiction conferred upon it by s 20(2) of the Land and Environment Court Act 1979.
The Council contended that the Court had no jurisdiction to make the 2014 consent orders because: 1. the works proposed in the orders were not for the same purpose as the development approved by the 1998 consent. The development the subject of the 2014 consent orders was for the independent purpose of the operation of a large regional landfill, with the golf course reconstruction having to "work around the landfill" (see the evidence of Ryan: T939:49-940:03); and 2. the power contained in s 124 of the EPAA to make the 2014 consent orders was limited to remedying a breach (actual or threatened) of the EPAA. The scope of the works contemplated by the 2014 consent orders went considerably beyond what was required to remedy the admitted breach of that Act.
The Council relied upon the evidence set out earlier in the judgment to establish that at the time of the breach of the 1998 consent giving rise to the 2012 proceedings, insofar as the 2014 consent orders required cells X, Y and Z to be created and used for the purpose of waste disposal for a period of 10 years, those works were not remedial of any breach of the EPAA for the purpose of s 124 of the EPAA.
The Council further submitted that the Court could not, pursuant to s 124, order a different use of the land to purportedly remedy a breach of an approved use. Thus, if the 2014 consent orders authorised development for the purpose of a large regional waste disposal as a wholly independent use, this use was not remedial of any breach of the 1998 consent, which approved development for the purpose of golf course remodelling. Put another way, no remedial orders could authorise the development described in the Amended 2013 LEMP and 2013 LMP, including any further revision of those management documents, referred to in the 2014 consent orders.
The Council drew to the Court's attention evidence to demonstrate that VT always intended to use the land for the purpose of establishing a large scale waste disposal operation, and not to remodel the golf course, and that the 2014 consent orders were in furtherance of this intention. In particular, the VT companies were operating as part of the Tartak family waste industry business (which included the Bingo group until Bingo Industries Pty Ltd was floated on the stock exchange in May 2017). In July 2011 Tony Tartak purchased VT for $3,000,000. His stated principal motivation in doing so was that the company had a contractual right to landfill on the Mangrove Mountain site. At the time of the purchase, the Bingo group operated a substantial skip bin business and various waste recycling/processing centres in Sydney. One of the major costs involved in carrying out the Bingo business was the disposal of non-recoverable waste from the recycling centres. At that time Bingo did not own a landfill facility.
I accept that VT was not purchased in order to use the land for the purpose of a golf course as the following exchange with Tony Tartak makes tolerably clear (T981:35-983:16): Q. So when you decided to purchase Verde Terra, I'm suggesting to you that one of the principal motivations was that it had a contractual right to landfill on that site? A. Yes. Q. And if I told you that that right was a contractual right which, in turn, appeared to have a 10-year period from 2007 to the five-year option, would that accord with your recollection? A. No. No, I can't remember. Q. I see. The other principal asset that you were aware of, that the Verde Terra company had, was the environment protection licence. Is that right? A. Yes. Q. They were the two assets that Verde Terra held which made you want to buy it, that is, the contractual right with the club to carry out landfilling activities and the right under the environment protection licence to carry out waste disposal in landfilling activities. Do you agree? A. No. What made me want to buy it, was yes, the Environment Protection Licence, yes, and the development consent, that we believe we had on the site, and so my consultants did their due diligence on that site, and they were comfortable that we had the development consent to do landfilling, and that the EPL reflected what we could do on that site, and yeah, that's what gave me comfort. And the fact that Council was, Gosford City Council was tipping waste there for a number of years, so without due diligence there, that made me comfortable to go ahead with the purchase of the business. Q. Did your due diligence extend to you in the 1998 consent, or not? A. I just can't remember any more. Not me, my consultants. Q. I see. When you say your consultants, you can't remember what they told you about the 1998 consent either, is that right? A. All I remember was that they told me, that this, that the whole, their due diligence all stacked up. They were comfortable with the fact that I could run a landfill there, and build a golf course, and I had the EPL in place, Environment Protection Licence. And what gave them and me comfort was the fact that the Council, Gosford City Council, was tipping waste there for a number of years. That's what made us comfortable to go on with this purchase of the business. Q. I see. How much did you pay for the purchase of the business? A. $3 million. Q. When was the first time you attended the site, do you remember, reparable to the timing of the sale of the business. A. It was definitely before, obviously before July 2011, but I can't remember the exact date. It was definitely before that. Q. I suggest to you that very prominent when you attended the site was a very large hill of waste, or very large mound of waste, prominent at the site. A. Yes. Q. I will put it to you, Mr Tartak, that no one suggested to you that that mound of waste was there in accordance with the development consent, is that right? A. I missed that question, I'm sorry. It cut out in the middle, I'm sorry. It's when you move back, actually. Q. Your consultants didn't tell you, or give you any comfort, that that hillside of waste was in accordance with the development consent, did they? A. They told me that everything onsite seemed to be okay. They weren't specific about the mound or anything else. Q. I see. There was a big excavation, do you remember that? Big excavated pit? A. Yes. Q. What do you say about that, are you saying that your consultants told you that was all okay as well? A. Yes, they told me that was fine. That was ready to be lined. Are you referring to Cell W? Q. You noticed Cell W? A. I noticed Cell W, yes, that was ready to be lined. Q. Did you ever, yourself, look to see whether Cell W was a feature that was permitted under the 1998 development consent. A. Not me myself, no. My consultant. Q. But your consultant told you it was, did they? A. My consultants told me that the overall site was fine and they didn't have any issues with me buying the business. They did their DD. They were comfortable with everything they had found, and if I wanted to proceed, I could. And I trusted their advice and I went ahead. Q. And did they say anything to you about Cell W? A. Not specifically, no.
Reinforcing this conclusion was the significant cross-over between the personnel managing VT and the personnel managing the Bingo group waste and recycling business. For example, Steven Sarkis was appointed as the director of VT on 18 July 2011. Sarkis had overall control of the Bingo recycling centres until he was appointed as a director of VT.
While Ryan was not sure whether there was a cross-over of those roles with Sarkis, cross-over occurred with Ros Dent, the person in charge of the Bingo group's environmental management from 2013 to October 2020. It also occurred with Ryan. Ryan was appointed as a director of the VT companies in March 2014. Up until this appointment, and since 2009, Ryan had been the Bingo Sales Manager Recycling. He was appointed as director of the VT companies because of his experience in the waste industry. He carried out services for the VT companies while he was the Sales Manager Recycling for the Bingo group; he continued to carry out work for the Bingo group after he was appointed director of VT; he continued to carry out a managerial role in the VT companies after he had resigned as director of those companies and had resumed working fulltime for the Bingo group as General Manager of Recycling; and he continued to authorise invoices for the VT companies until he left the Bingo group to take up his role as General Manager for BM Recycling Pty Ltd in 9 October 2019.
Moreover, the finances of the VT companies were controlled by a team of internal financial controllers headed by Vinod Sharma, who worked out of the Bingo Silverwater offices. This team also comprised the internal financial controllers for the Bingo group for at least some of the relevant period (see the oral evidence of Ryan, confirmed by Tony Tartak and Mary Tartak). Bingo group's core businesses were managed from the Silverwater offices.
In addition, invoices issued to MML were authorised for payment by the financial controllers for the Bingo group, as evident from the stamp "Bingo Authorisation" affixed to many of the invoices. These stamps were signed from time to time by Daniel Tartak as the General Manager or Chief Executive Officer of the Bingo group. Mary Tartak gave evidence that Daniel Tartak authorised the payment of MML invoices as the head of the Bingo companies. Ryan further confirmed that once he signed off on the invoices, there was a further authorisation process executed by Sharma and his team. In other words, it can be inferred that payments of MML invoices were authorised by employees or officers of the Bingo group.
There were other evidential indicia that the VT companies were running the MM Landfill as part of Bingo group's integrated waste disposal business operations. The Court was taken to an EPA inspection report recording a meeting at the Mangrove Mountain site on 4 April 2014, between representatives of the EPA and Ryan and Daniel Tartak. This document shows that as at April 2014, Daniel Tartak was directly involved in VT business at the MM Landfill.
Although the EPA officers were advised that VT was now separate from the Bingo group, Daniel Tartak participated in the meeting and confirmed that the EPA could install surveillance cameras and agreed to ask a surveyor to place permanent boundary markers along the cadastral boundaries to ensure that the landfill operation was operating within its licensed premises. The minutes of the meeting record that Daniel Tartak dealt directly with the EPA in relation to the MM Landfill.
In summary, as Ryan stated, the Bingo group and the VT companies were "just related businesses" (T867:41).
I accept that the evidence discloses, as at the making of the 2014 consent orders, that the VT parties intended to use the land primarily as a waste disposal facility, with the reconstruction of the golf course being secondary or subservient to this purpose. Waste disposal was the core activity of the VT companies and the Bingo group, whose business interests, personnel and accounting practices were all directed to this purpose. It may therefore be concluded that the development described by the VT parties as MMLGC in the FAPOC in the VT proceedings was for the proposed use of the land for the purposes of a waste facility "as an end in itself". This is very different from the landfilling proposed for the purpose of remodelling the golf course as authorised by the 1998 consent. It is also very different from the works contemplated by the 2014 consent orders as those orders are properly construed.
A remedial order requiring works to be carried out pursuant to s 124 of the EPAA obviates the need for development consent for those works (Cando at [128] and Anastasiou at [43]-[52]). It was no doubt for this reason that the Council ultimately conceded that no further approval was needed for the VT parties to carry out the development the subject of the 2014 consent orders, assuming that the Court was acting within power when it made them. This is because, as this Court held in Anastasiou, the provisions of the EPAA that give force to environmental planning instruments that may require development consent are "subject to" the other provisions of the Act, including s 124 (see then s 76C, now s 4.4).
It is noted in this context that it is not unusual for works the subject of orders made pursuant to s 124 of the EPAA to require development to be carried out that falls outside the terms of the original consent. This explains the breadth of the discretionary power contained in s 124.
Having said this, the Court has no power to order works that go beyond what is necessary to give effect to the statutory purpose contained in s 124 of the EPAA. For example, the Court has no power pursuant to s 124 of the Act to order some other use of the land not approved by the original consent. To do so would be to exceed the jurisdiction of the Court.
As found above, having regard to the works proposed by the Amended 2013 LEMP and 2013 LMP, the 2014 consent orders sanction works that exceed the scope of the development authorised by the 1998 consent insofar as they permit the operation of a waste disposal facility whose size and scale is considerably larger than that approved by the 1998 consent.
But this finding does not mean that the 2014 consent orders travelled beyond the jurisdiction of the Court conferred by dint of operation of s 124 of the EPAA.
This is because the words of s 124 confer an almost plenary power upon the Court to make orders to remedy a breach of the Act. The words "as it thinks fit" are not words of limitation. On the contrary, they grant the Court maximum flexibility to craft orders to remedy a breach of the EPAA. The wide remit of the Court under s 124(1) is reinforced by the terms of s 124(2) which describes what orders the Court may make "without limiting the powers of the Court under" s 124(1).
The orders made by the Court under s 124 will be the result of the Court weighing up all of the facts and circumstances of the breach before it, including what, in the Court's opinion, is required to remedy that breach having regard to these matters. Factors to which the Court may have regard in determining whether to make orders under s 124 of the EPAA will include, for example: 1. the instrument of consent and the scope and nature of the development authorised pursuant to it; 2. the nature and extent of the breach; and 3. the nature and extent of the suggested remediation, including the capacity of the person or entity in breach to carry out those works.
While the orders must be directed towards remedying the breach in question, there in nothing in the language of s 124 of the EPAA that prevents the Court from making orders for the carrying out of works that, with the benefit of hindsight, go beyond what is ultimately required to remedy that breach. Not dissimilarly, the remedy ordered may have the effect of altering, or enlarging, the activity contemplated by the original consent. If this occurs, invalidity will not automatically result. This is because the breach might give rise to a multitude of consequences, direct and indirect, that require adaptive, and sometimes expansive, orders to be made. What is permitted as a lawful exercise of power will be a matter of fact and degree. Often there is no single remedy available to the Court to rectify the breach. Rather, the Court may order "as it sees fit" works to rectify the breach in a variety of different ways. Provided that the Court does not exercise its power unreasonably or in a manner that would, as noted above, cause some different type of development to be carried out on the land that was not authorised under the EPAA, the orders will fall within the Court's power to make them under s 124 and fall within the Court's jurisdiction.
In the present case, the operation of a landfill was permitted by the 1998 consent. The use of the land for this purpose was undoubtedly amplified by the 2014 consent orders but this was not a new use; the development on the land to be carried out by those orders was the same use as that approved under the 1998 consent. While the scope, scale and size of the waste disposal operation envisaged to be carried out under the 2014 consent orders exceeds that approved by the 1998 consent, this did not render those orders invalid on the ground that they were made without power. Irrespective of the manifest intention of the VT parties to expand the operation of the landfill, the 2014 consent orders clearly mandated that the unlawful works carried out by VT, together with their attendant environmental impacts, be remedied. That is, the Court made orders as it saw fit to remedy the breach of the 1998 consent, and therefore, the breach of the EPAA. The completion of these works would result in, among other things, a reduction of the mound in Area B, the lining of cell W, the completion of the golf course recontouring and the closure of the landfill operation, all of which were activities that would remedy the breach of the 1998 consent, and all of which were uses of the land approved by the 1998 consent. The jurisdiction of the Court under s 124 of the EPAA cannot be equated, or even conflated, with the scope of the approval granted by Gosford CC in 1998. The two separate exercises of power under the EPAA serve different purposes.
That said, it must be emphasised that the above analysis is confined to the 2014 consent orders as properly construed. In other words, were the 2014 consent orders interpreted to include later revisions of the Amended 2013 LEMP and 2013 LMP (a construction that has been rejected), then I am of the opinion that the making of the orders would exceed the power conferred upon the Court by s 124 of the EPAA. Orders permitting a potentially indeterminate expansion of the scope of the works to be carried out on the land (through the device of the revised management plans) would cease to be for the purpose of remedying the breach complained of given their inherent uncertainty.

[42]

Rule 36.15 of the UCPR

The Council relied upon both the implied or inherent power of the Court and r 36.15 of the UCPR as a basis for setting aside the 2014 consent orders. The former was necessary, according to the Council, to circumvent the fact that the 2014 consent orders were entered some time ago. Given the discretionary consideration that the Court must take into account either under statute or at common law, it is difficult to conceive of a scenario where the Council could succeed at common law but not under the UCPR having regard to the circumstances of the case. Nevertheless, each is dealt with in turn.
Rule 36.15(1) relevantly states: 36.15 General power to set aside judgment or order (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.
It should be noted that the Council is not able to avail itself of the power contained in r 36.16(3) because the 2014 consent orders were plainly determinative of its claim for relief in the 2012 proceedings: 36.16 Further power to set aside or vary judgment or order (3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it - (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.
The rule in 36.15(1) of the UCPR allows for an exception to the principle of finality. As the High Court of Australia said in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 (at [34], footnotes omitted): 34 A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding.
This was reiterated in Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 it was observed that (at [15], footnotes omitted): 15 … it is important to recognise that underpinning consideration of the issues presented in this matter are fundamental principles about finality of litigation. As was said in D'Orta-Ekenaike v Victoria Legal Aid: "A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances." That tenet finds reflection in rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud and in doctrines of res judicata and issue estoppel. The principal qualification to the general principle of finality is provided by the appellate system. But in courts other than the court of final resort, the tenet also finds reflection in the restrictions upon reopening of final orders after they have been formally recorded.
Nevertheless, the principle of finality is not immutable, as observed by Mason CJ in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 (at 302-303): …the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law. As this Court is a final court of appeal, there is no reason for it to confine the exercise of its jurisdiction in a way that would inhibit its capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment. However, it must be emphasized that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put. What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases.
The power contained in r 36.15(1) is discretionary. One consideration in the exercise of that discretion is whether the setting aside of court orders may have the effect of requiring a rehearing of proceedings, which would subvert the overriding purpose of s 56 of the Civil Procedure Act 2005 ("CPA") of the just, quick and cheap resolution of proceedings. As a consequence, a court should approach the application of the rule with some reticence (Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387 at [33], [44] and [45]).
That the exceptional power contained in r 36.15(1) should be exercised cautiously finds statutory expression in the requirement that "sufficient cause" must be shown before orders may be set aside on any of the grounds set out in the rule (Kendell v Carnegie (2006) 68 NSWLR 193; [2006] NSWCA 302 at [45]).
The focus of r 36.15(1) is on the impugned orders and the question is whether it was given, entered, or made irregularly, illegally or against good faith. The enquiry is directed to the irregularity, illegality or lack of good faith in the steps or process taken to make the orders and not their merits (Heperu (No 2) at [16]). Importantly in the present context, the power contained in r 36.15(1) is generally not exercised to permit a setting aside and reopening of proceedings merely "because a party has failed to raise an apparently arguable point or seeks to reformulate a point which had been raised, but on a different basis" (Clark v Robards (No 3) [2016] NSWCA 354 at [12]). The irregularity, illegality or want of good faith must be in the procuring of the orders sought to be set aside (Huang v Wong (No 2) [2019] NSWCA 18 at [24]).
The Council expressly disavowed any suggestion that those representing VT or MML acted in any way that involved fraud, mala fides or that the parties had engaged in conduct involving moral turpitude (T245:10-14). On the evidence before the Court this concession was properly made.
Nor is there any evidence of mistake or any unconscionable conduct on the part of those representing VT and MML which undermines the entry into the 2013 Heads of Agreement to procure the 2014 consent orders. At all times during the negotiations leading up to the signing of the 2013 Heads of Agreement and the making of the 2014 consent orders by the Court, the parties were legally represented and had the benefit of expert advice.
The Council relied on two aspects of irregularity: 1. first, the failure by the parties to inform the Court of the connection between the identified breaches of the EPAA and the orders sought to be made; and 2. second, the failure of the parties to inform the Court that the subject of the orders was fundamentally different in its nature, scope and purpose compared with the development approved by the 1998 consent.
The first type of irregularity is not correct as a matter of fact. The Court had before it the pleadings, to which the Court was taken in the 2014 consent hearing. The pleadings plainly detailed the breaches of the 1998 consent by reference to fill volumes and locations that were in contravention of that approval. The Court was also provided with the Amended 2013 LEMP. In the main, the breaches were admitted to. The Court was told that there was "no dispute" that "breach of the consent occurred". The only qualification was that there was no admission that the breach had taken place as a result of the actions of the current shareholders of VT and MML. But it was unequivocally admitted that a breach of the 1998 consent had occurred between 5 April 2002 and 1 July 2011.
The parties' joint written submissions also clearly stated the nexus between the breach and the works contemplated by the 2014 consent orders: There is no dispute between the applicant Council and the first and third respondents [VT and MML] that there has been a breach of the Act and that those parties have reached agreement that would result in the remediation of the site…
The purpose of the remediation, that is, what the remediation was designed to achieve, was set out in the 2014 consent orders and the Court was told that the orders had been drafted to achieve those outcomes.
There can be no doubt, therefore, that the Court was informed on 29 August 2014 of the relevant breaches of the EPAA and the connection between those breaches and the 2014 consent orders.
As to the second complaint of illegality, it also appears from the evidence that the Court was taken to a comparison between the scope and purpose of the works approved by the 1998 consent and the works required under the 2014 consent orders. A description of the former instrument was set out in the parties' joint written submissions, with the Court's attention specifically drawn to conditions 1 and 2 of the 1998 consent and their relationship to the 1992 EIS and the 1997 LEMP. The Court was told that the 1998 consent approved an extractive industry, a waste facility and the remodelling of a golf course. The pleadings also stated that the 1998 consent authorised part of the land to be used as a waste facility that permitted non-putrescible waste to be imported onto the land to be used for the purpose of filling and land reshaping in the reconstruction of the golf course. Reference in the pleadings was made to the 1992 EIS that provided for a total volume of 240,000 m3 of fill required to complete the remodelling of the golf course. The nature, scope and purpose of the works required by the 2014 consent orders was explained to the Court as compared to that detailed in the 1992 EIS in the parties' joint written and oral submissions, including by reference to the volume of fill and the location of the fill to be emplaced on the land. It should be especially noted that the Court was told that the 2014 consent orders would result in the remediation of the breach of the 1998 consent.
Presumably, it is because of this explanation that the Council did not allege that the Court was misled in the making of the 2014 consent orders. Rather, the Council stated that the additional matters the subject of these proceedings should have been brought to the Court's attention prior to the making of the 2014 consent orders (namely, the nature and scope of the development envisaged in the 2014 consent orders).
In addition to the estoppel arguments addressed below, the VT parties submitted that in exercising the Court's discretion under r 36.15(1) of the UCPR, a consideration that the Court must take into account was the unreasonableness of the Council not raising these additional matters in the 2012 proceedings (which included the 2014 consent orders hearing), especially given their intimate connection to the subject matter of those proceedings.
In my opinion, there is overwhelming force in this submission when the facts and circumstances of the 2012 proceedings and their resolution are examined. As the evidence discloses, the Court was taken to the breach, the relevant planning instruments and the scope of the works proposed by the 2014 consent orders. It did not make the orders in a factual vacuum. While the granular detail to which the Court was taken in these proceedings was not before the Court in the 2014 consent orders hearing, it is nevertheless the case that the Court was furnished with an explanation as to the relationship between the 1998 consent, its breach and the works the subject of the 2014 consent orders.
It may be readily inferred that this was the basis upon which the Court was satisfied that a breach of the EPAA had been committed. The Court was, absent anything to the contrary, entitled to rely upon what the parties jointly told it. In particular, as the VT parties assert, these submissions were made by Gosford CC, which was the statutory body that granted the 1998 consent, commenced the 2012 proceedings and was one of the parties that urged the Court to make the 2014 consent orders.
It follows that because the rule is directed to the setting aside of, in this instance, orders, and not agreements to procure those orders, even if the 2013 Heads of Agreement was entered into unlawfully for the reasons that the Council submits, r 36.15(1) of the UCPR is not engaged (Presrod Pty Ltd v Wollongong City Council [2010] NSWLEC 192 at [67]). The entry into the 2013 Heads of Agreement by the parties to it was not a relevant illegal, irregular or improper (in the sense of contrary to public policy) step or process in the making of the 2014 consent orders. Irrespective of the content of that agreement, the Court had to be independently satisfied of the matters contained in s 124 of the EPAA, which it was.
Finally, I accept the VT parties' submission that even if there was irregularity, illegality, or impropriety in the making of the 2014 consent orders, the Council, who was, or ought to have been, apprised of all of the facts and circumstances giving rise to application to the Court to make the 2014 consent orders, acquiesced in or waived any underlying irregularity, illegality or impropriety by actively procuring and participating in their making by the Court (Reysson Pty Ltd v Roads and Maritime Services (No 4) [2016] NSWLEC 159 at [92]-[94]).
The scope and scale of the works required by the 2014 consent orders was a matter known to the Council at that time. Likewise, the Council was cognisant of the content of the 1998 consent, the 1992 EIS and the 1997 LEMP. The arguments put by the Council before this Court are arguments that could have been raised before the Court in 2014. Nothing has changed in this regard. The Council not only failed to object to the making of the 2014 consent orders but actively participated in any alleged non-disclosure by the parties to the Court that it now seeks to take the benefit of. It ought not be permitted to do so.

[43]

Implied or Inherent Power of the Court

At common law a consent order may be set aside where the underlying agreement procuring it is void or voidable (Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27 at 243-244). To similar effect was the decision in The Owners Strata Plan No 57164 v Yau (2017) 96 NSWLR 587; [2017] NSWCA 341 (at [51]-[85] per Beazley P).
The jurisdiction of this Court to set aside its own orders was accepted in Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13, where it was discussed at length (at 26-31). In particular, Shellar JA said (at 28E-29G): A superior court has power to review, correct or alter its judgment at any time until its order is perfected: see Texas Co (Australasia) Ltd v Federal Commissioner of Taxation (1940) 63 CLR 382 at 457. There is no reason to suppose that the Land and Environment Court does not have such power. It is assumed by Pt 13, r 7(b) of the Land and Environment Court Rules 1980. The occasion for exercising such a discretion is discussed in Smith v New South Wales Bar Association (1992) 176 CLR 256 at 265. By contrast, as a general rule, a perfected judgment cannot be recalled or varied: see Bailey v Marinoff (1971) 125 CLR 529 at 530, 531-532 and 535 and Gamser v Nominal Defendant (1977) 136 CLR 145. However a judgment even though perfected may be impeached on grounds of fraud and there is an inherent jurisdiction to alter an order where its form as entered or filed does not express or clearly express the intention of the court or where having been made ex parte, procedural fairness demands it: see Taylor v Taylor (1979) 143 CLR 1 at 6-7 and 16, where Mason J, as he then was, observed: "A jurisdiction to set aside its orders is inherent in every court unless displaced by statute." In Permanent Trustee Co (Canberra) Ltd (As Executor of Estate of Andrews) v Stocks and Holdings (Canberra) Pty Ltd (at 48), Brennan J, sitting as the Supreme Court of the Australian Capital Territory, gathered the exceptions to the general rule into three classes: "…those which are founded upon the inherent jurisdiction of the court to ensure that its procedures do not effect injustice; those which are authorized by statute; and those which override the general rule in order to give relief where the judgment is obtained by fraud or by an agreement which is void or voidable." A little later in his judgment his Honour continued (at 48): "When the litigant has a right to set aside the judgment on the ground of fraud, however the fraud must be alleged in a fresh action brought to try the issue (Flower v Lloyd (1877) 6 Ch D 297; Jonesco v Beard [1930] AC 301). Similarly, where the judgment is entered by consent, and a party alleges that the agreement pursuant to which the judgment was entered is void or voidable (Harvey v Phillips (1956) 95 CLR 235; Huddersfield Banking Co v Henry Lister and Sons Ltd [1895] 2 Ch 273) the issue must ordinarily be litigated in a fresh action (Wilding v Sanderson [1897] 2 Ch 534 at 549; Rayner v Rayner [1968] QWN 42)." Consent orders have traditionally been regarded as "a mere creature of the agreement": see Huddersfield Banking Co Ltd v Henry Lister and Son Ltd [1895] 2 Ch 273 at 276 per Vaughan Williams J. In the English Court of Appeal (at 280) Lindley LJ said: "… A consent order, I agree, is an order; and so long as it stands it must be treated as such, and so long as it stands I think it is as good an estoppel as any other order. I have not the slightest doubt on that; nor have I the slightest doubt that a consent order can be impeached, not only on the ground of fraud, but upon any grounds which invalidate the agreement it expresses in a more formal way than usual." In Kinch v Walcott [1929] AC 482 at 493, Lord Blanesburgh speaking for the Privy Council said of a consent order that it stands unless and until it is discharged by mutual agreement or is set aside by another order of the court. He distinguished it from other orders that stood unless and until discharged on appeal. In Harvey v Phillips (at 243-244), the High Court said: "…The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like." Their Honours then quoted part of the passage from the judgment of Lindley LJ which I have set out. They also contrasted such relief with that available where the assistance of the court was sought or invoked to carry a compromise into effect which otherwise could not be enforced by the party relying upon it: see at 242-243. In such a case the assistance may be refused on grounds not necessarily sufficient to invalidate a simple contract (at 243): "…It is not a case where a compromise has been agreed upon by counsel acting only in pursuance of his apparent or implied authority from his client but, owing to a mistake or misapprehension, in opposition to his client's instructions or in excess of some limitation that has been expressly placed on his authority. In such a case, at all events until the judgment or order embodying the compromise has been perfected, an authority exists in the court to refuse to give effect to or act upon the compromise and perhaps to set it aside…
Thus the Council submitted that because the 2013 Heads of Agreement is void or voidable on the grounds of illegality (but not fraud, as it emphasised) by reason of an absence of jurisdiction to procure it, the 2014 consent orders were amenable to being set aside notwithstanding that they had been entered.
However, in James v Australia and New Zealand Banking Group Ltd [2020] NSWCA 101 Basten JA doubted whether once a judgment was entered there was any other basis, other than that provided under rr 36.15 and 36.16 of the UCPR, to set it aside. His Honour opined as follows (at [29]-[32], footnotes omitted): 29 Judgment was entered in the present case in accordance with the UCPR. Apart from r 36.15, which will include the fraud exception, and no doubt other considerations, it is doubtful that there is any other basis other than those provided under r 36.16 (which is not and cannot be invoked in the present case) for setting aside a judgment once entered. There are indications in the judgment of this Court in Logwon that the Land and Environment Court may have a broader power to relieve against the effects of judgments "obtained by fraud or by compromise the result of mistake." Harvey v Phillips was relied upon by Sheller JA in the reasons in Logwon, but without express reference to the doubts expressed in that case as to whether the powers to reopen would apply had the orders been entered. 30 To similar effect, observations of Mason J in Taylor v Taylor were relied upon for the proposition that "a jurisdiction to set aside its orders is inherent in every court unless displaced by statute". However, that unqualified proposition was drawn from the reasoning in Cameron v Cole, discussed above, and was followed by the next sentence which qualified the scope of what had just been stated: "In my opinion the jurisdiction extends not only to the setting aside of judgments which have been obtained without service or notice to a party … but to the setting aside of a default or ex parte judgment obtained when the absence of the party is due to no fault on his part." 31 Taylor was a case in which orders had been made in the absence of a party; it provided no basis for the broader proposition than that enunciated in Cameron v Cole which, it is suggested above, is encapsulated in the present r 36.15. 32 The inability of a court to reopen orders which have been entered, otherwise than pursuant to statutory authority (including rules made under statutory authority), reflects the importance of the value of finality as an element of the rule of law. "[T]he principal qualification to the general principle of finality is provided by the appellate system." An attempt to have a trial court reopen its orders after the time for appeal has expired, without recourse to that procedure, is to undermine the statutory constraints imposed on appeals. A power to reopen would not likely be construed to allow such a course.
The reasoning in Yau does not sit comfortably with that in James. In this context, it is noted that James did not refer to Yau and his Honour's remarks are obiter dicta only.
There are at least three reasons why any argument based on the inherent jurisdiction of this Court (assuming for present purposes that such an implied power exists notwithstanding the remarks in James), does not assist the Council.
First, this is not a case where the Court, in making the 2014 consent orders, merely gave effect to the 2013 Heads of Agreement without more, as was contended by the Council. The Court, after hearing from the parties, which included the tender of evidence and the making of submissions, reached a state of satisfaction as to the fact there had been a breach of the EPAA and that the orders were appropriate to remedy this breach. To characterise, as the Council sought to do, the 2014 consent orders as orders where there had been no findings on the merits or the law is not accurate. The Court determined as a matter of fact and law that the EPAA had been breached, and moreover, as a matter of fact and law that the orders were properly remedial of that breach based on the material and arguments put to the Court by all parties, including the Council.
To the extent that the Council suggested that there was a material difference between it and Gosford CC for the purpose of this argument, this must be rejected. As the Council acknowledged, it is completely bound by the rights and obligations of the former Gosford CC (T1517:39).
Second, for the reasons given above concerning the jurisdiction of the Court to make the 2014 consent orders, there is no basis for finding illegality that would warrant them being set aside. By parity of reasoning, there is no basis for finding that the 2013 Heads of Agreement is void or voidable on the basis of illegality (again it must be recalled that the Court does not claim that the 2013 Heads of Agreement was procured by fraud).
Third, as detailed below the evidence demonstrates that there are substantial discretionary factors weighing against both the voiding of the 2013 Heads of Agreement and the setting aside of the 2014 consent orders. If nothing else, it is clear that the VT parties and third parties would be detrimentally affected by any decision to do so.

[44]

Discretionary Factors Weigh Against Setting Aside the 2014 Consent Orders or Voiding the 2013 Heads of Agreement

The VT parties relied upon the following discretionary factors that they argue militate against setting aside the 2014 consent orders or the voiding of the 2013 Heads of Agreement either under the Court's inherent power or its statutory power: 1. first, the 2014 consent orders are remedial in nature, mitigate against harm and achieve good environmental outcomes. The Council has proffered no alternative to the remediation contemplated under the orders. The primary, if not sole, purpose of the 2012 proceedings and the 2014 consent orders was to remediate the environmental harm caused by the breach of the 1998 consent, such harm is alleged to have included harm to surface and ground water. The Court was told by the parties during the 2014 consent orders hearing that the orders would result in the remediation of the land within a reasonable timeframe with appropriate controls and monitoring to minimise risk of further environmental harm. It is noted that the parties' respective landfill experts agreed that the environmental controls inherent in the 2014 consent orders improved those contained in the relevant version of EPL 11395 at that time, and moreover, that if no remediation took place there would likely be adverse environmental impacts, including on neighboring properties and on the downstream Jilliby State Conservation Area. For example: 1. leachate and gas could escape from the existing waste on-site; 2. a significant accumulation of water in the excavations of cells could occur which was likely to be contaminated by leachate; and 3. leachate could escape from current and future holes in the existing leachate pond; 1. second, the VT parties would be left exposed to further enforcement action for remediation by the EPA, the Council, or a third party (see s 9.45 of the EPAA), together with a substantial costs liability for the carrying out of the rectification works (citing Reysson at [97]-[101]). This would in all likelihood result in further disputation, and therefore, delay to the remediation of the land. It was not in dispute that if the proposed extension of the landfill to include cells W, X, Y and Z did not proceed, the current excavation would need to be remedied. To this end it was agreed that the cost of the necessary remediation works (the exhumation of waste and its subsequent disposal in landfill) would be "high" (T1233:20-26). For example: 1. in the joint quantity surveying report, the quantity surveyors estimated the costs in scenario 1 (where approximately 389,000 m3 of waste from the mound was exhumed and transported to an offsite landfill for disposal and cell W was filled in with approximately 251,924 m3 of clean fill material) to be between $197 to $66 million dollars and in scenario 2 (where the same amount of material was exhumed from the mound, cell W was lined and filled with the same volume of clean fill material and the excess was to be transported to an offsite landfill for disposal) to be between $27 to $73 million; 2. the quantity surveyors gave oral evidence to the effect that if further remediation work was required to be undertaken (as a consequence of setting aside the 2014 consent orders) which involved any volume of waste on the land to be transported offsite, the transportation costs would be incurred at a rate of between $5.18 to $5.31 per tonne per hour or from $6.19 to $8.88 per m3 per hour; 3. Madden suggested in his written evidence that the transportation of the 251,924 m3 of clean fill material could be free of charge in scenario 1. But he later conceded in cross-examination that this assumption was premised upon 11 or 12 projects in Gosford that could supply the necessary fill (T1193:26-1194:45). He also made no allowance, unlike Lawson, for contingencies such as the presence of potentially hazardous material encountered during the exhumation process (T1260:14-19, 1264: 31-33 and 1271-1272); 4. to the extent that it was suggested by the Council that the 2014 consent orders, or any future remediation order, envisaged the use of recovered fines under the resource recovery exemptions in the non-licensed areas (that is, those not regulated by EPL 11395), this was not feasible because according to Ryan recovered fines are not structural fill and "you cannot build anything on top of it. It will not hold together" (T934:44-49). It was his evidence that recovered fines can only be used as a landscaping layer prior to the application of turf. As Ryan stated, "we also have an obligation to build a golf course that will stand up. You're not going to use recovered fines for that" (T934:43-935:08); 5. in respect of whether levies or contributions imposed under s 88 of the POEOA would be payable on any waste exhumed from the land and disposed of at an offsite waste disposal facility (such as, it was suggested, the Summerhill Waste Management Centre ("Summerhill Landfill")), the quantity surveyors differed as to whether any of the VT parties would be entitled to claim a deduction. At the relevant time, the levy payable in New South Wales for mixed solid waste was $143.60 (GST inclusive) per tonne. Having regard to the provisions of the Protection of the Environment Operations (Waste) Regulation 1996 (now repealed), the Protection of the Environment Operations (Waste) Regulation 2005 (also repealed) and the Protection of the Environment Operations (Waste) Regulation 2014 ("the 2014 Waste Regulation"), it appears that the VT parties would not have a right to claim a rebate; 6. in addition, it was unlikely that any offsite waste disposal facility would be entitled to claim an exemption from the payment of waste contributions that the VT parties could take the benefit of, a proposition with which the EPA tacitly agreed (although it emphasised the speculative nature of such evidence given that none of these parties to the proceedings seek an order requiring the exhumation of waste from the land and the fact that the VT parties' position is that if the 2014 consent orders are set aside, the VT companies will be put into liquidation), at least insofar as the transportation of the exhumed waste to Summerhill landfill was concerned having regard to cl 92 of the 2014 Waste Regulation; 7. any waste to be disposed of in Queensland (as mooted by the Council) would also likely be subjected to a levy imposed under the relevant State legislation (see s 36 of the Waste Reduction and Recycling Act 2011 (Qld)) and the transportation costs would be substantial; and 8. any attempt to recover levies which the VT parties had paid prior to the making of the 2014 consent orders would in all likelihood be statute barred under s 2(1)(b) of the Recovery of Imposts Act 1963; 1. third, the VT parties would suffer immediate financial detriment if the 2014 consent orders were set aside. The detriment arises because the VT parties will have expended approximately $5 million (rounding up) in avoidable expenses in maintaining the landfill on the site and carrying out the preparatory work in anticipation of the 2014 consent orders being implemented. Thus: 1. Mangrove Properties would suffer the detriment of having purchased the land for $750,000 on 12 September 2014. Tony Tartak's unchallenged evidence was that he would not have permitted that company to have purchased the land had the 2014 consent orders had not been made; and 2. Ryan gave evidence (both written and oral) of various monies having been expended on maintenance and monitoring of the site, including the purchase of equipment for this purpose (a landfill compactor, a water cart and several excavators) (T872-875); 1. fourth, the parties to the 2012 proceedings, including specifically Mangrove Properties and AUG Investments Pty Ltd ("AUG"), TPT (NSW) Investments Pty Ltd ("TPT"), and potentially Skylife Finance Pty Limited ("Skylife"), will suffer detriment if the 2014 consent orders are set aside. The detriment to AUG and TPT arises because if the orders are dispensed with, according to the written and oral evidence of Tony Tartak, the controlling mind of AUG and TPT, those entities would not have loaned approximately $6,579,500 or $5,079,500 to MML to fund activities consequent upon the making of the 2014 consent orders. These amounts were expended quickly after they were deposited into MML's bank account (T1122:35-44). In respect of Skylife, it would not have advanced loans totalling approximately $3,956,027 to MML during the financial years 1 July 2014 to 30 June 2019; 2. fifth, the VT parties have improved the environmental management on the land. The report by Quadro Australia Pty Ltd commissioned by the VT parties after they acquired the land in November 2007 revealed deficiencies with the environmental management of it, including: 1. there appeared to be no attempt at progressive closure and rehabilitation of the site; 2. there were excessive areas of uncovered waste compared to normal industry practice, potentially generating more leachate at greater volumes than necessary; 3. the leachate transfer and storage system lacked a barrister system as required by EPL 11395, increasing the risk of contaminating the adjacent watercourses; 4. erosion control was poorly handled across the site and did not meet the requirements of EPL 11395, the 1997 LEMP or common industry practice; and 5. the existing works were having a detrimental effect on the adjacent watercourse and natural bushland to the north and west of the site. Since taking over the land VT has taken steps to improve the site's environmental management by preparing updated LMPs and LEMPs, however, if the 2014 consent orders are set aside then this work will not be permitted to continue. There is no obligation on AUG, TPT, Skylife, or the Tartak family to continue to fund the VT parties. There is therefore a real risk of an environmentally unacceptable outcome if the orders are set aside; 1. sixth, there is a substantial risk of the VT parties being liquidated because since September 2012 they have been unable to engage in their primary revenue generating business of accepting waste for landfilling. Gaudion, who gave expert financial evidence for the VT parties, opined that the VT parties had net liabilities of approximately $5 million as at 30 June 2019; 2. seventh, the Council has not explained the considerable delay in seeking to have the 2014 consent orders set aside. In the VT proceedings the delay between the entry of the 2014 consent orders and the filing of the Council's cross-summons is in excess of four and a half years; and 3. eighth, the Council has participated in landfilling activities on the land prior to the making of the 2014 consent orders. That is, the Council knew of the landfill operating on the land and had sent its own waste to the landfill prior to the making of the 2014 consent orders.
In response, the Council submitted that: 1. first, what is being proposed by the VT parties is a major waste disposal facility with an operational life of 10 years that is classified as designated development and that has neither been the subject of any statutory assessment nor has it been the subject of any public participation processes that would otherwise be required under the EPAA. The putative waste facility is in a location that is unsuitable because, on the evidence before the Court, it: 1. is within 250 m of the adjoining Jilliby Conservation Reserve; 2. is in the Ourimbah Creek drinking water catchment; 3. is within 40 m of a permanent or intermittent water body; 4. is in an area overlying an aquifer that contains drinking water quality groundwater that is vulnerable to pollution. According to Dr Rowe, the excavation of cell W had intercepted groundwater (T500:43-48) and cells X, Y and Z were proposed to be excavated below groundwater (T502:03-06) and would overlie potable ground water (T502:08-48); and 5. access to the site required an average of 110 truck movements a day over an unsealed track that appeared to be on Crown land, in circumstances where there had been no assessment of the consequential traffic and noise impacts, and moreover, no owner's consent has been provided for this access; 1. second, rather than implement the 2014 consent orders, VT instead sought to vary EPL 11395 and revise the Amended 2013 LEMP and 2013 LMP in a manner contrary to the 2014 consent orders (see paragraph 3(a) of those orders). Accordingly, VT could not rely upon those orders to undertake the development that it proposes; 2. third, VT did not act in reliance on the 2014 consent orders, and therefore, any expenditure did not amount to detriment in the relevant sense. Moreover, no additional expenditure was made in respect of the land given that it was in a "care and maintenance regime" at all material times after the orders were made. Put another way, the expenditure was not related to the implementation of the 2014 consent orders because these costs would have been incurred in any event by MML in maintaining the landfill in compliance with EPL 11395 (see, in this regard the cross-examination of Ryan at T907:33-39, 910:32-911:09 and 915:10-12); 3. fourth, the invoices relied upon by the VT parties to establish detriment did not relate to the land or the implementation of the 2014 consent orders. In addition, the invoices relied upon by the VT parties to establish financial detriment were not authorised (T889:03-896:49); 4. fifth, to the extent that the 2014 consent orders conferred a benefit upon VT, it has failed to take advantage of it during the past six years. Any detriment to it was therefore caused by its own actions in failing to implement the orders; 5. sixth, the 2014 consent orders are now otiose due to the effluxion of time because the EPA changed its guidelines for waste emplacement in 2016 and the works proposed by the 2014 consent orders are inconsistent with the 2016 Landfill Guidelines. There is a need to vary EPL 11395 to bring it into conformity with the 2016 Landfill Guidelines which has not occurred in the intervening period; 6. seventh, the time limits for compliance with certain aspects of the 2014 consent orders (for example, the variation of EPL 11395 to allow the lining of cell W before August 2017) have passed. Thus the 2014 consent orders now lack utility; 7. eighth, proceedings to enforce the 2014 consent orders cannot be commenced due to their inherent uncertainty; 8. ninth, in relation to the claimed financial detriment incurred by MML during the period since the 2014 consent orders were made, external accountants looked after the affairs of the VT companies at all times yet the Court did not hear from them. The failure of the VT parties to present to the Court any witness with direct knowledge of the financial affairs of VT, MML or the VT parties, generally means that the Court should draw an inference that evidence from the internal financial controllers of the VT group of companies and any external accountants would not have assisted the VT parties; 9. tenth, no financial detriment would be suffered by AUG and TPT because the Tartak family were the beneficiaries of the relevant discretionary trusts; 10. eleventh, there was no evidence that financial detriment would be suffered by Skylife; and 11. twelfth, the quantity surveying evidence of either party did not assist the Court having regard to the speculative nature of this evidence which was premised upon unverified assumptions.
The Council also relied upon what it described as the "integrated" nature of the business operations of the VT parties, related VT companies and the Bingo group to submit that neither the financial interests of the Tartak family and the VT parties would suffer any disadvantage if the 2014 consent orders were set aside. Until 2017 when Bingo Industries Ltd floated on the stock exchange, the VT companies operated as part of the Tartak family waste industry business that included the Bingo group of companies. For example, it again emphasised that (see also the evidence above at [280]-[288]): 1. when Tony Tartak purchased the shares in VT through one of his corporate entities for $3,000,000, the Bingo group of companies operated a substantial skip bin business and waste recycling and processing centres in Sydney. Tony Tartak agreed that one of the major costs involved in the carrying out of the Bingo group's businesses was the disposal of non-recoverable waste from the recycling centres but that at the time Bingo did not own any landfill facility (T981:20-22); 2. Sarkis was appointed a director of VT on 18 July 2011. He had previously had overall control of the Bingo recycling centres; 3. Dent assumed control of environmental management for Bingo in 2013 or 2014. It was Dent who signed the letter from VT to the EPA on 21 September 2015 seeking amendments to EPL 11395. She also attended meetings with the EPA on behalf of MML concerning the Dyer Report; 4. Ryan continued to carry out works for the Bingo group after he was appointed as a director of various VT companies. He carried out work for both corporate groups at the same time. He continued to carry out a managerial role for the VT companies after he had resigned as a director of those companies and while he was working fulltime as Bingo's General Manager of Recycling; 5. the finances of the VT companies were controlled by a team who worked out of the Bingo offices at Silverwater and who also dealt with the internal financial affairs of the Bingo group; 6. the payment of MML invoices were authorised by officers of the Bingo group of companies prior to the public float; and 7. Daniel Tartak, a senior executive of Bingo, was involved in VT's business at the MM Landfill (see, for example, the inspection that took place on site on 4 April 2014 between the EPA, Ryan and Danial Tartak).
While no one factor is determinative, on balance I accept the VT parties' submissions as to discretion for the reasons they proffer and the Court ought to decline exercising its discretion to set aside the 2014 consent orders either under statute or at common law. It is not necessary to specifically address each of the discretionary matters raised by the Council, suffice it to say that they have been taken into account by the Court. Having said this, it is necessary to expand upon several of the factors argued above in order to more fully explain the Court's decision on discretion.
First, even if it is accepted that the development the subject of the 2014 consent orders properly construed (that is, ignoring later revisions to the Amended 2013 LEMP and 2013 LMP) travels beyond what is necessary to remedy the breach of the 1998 consent the subject of the 2012 proceedings, it may be inferred that the proposed development the subject of the 2014 consent orders was scrutinised by Court and that the Court was satisfied with its jurisdiction to make the orders. While it is true that the works that the Court ordered were not subject to any mandated public participation processes or other statutory assessment under the EPAA, all parties - including the Council - and also the Court were aware of this at the time the orders were made. If any aspect of the development the subject of those orders was inappropriate, then this was a matter that was either not drawn to the Court's attention, or alternatively, the Court was aware of the matter but made the orders in any event. Both factors militate against the setting aside of the orders.
Second, even if, contrary to the conclusion reached below (at [371]-[379]), the 2014 consent orders operate only in personam, this does not mean that they can be set aside. There was no evidence before the Court that the parties the subject of the orders are no longer in existence or do not intend to carry out the works.
Third, these proceedings are concerned with the validity of the 2014 consent orders and only those orders. If works have been, or are proposed to be, carried out outside the scope of those orders, for example, pursuant to any impermissible revision of the Amended 2013 LEMP and 2013 LMP (see the chronology above at [82]-[109]), then they will not be authorised, and can be injuncted. If the orders have not been complied with, then the Council can seek to enforce them. The Council cannot, on the one hand, resist doing so on the basis that the 2014 consent orders are vague and uncertain, while on the other hand, relying upon the works described therein to contend that they fall outside the scope of the 1998 consent orders and do more than merely remedy the breach of that consent. The Council cannot approbate and reprobate the VT parties' reliance on the 2014 consent orders in the manner that it seeks to do.
Fourth, if the 2014 consent orders are now otiose or their completion frustrated by reason of the passage of the 2016 Landfill Guidelines, or because time for their compliance has passed, there is nothing preventing the parties to the 2014 consent orders from seeking to vary those orders (and similarly EPL 11395) to remedy those deficiencies. In any event, the 2014 consent orders explicitly permit an additional approval to be obtained under order 3(b). The Court, in Class 1, can consequently grant a new development consent which accommodates the 2016 Landfill Guidelines.
Fifth, while it is the VT parties' proceeding that triggered the Council's application to set aside the 2014 consent orders, this does not excuse or explain why the Council waited over four and half years to have them set aside. There was nothing preventing the Council from doing so earlier. Their unexplained delay weighs heavily against an exercise of the Court's discretion in its favour.
In this regard, it should be noted that the Council belatedly applied to introduce evidence of its state of mind in respect of why it did not seek to set aside the 2014 consent orders or to commence its judicial review proceedings earlier, which was refused by the Court (Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Verde Terra Pty Ltd (No 3) [2020] NSWLEC 40). The Council stated by way of explanation that it had "taken a tough decision on the premise that it is better to right a wrong than to perpetuate that" (T1500:28-46). But this is not a reason for the delay and does not assist the Council.
As the VT parties submitted, the only relevant evidence before the Court as to the Council's state of mind in 2014 is that which can be inferred from the joint written submissions and the oral submissions made to the Court at the time. This material reveals that the Council considered that the 2014 consent orders were appropriately remedial of the breach and were within power. All the other parties to the 2012 proceedings, and the Court, were entitled to rely upon those representations.
That the 2014 consent orders were illegal or contrary to the public purpose only came to the Council's attention in 2017 when the EPA raised the issue of whether development consent was required for the variation proposed to EPL 11395, cannot be accepted. If there was no jurisdiction to make the 2014 consent orders in 2014 for the reasons that the Council now contends, this was a matter that, absent fraud, was known to the Council as at that date.
Sixth, in my view, the evidence does not disclose that the VT parties did not seek to implement the 2014 consent orders in any way. On the contrary, it may be inferred by their conduct after the 2014 consent orders were made that the VT parties attempted to comply with the orders, albeit misguidedly and without success.
While it is true that the orders have not in fact been complied with, as the chronology of events after the making of the 2014 consent orders above demonstrates (at [82]-[109] and see also below at [350]), measures have been taken by the VT parties in furtherance of the orders. In any event, merely because the orders have not been acted upon, or even complied with, does not provide a basis for setting them aside. As stated above, there is nothing preventing either party from applying to vary the 2014 consent orders to facilitate compliance. Alternatively, the Council can bring contempt proceedings in respect of their non-compliance (see, for example, Blacktown City Council v Pearce [2013] NSWLEC 175 and Queanbeyan City Council v Sun (No 2) (2013) 195 LGERA 14; [2013] NSWLEC 64, where in both cases the Court, after a deadline for compliance with an injunction had expired, imposed a monthly fine, among other penalties, until the contempt was purged).
Seventh, the evidence also does not establish that the VT parties will not suffer detriment if they are set aside. On the contrary, while the financial arrangements between the VT parties and related corporate entities were at times opaque in the material before the Court, as both Dr Ferrier and Gaudion indicated, the evidence nonetheless disclosed that: 1. Mangrove Properties spent approximately $750,000 in expenses in purchasing the land and MML spent approximately $4,173,637.21 in maintaining the MM Landfill and carrying out preparatory works in anticipation of the 2014 consent orders being implemented. It is not correct to say that these expenses would have been incurred in any event. Tony Tartak's unchallenged evidence was that he would not have permitted Mangrove Properties to purchase the land if the 2014 consent orders had not been made; 2. Ryan's evidence (which I accept) was that if the 2014 consent orders had never been made then the VT parties, including MML, would have been liquidated and the expenses would not have been incurred. Furthermore, no money from third parties would have been loaned to MML for various activities to be carried out on the land in anticipation and in furtherance of the orders (specifically from AUG and TPT); 3. while there is no doubt that many of the expenses relied upon by the VT parties were costs that would have been incurred in any event because they were associated with the ongoing maintenance of the site (including stormwater management, leachate management, dust control, monitoring and the associated equipment required to carry out these activities, for example, a water cart, power generators, an excavator and pumps), it is beyond doubt that other expenses relied upon by the VT parties to demonstrate financial detriment in reliance upon the making of the 2014 consent orders were incurred. These included expenses relating to the hiring and maintenance of a landfill compactor, a second water cart and two new excavators (see the evidence of Ryan: T910:32-911:09). Approximately $330,000 was paid to Eco Line Solutions Pty Ltd for materials and preparatory work to line cell W (T915:45-918:26). By no later than October 2015 MML had incurred approximately $223,000 of materials to line cell W. Those materials remain onsite. They were inspected by the Court during the site visit. Ryan anticipated that the variation of EPL 11395 required by the 2014 consent orders would be imminent (T914:02-05). Equipment was hired from Bingo Equipment Pty Ltd ("Bingo Equipment") for the purpose of carrying out the works required pursuant to the 2014 consent orders (T913:29-31 and 914:02-38); 4. although cross-examination revealed that some of the invoices upon which the VT parties placed reliance did not relate to the implementation of the 2014 consent orders, many of them did, for example: Supplier Total (ex GST) Evidence Bingo Equipment $2,860,000 Hire of equipment required for (1) dual purposes of maintenance and implementation of the 2014 consent orders (T907:06-39, 908:06-23 and 910:18-27) or (2) exclusively for implementation of or in readiness for the 2014 consent orders (T910:29-34 and 913:27-31) Blue Arc Welding $22,023.50 Repairs to a landfill compactor parked in readiness (T911:31-49 and 915:14-32). Consulting Earth Scientists Approximately $295,000 Expenses were incurred by VT to comply with responsibilities under EPL 11395 (T902:20-49) EcoLine Solutions $303,800.25 Materials and preparatory works for lining of cell W (T915:45-916:26 and 918:23-27). Hydraulic Pumps Australia $13,390.00 Fixing of parts or machinery to be used on site for implementation of the 2014 consent orders, albeit some not exclusively (T900:17-22 and 918:35-919:34) McKay & Sons $11,046.06 No challenge to Ryan's evidence that these expenses were for the preparation of the revised stage 1 golf course design after the making of the 2014 consent orders. National Pump & Energy Ltd $295,195.58 No challenge to Ryan's evidence that these expenses were for the hire of stormwater evaporation equipment to assist with stormwater evaporation in cell W to prepare the cell for lining. Park Pty Ltd $142,557.09 No challenge to Ryan's evidence that these expenses were for the purchase of diesel used to fuel generators to provide power to the landfill and for machinery. South West Hydraulic and Pneumatic Services $8,812.82 No challenge to Ryan's evidence that these expenses were for diagnostic testing and repair of excavator hired from Bingo Equipment. Wollongong Recycling & Building Supplies Facility $221,811.91 Hire of additional machinery for increased work in preparation for implementation of the 2014 consent orders, including construction of greens and tees (T923:29-36, 924:22-925:19 and 926:18-927:17) Total $4,173,637.21

[45]

I therefore find that substantial monies were incurred by the VT parties in reliance upon the making and implementation of the 2014 consent orders; and 1. it was suggested to Ryan in cross-examination that some of the invoices relied upon, for example, the invoices to Bingo Equipment, were not properly authorised. This attack cannot be sustained. Ryan was the sole director of VT and MML from 14 March 2014 to 23 October 2017. He was responsible for approving invoices for payment during this period, which he did using various methods that changed over time (T889:03-37). In respect of the Bingo Equipment hire invoices, Mary Tartak stated that she paid those invoices as authorised by her husband, Tony Tartak. It was never put to either Ryan or Tony Tartak that the rates of hire paid for equipment were too low or too high. There is, in my opinion, nothing remarkable about MML being liable to pay Bingo Equipment for the hire of its equipment to be used on the land in furtherance of the 2014 consent orders. It should also be noted that Gaudion stated in cross-examination that he did not know if the hire rates from Bingo Equipment to MML were too high or too low. He agreed that it was logical for MML to be under an obligation to compensate Bingo Equipment for the hire of its equipment. I therefore find that the payment of the invoices was properly authorised.

Eighth, whether at common law under the Court's inherent jurisdiction or pursuant to an exercise of its discretion under r 36.15(1) of the UCPR, the Court may take into account whether third parties will suffer material injury or detriment if the orders are set aside (Yau at [81] and [82] and Permanent Trustee Co (Canberra) Ltd (Executor estate of Andrews) v Stock & Holdings (Canberra) Pty Ltd (1976) ACTR 45 at 50 per Brennan J).
There was, in my opinion, sufficient evidence to demonstrate that setting aside the 2014 consent orders would cause material detriment to AUG (as Trustee for the AUG Investment Trust) and TPT (at Trustee for the TPT Investment Trust). The unchallenged evidence of Tony Tartak was that $6,579,500 was loaned to MML by AUG and TPT. Both Gaudion and Dr Ferrier effectively agreed that $5,079,000 was transferred from AUG and TPT bank accounts to MML between 5 February 2015 and 20 December 2017, and that these amounts were recorded as loans in the financial statements of MML. A further $1,500,000 was transferred by way of loan from Nathan Tartak to MML on 19 July 2016. While the purpose and origin of the latter amount is more contestable, at the very least it may be concluded that $5,079,000 was loaned to MML from AUG and TPT in furtherance of the 2014 consent orders.
Again, it was Tony Tartak's unequivocal evidence that he would not have caused those amounts to be loaned to MML if the 2014 consent orders had not been made and that MML would have been liquidated. This was consistent with Ryan's evidence in respect of both VT and MML. Ryan stated, "the consent orders were the basis on which we could move forward on the site. If we hadn't received the consent orders, there would have been no reason for continuing. I imagine VT companies would have been liquidated and would have closed operations because there was no hope of ever making a landfill on site" (TT959:25-31). The evidence is credible. I therefore cannot accept the submission by the Council that the Tartaks deliberately operated the MM Landfill through the VT companies which had few assets, rather than through the Bingo group.
While there was certainly some overlap in the administration and operation of the VT companies and the Bingo group, the evidence does not disclose that there was integration of the two corporate groups to such an extent that it can be concluded to the requisite degree that the setting aside of the 2014 consent orders would have no detrimental financial impact on the Tartak family interests or the VT companies and related third parties. Whether or not the waste business was "a big business" is beside the point. The fact remains that monies had been spent and lent in furtherance of the making of the 2014 consent orders. These funds will not be recouped if the orders are set aside.
Likewise, whether or not members of the Tartak family will suffer financial hardship by reason of the loans made by AUG and TPT to MML is again irrelevant. The question is whether AUG and TPT would suffer detriment if the 2014 consent orders were set aside. The evidence demonstrates that they will insofar as MML will be liquidated given its parlous financial state (see the evidence of Gaudion in this regard) and the loan will not be repaid.
The same conclusion cannot, however in my view, be reached in respect of the monies lent by Skylife to MML. While the evidence suggests that Skylife was a potentially interested party in the MM Landfill, the reason for the loan is sufficiently equivocal that I do not find that it was sufficiently connected to the 2014 consent orders, and therefore, if those orders are set aside, Skylife will suffer detriment as a consequence.
That witnesses from neither the external (Deloitte Touche Tohmatsu ("Deloitte")) nor the internal (overseen by Sharma) financial controllers of the VT parties or VT companies were called to give evidence on the question of financial detriment (Deloitte declined to do so according to the affidavit evidence of Dixon. To the extent that Dr Ferrier opined orally that this may be because of the reliability of the VT companies' financial records, this was speculative evidence at best) is not, in my view, sufficiently material in circumstances where expert forensic accounting reports were prepared to determine whether monies were lent to various VT companies, including MML, that were expended on activities associated with developing the landfill. Even if, as the Council asserts, an inference should be drawn from the absence of Sharma and others to be called as witnesses on the VT parties' behalf, this evidence would not have assisted the VT parties. It is difficult to see how any such evidence could take the issue much further in light of the expert accounting evidence, notwithstanding the anomalies in the QuickBook records observed by the forensic accountants.
Finally, if the 2014 consent orders are set aside there is no alternative remediation proposed by the Council. In circumstances where, as the Council highlighted, there is the potential for pollution (by way of leachate and gas) to escape from the waste on the land adversely impacting the environment (including various water bodies) and neighbouring properties, this is unsatisfactory.

[47]

Setting Aside the 2013 Heads of Agreement

The Council also submitted that the contract embodied by the 2013 Heads of Agreement was void or voidable on the basis that it was an illegal agreement or an agreement contrary to public policy.
More specifically, the Council argued that the 2013 Heads of Agreement was unenforceable because: 1. first, the agreement purported to authorise development to be carried out in contravention of the EPAA, and therefore, the 2013 Heads of Agreement was prohibited by the EPAA; 2. second, the objects of the EPAA were defeated by the procuring and making of the 2014 consent orders insofar as the works the subject of those orders avoided the public participation process contained in the then Pt 4 of the EPAA; and 3. third, there was no clearly articulated breach of the EPAA which would be remedied by the making of the 2014 consent orders.
By parity of reasoning above in respect of the lawfulness of the 2014 consent orders, I find that that the 2013 Heads of Agreement was not subject to illegality or was contrary to public policy, and therefore, is not void or voidable. However, in the event that this finding is incorrect, I deal with Council's contentions seriatim.
The Council relied upon the decision in A v Hayden (No 2) (1984) 156 CLR 532; [1984] HCA 67 as authority for the proposition that a contract that was contrary to public policy and that impeded the administration of justice was unenforceable. In Hayden (No 2) the question was whether a contractual obligation of confidentiality was enforceable. Commonwealth employees took part in a training exercise arranged by the Australian Secret Intelligent Service in Melbourne. The exercise to free a hostage went wrong and criminal offences were allegedly committed. The Chief Commissioner of Police for Victoria asked the Commonwealth to disclose the identities of the participants so that the potential crimes could be investigated. Their contracts of employment, however, stipulated that the identity of the participants were to be kept confidential. In the course of holding that the confidentially clause was unenforceable, the High Court stated that a court will not lend its aid to the enforcement of a contractual obligation the effect of which would be to obstruct the administration of the criminal law and be contrary to public policy (at 543, 557, 563, 573 and 586).
While Hayden (No 2) stands for the proposition asserted by the Council, the High Court in that case used the language of contracts that have a tendency to pervert, obstruct, adversely affect, or otherwise be incompatible with the administration of justice. I agree with the VT parties that it cannot be said that the 2013 Heads of Agreement in any way perverted, obstructed, or was otherwise incompatible with the administration of justice. At its highest, the Council's case is that the parties to that agreement did not comprehend that the works proposed exceeded those necessary to remedy the breach of the EPAA, and therefore, the parties failed to put this submission to the Court at the time that the 2014 consent orders were entered into. Such alleged failure cannot be said to rise as high as a perversion of the administration of justice. Nor, in my view, does it constitute a sufficient impediment to the administration of justice that would warrant a finding that the 2013 Heads of Agreement is unenforceable on the grounds that it is against public policy. This is because whatever was agreed to by the parties as reflected in that document, the basal material was put before the Court which determined for itself that it had the power to make the orders under s 124 of the EPAA. The decision in Hayden (No 2) does not, therefore, assist the Council.
In my opinion, the Council's contentions must be rejected because: 1. first, the 2013 Heads of Agreement did not authorise any development or works upon the land. It was no more than an agreement by the parties to it to request the Court to exercise its power to make orders resolving the proceedings. As stated above, the Court had to be independently satisfied of certain matters before exercising its power to dispose of the proceedings in the manner contemplated by the draft 2014 consent orders. In circumstances where the Council disavows any suggestion that the Court was misled by the parties, it is difficult to conceive how a request by the parties to the Court to make final orders is against public policy, or moreover, that the procurement of the orders was in any way prohibited by the EPAA; 2. second, s 124 expressly envisages that there will be no public participation in the making of any orders pursuant to it. By reason of the operation of s 76C of the EPAA, Pt 4 was "subject to the other provisions" of the Act, which included s 124. As the VT parties pithily put it in their submissions, "it cannot be against public policy to do that which the statute allows"; and 3. third, as found above, the breach of the EPAA that was said would be remedied by the 2014 consent orders was identified by all of the parties before the Court, including Gosford CC.

[49]

Do the 2014 Consent Orders Operate in Rem or in Personam?

The VT parties relied upon the decision in P E Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437 to argue that the 2014 consent orders created obligations and rights binding upon the first and third respondents to the 2012 proceedings (VT and MML) and as against the world. That is, the orders gave rise to rights in personam, as well as rights operating in rem with declaratory force. Consequently, all issues concerning the breach of the EPAA and any appropriate remedy that arose prior to the making of those orders merged in the 2014 consent orders and, by operation of law, no longer exist.
In response, the Council submitted that the 2014 consent orders do not operate in rem because to do so would be to, in effect, modify the 1998 consent. Rather the orders operate wholly in personam. The orders merely direct the parties to the 2012 proceedings to carry out the works identified in those orders.
In my opinion, the 2014 consent orders operate both ways. There is no reason why an order or set of orders need to be characterised as either wholly in rem or wholly in personam (Pattni v Ali [2007] 2 AC 85; [2006] UKPC 51 at [37]). The extent to which an order operates part in rem and part in personam is a matter of analysis (Pattni at [37]).
In Yehuda the issue was whether a judgment given at first instance resulting in orders in proceedings taken to restrain breaches of conditions of a development consent granted under the EPAA resulted in a judgment in rem in respect of declarations concerning the validity of those conditions. The Court of Appeal held that it did and that it was therefore binding upon everyone (at 445-446).
In that case the council had brought earlier proceedings before Perrignon J for breach of a development consent. At issue was the validity of four conditions. The Court made declarations concerning the invalidity of two of the four conditions and injunctions compelling compliance with the remaining conditions. Subsequently, further proceedings were brought by Yehuda, who was not a party to the earlier proceedings, alleging breach of the conditions the subject of the injunctive relief as well as non-compliance with the injunctions. Hope JA (with whom Samuels and McHugh JJA agreed) held that the injunctions granted by Perrignon J operated as a judgment in rem and gave rise to a res judicata precluding any person from denying that the acts described in the court orders constituted, relevantly, a breach of the consent (at 445-446).
In the present case, the 2012 proceedings concerned alleged breaches of the 1998 consent. The resolution of that dispute by the making of the 2014 consent orders pursuant to the power conferred upon the Court by s 124 of the EPAA turned upon a determination of, first, whether there was a breach of the Act, and second, whether the proposed 2014 consent orders were appropriate to remedy that breach. The 2014 consent orders specified how the development approved by the consent was to be carried out in light of its breach. In making the orders the Court therefore had to turn its mind to whether the works the subject of the 2014 consent orders were within the scope of the 1998 consent. If they were not, the Court would have had no power to make them.
The 2014 consent orders therefore act as a judgment that is both enforceable as against the parties to the orders insofar as, the Council submits, the orders direct the parties to the 2012 proceedings to carry out the works specified (creating rights in personam). The orders are also enforceable as against the world because no other activity than that specified in the 1998 consent and the 2014 consent orders can be carried out on the land (creating rights in rem). This is because, adopting the analysis in Yehuda, the 2014 consent orders operate as a judgment in rem in relation to the development that may now be carried out on the land pursuant to the 1998 consent; they define the activity permitted to be carried out under the 1998 consent.
That no further development consent is required to carry out the works the subject of the 2014 consent orders fortifies this conclusion. While the 2014 consent orders do not (and cannot under the EPAA) formally modify the 1998 consent, they nevertheless alter how that consent operates. The orders therefore have the effect of determining the status of the activity that can be undertaken on the land.
The fact that the orders in Yehuda were made after a contested hearing and were not the product of agreement by the parties does not preclude them from operating in rem. Although in the authoritative work by K R Handley, Spencer Bower and Handley Res Judicata (5th ed) (LexisNexis, 2019), the learned author opines that a judgment in rem cannot be obtained by consent (at [10.03]), in Yehuda Hope JA did not foreclose this possibility (at 446F-G).
Similarly, the fact that the Court, in making the 2014 consent orders, did not grant declaratory relief is not determinative. The handwritten addition to the recital to the 2013 Heads of Agreement stating "BUT DOES NOT INCLUDE DECLARATIONS" is reflective of nothing more than the intention of the parties to the 2012 proceedings not to seek this form of relief. The 2014 consent orders defined and determined for both the parties and the world in general (Yehuda at 442B-C) that the EPAA had been breached and that in order to remedy the breach that the development authorised by 1998 consent was to be carried out in the manner prescribed therein.
Accordingly, the 2014 consent orders operate both in personam and in rem.

[50]

Are Estoppel and Related Doctrines Applicable to the 2014 Consent Orders?

The VT parties submitted that the doctrines of res judicata and issue estoppel apply because whether the 2014 consent orders were made within power was an ultimate issue which was necessarily resolved as a step in reaching the determination by the Court to make the orders. Anshun estoppel is applicable because during the making of the 2014 consent orders, at no point did the Council raise any issue concerning whether the orders or the 2013 Heads of Agreement were irregular, illegal or against public policy. Likewise, no complaint was made by the Council about the need to further articulate or clarify the scope and content of the breach of the EPAA giving rise to the orders or whether the works that were contemplated by the 2014 consent orders were materially different to that permitted by the 1998 consent.
Furthermore, the Council's conduct in these proceedings amounted to an abuse of process, which, sanctioned by the Court, would give rise to unjustifiable oppression to the VT parties and to third parties acting in reliance upon the 2014 consent orders.
In response, as stated above, the Council submitted that the doctrine of estoppel was not available against the operation of a statute, in respect of rights and duties which arise under statute, applications for judicial review, or against judgments obtained by consent.
In addition, in respect of Anshun estoppel, the Council could not be estopped from seeking to set aside of the 2014 consent orders because those orders did not determine the question of what constitutes the development for which consent was granted, and therefore, there was no risk of inconsistent judgments.
Lastly, the doctrine of res judicata only applies to orders made within power and because the 2014 orders were made beyond the Court's jurisdiction, the doctrine had no application.
According to the VT parties, the Council's arguments ought not be accepted because: 1. judgments and orders made by consent can give rise to a plea of res judicata and issue estoppel (citing Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; [1988] HCA 21). In addition, the doctrines of res judicata and issue estoppel can apply in the context of rights arising under statute, including rights and obligations arising under a development consent (citing Chamberlain); 2. the doctrine of Anshun estoppel can apply to proceedings in the nature of judicial review (citing Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10; [2004] FCAFC 242); and 3. to the extent that the Council placed reliance on Kurtovic this was misconceived because the kinds of estoppel referred to in Kurtovic were distinguishable from the estoppels by judgment relied on by the VT parties in these proceedings, namely, res judicata, issue estoppel and Anshun estoppel. Put another way, the reasoning in Kurtovic had no application to estoppels arising by judgment.
A description of the types of estoppel relied upon by the VT parties was usefully provided by the High Court in Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 (at [22], footnotes omitted): 22 Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as "cause of action estoppel". Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as "issue estoppel". Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a "judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies". The third form of estoppel is now most often referred to as "Anshun estoppel", although it is still sometimes referred to as the "extended principle" in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a "true estoppel" and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.

[51]

Can Estoppel Apply to Exercises of Statutory Power?

As the various species of estoppel are creatures of equity or the common law, or both, they must conform with any statute that impacts upon the resolution of the controversy upon which they are claimed to operate.
The Council relied upon Chamberlain to argue that issue estoppel and Anshun estoppel cannot operate to oust the operation of, and the statutory requirements imposed by, the EPAA. It quoted the following passage (at 510, footnotes omitted): …It may well be true that, as the respondent submitted, estoppel by representation affords no answer to a claim in exercise of a statutory power or duty or a right conferred in the public interest: see Maritime Electric Co. v. General Dairies Ltd. And it may well be that no conduct on the part of the Commissioner can operate as an estoppel against the operation of the Act: Federal Commissioner of Taxation v. Wade. It is equally true that the Commissioner is not bound by a determination made in respect of an assessment for one year, so far as other years are concerned: Caffoor v. Income Tax Commissioner. Likewise there can be no issue estoppel against the operation of a statute which creates public rights and duties or which enacts imperative provisions: Bradshaw v. M'Mullan; Griffiths v. Davies; Kok Hoong v. Leong Cheong Kweng Mines Ltd.
While the Council accepted that merely because one party is a public body does not, in and of itself, exclude the operation of the doctrine, it submitted that where a statute provides mandatory conditions, processes, and matters to be considered before a power may be exercised under it, the public body vested with that power lacks the ability to bind itself to any exercise of power without compliance with all legislative requirements (citing Kurtovic at 215).
Relevantly for present purposes, at issue in Kurtovic was whether the Minister for Immigration and Ethnic Affairs was estopped from later deporting the respondent as a result of material supplied to him from the Parole Board (NSW) (the respondent had been sentenced to 10 years in jail for two counts of manslaughter) in circumstances where there had been an earlier revocation of a deportation order following a decision of the Administrative Appeals Tribunal ("AAT"). The Full Court of the Federal Court of Australia (Neave, Ryan and Gummow JJ) dismissed the appeal on the basis that there had been a denial of natural justice by reason of the failure to afford the respondent an opportunity to consider and answer potentially prejudicial matters from the Parole Board taken into account by the Minister. However, no estoppel arose because there was no representation of fact or promise by the Minister in the original revocation of the deportation order and the respondent did not alter his position to his detriment. Further, the doctrine of issue estoppel did not apply in respect of the earlier AAT decision because no dispute arose as to that decision (at 219 per Gummow J, as he then was).
During the course of providing reasons, Gummow J opined in detail on the intersection between equitable estoppel and administrative law (at 207 to 219). It is not necessary to descend into his Honour's comprehensive and erudite analysis, suffice it to observe that it stands as authority against the availability of, at the very least, estoppel by representation (particularly as to future conduct). His Honour stated (at 207-208): Even if the statement in question did bear the implication contended for, there are considerable difficulties in the way of propounding an estoppel against the exercise of an administrative discretion. Rather, in the present case, the respondent seeks to prevent the appellant from making a decision within the latter's power which would have the effect of altering a previous intra vires decision. The respondent is then met with the objection that to allow an estoppel in this context would hinder or prevent further exercise of the statutory discretion. The principles governing the application of estoppel by representation, or promissory estoppel, and related doctrines, have evolved largely in the context of private law. Difficult issues arise as to the extent to which those principles are to be applied in administrative law. The generally accepted proposition is that: Estoppel cannot operate to prevent or hinder the performance of a positive statutory duty, or the exercise of a statutory discretion which is intended to be performed or exercised for the benefit of the public or a section of the public.
Notwithstanding these remarks, Gummow J acknowledged that estoppel "may conceivably have a role in administrative law" (at 207). In particular, his Honour observed that "the planning or policy level of decision making wherein statutory discretions are exercised has, in my view a different character or quality to what one might call the operation decisions which implement decisions made in exercise of that that policy" (at 215). Thus "where the public authority makes representations in the course of implementing a decision arrived at by the exercise of its discretion, then usually there will not be an objection to the application of the private law doctrine of promissory estoppel" (at 215).
Kurtovic has been often cited for the somewhat bald proposition that there is no public law estoppel in Australia (the other being the seminal case of Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; [1990] HCA 21 at 35-36 per Brennan J, as he then was). However, in Quin Mason CJ made the following observation (at 17-18): The Executive cannot by representation or promise disable itself from, or hinder itself in, performing a statutory duty or exercising a statutory duty or exercising a statutory discretion to be preformed or exercised in the public interest, by binding itself not to perform the duty or exercise the discretion in a particular way in advance of the actual performance of the duty or exercise of the power…What I have just said does not deny the availability of estoppel against the Executive, arising from conduct amounting to a representation, when holding the Executive to its representation does not significantly hinder the exercise of the relevant discretion in the public interest. And, as the public interest necessarily comprehends an element of justice to the individual, one cannot exclude the possibility that the courts might in some situations grant relief on the basis that a refusal to hold the Executive to a representation by means of estoppel will occasion greater harm to the public interest by causing grave injustice to the individual who acted on the representation than any detriment to that interest that will arise from holding the Executive to its representation and thus narrowing the exercise of the discretion...
Although neither case was this emphatic, one leading textbook has described the availability of estoppel and related doctrines to fetter the exercise of an governmental statutory discretion as a "dead letter in Australia since at least 1990" (M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed) (Thomson Reuters, 2019) [19.800] fn 605). It is perhaps because of the juridical emphasis on jurisdictional error in the context of procedural fairness in administrative law that relatively few cases since Kurtovic have revisited the question of the availability of estoppel in administrative law (in the planning context, see the discussion in Ku-ring-gai Council v Minister for Planning [2008] NSWLEC 174 at [93], City of Sydney Council v Waldorf Apartments Hotel Sydney Pty Ltd (2008) 158 LGERA 67; [2008] NSWLEC 97 at [64]-[68] and [70]-[72], Casa v Ryde City Council (2009) 172 LGERA 348; [2009] NSWLEC 212 at [109]-[114] and Page v Manningham City Council (2010) 27 VR 642; [2010] VSC 267 at [61]-[66]).
In Chamberlain, which was decided before Kutovic, it was remarked that "there can be no issue estoppel against the operation of a statute which creates public rights and duties or which enacts imperative provisions" (at 510). Such a pronouncement is, with great respect, unremarkable. A statement by a council officer that development consent will be granted cannot therefore be used to estop the exercise of statutory power by a council under the EPAA to later refuse to approve a development application. Similarly, a council cannot enter into a lease or contractual licence by their conduct absent an exercise of legislative power permitting it to do so where such an exercise is mandated by a statute concerning the use of public land. No estoppel arises in such circumstances (St Alder v Waverley Local Council (2010) 172 LGERA 147; [2010] NSWCA 22 at [42]). Nor will a council be estopped from denying the correctness of representations in a letter that development consent was operative from a certain date. This is because in resolving when, if at all, a consent has lapsed, it is the completion of a condition of consent to the satisfaction of the council that enlivens the council's statutory power to determine if the consent is operative (see Casa v Ryde).
As the weight of authorities surveyed by Pain J in Waldorf indicates, councils will not readily be estopped from later denying the validity of development consents granted by them (at [64]-[67] and [70]-[72]). This is because there is a public interest in the carrying out of statutory duties that require a council from asserting that an unlawful use to which it had previously granted consent is invalid (Hawkesbury City Council v Sammut (2002) 119 LGERA 171; [2002] NSWCA 18 at [57]). Again, this conclusion is uncontentious having regard to orthodox principles of administrative law. It may be argued that the public interest in the Council seeking to undo what it has done in 2014 is equally as important and that therefore no estoppel attaches.
However, while it may be accepted that an estoppel cannot interfere with a statutory duty or discretion so as to prevent a person or body from fulfilling that duty according to law, that is not what the VT parties are seeking to presently estop.
The Council could not identify in these proceedings what statutory power it was exercising when it entered into the 2014 consent orders. This is because what is sought to be estopped by the VT parties is not an earlier or later exercise of a statutory duty or power by the Council. Rather it is the decision by the Council to enter in the 2013 Heads of Agreement and to procure the making of the 2014 consent orders. The exercise power at the heart of these proceedings was that carried out by the Court pursuant to s 124 of the EPAA to make the 2014 consent orders, not an exercise of statutory power by the Council. The acts of the Council are more analogous to parties to a dispute governed by private law. On one view, there is little difference between the conduct of the Council and that of a private individual or corporation and consequently no bar exists to the operation of estoppel.
In addition, the representations (albeit implicit) made by the Council to the Court during the 2014 consent orders hearing were ones of mixed fact and law not necessarily repelling the doctrine of estoppel. The representations as to law included that there was a breach of the Act, that the works proposed by the orders would remedy the breach, and that the Court had the jurisdiction to make the orders that were sought. It is not obvious why these representations ought to be estopped having regard to the reasoning contained in the case law above. Underlying the submissions to the Court during the 2014 consent hearing were also representations as to fact concerning, for example, the acts giving rise to the asserted breach, the nature, scope and purpose of the works proposed and the extent to which these works would remedy the breach. Even if the Council cannot be estopped against resiling from the representations as to the law, it can be estopped from denying the existence of facts it put to the Court (Hornsby Shire Council v Vitone Devleopments Pty Ltd (2003) 132 LGERA 122; [2003] NSWLEC 272 at [46]). That is, estoppel ought to be available to hold the Council to the representations that it made to, among others, VT and MML and to the Court given that to do so would not, in my opinion, hinder any exercise of the Council's statutory discretion in the public interest. On the contrary, to deny the existence of the representations would cause greater harm to the public interest by denying justice to the VT parties and by seriously eroding the finality of litigation. This is not a case of the Council, by representation, fettering its performance of a statutory duty or binding the performance of that duty or exercise of power in a particular way (Quin at 18).
Finally, it is observed that few of the authorities relied upon by the Council denied the availability of issue estoppel or res judicata against a public authority in the exercise of their statutory power (cf Chamberlain and Yehuda). Rather, those cases concerned more general estoppels by representation, which are of no relevance to the estoppels by judgment arising by operation of law in the present proceedings.
In my opinion, therefore, the VT parties can avail themselves of the estoppels pleaded.

[52]

Res Judicata

According to Spencer Bower and Handley Res Judicata, a res judicata, which is a form of estoppel by judgment, "is a decision pronounced by a court or tribunal with jurisdiction over the cause of action and the parties, which disposes once and for all the fundamental matters decided so that, except on appeal, they cannot be re-litigated between the persons bound by the judgment" (at [1.01]. See also Discount and Finance Ltd v Gehrig's NSW Wines Ltd (1940) 40 SR (NSW) 589 at 602-603 and Ex parte Amalgamated Engineering Union (Australian Section); Re Jackson (1937) 38 SR (NSW) 13 at 17-20).
The distinction between res judicata and issue estoppel was explained in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45 (at 597). In the former, the right or cause of action claimed has passed into judgment so that it is merged and no longer has an independent existence, whereas in the latter, for the purpose of a subsequent proceeding, "a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or law" (at 597 citing Blair v Curran (1939) 62 CLR 464; [1939] HCA 23 at 532).
If res judicata applies, there is no discretion in the Court as to the outcome of the proceedings, by operation of law the cause of action ceases to exist (Chamberlain at 511).
The learned author of Spencer Bower and Handley Res Judicata identified the elements that a party relying on a res judicata must establish, namely, that (at [1.02]): 1. the decision was judicial in the relevant sense; 2. the decision was in fact pronounced; 3. the court or tribunal had jurisdiction over the parties and the subject matter; 4. the decision was final and on the merits; 5. the decision determined a question raised in the later litigation; and 6. the parties are the same or their privies, or the earlier decision was in rem.
There is nothing inherent in a consent order that precludes it from amounting to res judicata (Chamberlain at 508, Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677; [2000] FCA 1192 at [35]-[36] and Beck v Weinstock (2012) 8 BFRA 279; [2012] NSWCA 289 at [62]-[66]). Judgments and orders by consent can create estoppels and merge the causes of action sued upon just as readily as those pronounced after a contest. A judicial decision must, however, have been made. That is, res judicata will not result where a mere agreement is noted by a court and does not result in a court order which has coercive authority giving effect to that agreement (Beck at [62]-[66]).
A court must examine the evidence to ascertain the issues in dispute in the first set of proceedings. If the consent order is ambiguous the court can, as authorities cited earlier in this judgment hold, consider the context surrounding the making of the order.
The Council contended that there was no res in the 2014 consent orders that would ground any res judicata in these proceedings because, in addition to the fact that the orders were not orders in rem, in making the orders the Court neither determined or declared the totality or the purpose of the development permitted under the 1998 consent, nor did it determine or declare that the remedial works required by the 2014 consent orders fell within the 1998 consent, and therefore, were within power.
I do not agree. In my view, res judicata arises in the circumstances of this case. This is so notwithstanding that no formal declaration or express determination was made by the Court as to the matters identified above in the 2014 consent orders or that the 2013 Heads of Agreement expressly eschewed the granting of declaratory relief.
First, as held above, the obligations and rights created by the 2014 orders were both in personam and in rem. But even if this conclusion is not correct, there is nothing per se preventing a decision in personam from operating as a res judicata estoppel in favour of and as against the parties and their privies to it, rather than as against the world. Provided that there is mutuality of the parties and their privies, which is presently the case with respect to the VT parties and the Council in the VT proceedings in respect of the claims that the Council seeks to rely upon, no impediment necessarily arises.
Second, the 2014 consent orders amount to a court order which has coercive authority concerning the subject-matter of the 2012 proceedings. A failure to comply with the 2014 court orders can constitute contempt. The making of the orders amounted to more than the Court merely recording or noting the agreement embodied in the 2013 Heads of Agreement (Beck at [62]-[74]).
Third, as explained above, the Council's case is premised upon the argument that the 2014 consent orders were not made within jurisdiction because they comprise works that went beyond the remediation of the breach of the EPAA. As explained earlier in this judgment, this premise is flawed.
Turning to the res of the 2014 consent orders, it is reasonable to infer from the surrounding circumstances (for example, the written and oral submissions, the 2014 consent orders hearing and the 2012 proceedings pleadings), that the Court found that there was a breach of the EPAA insofar as there had been development contrary to the 1998 consent and that the works proposed by the 2014 consent orders were, in the opinion of the Court, necessary to remedy that breach. The Court must have specifically turned its mind to the power to make the orders prior to doing so (there is no suggestion from the Council that the Court did not do so). Breach aside, the central question before the Court in 2014 was whether the works proposed by the 2014 consent orders were remedial of the breach of the 1998 consent.p This is all that the Court was required to be satisfied of for the purpose of exercising the power contained in s 124 of the EPAA. In the absence of any evidence to the contrary, it may be inferred that the Court attained this state of mind.
Notwithstanding that this Court has found, after a lengthy hearing involving voluminous evidence, including expert evidence, and detailed submissions, that the works proposed in the 2014 consent orders exceed what is necessary to remediate the breach for the purposes of s 124 of the EPAA, this is beside the point. In circumstances where the nature and purpose of the development approved by the 1998 consent was expressly referred to by the parties in their submissions to the Court on 29 August 2014 and also in the pleadings to the 2012 proceedings, the question of whether the works required under the remedial orders were within the 1998 consent was - rightly or wrongly - determined by the Court. This is apparent from the text of the 2014 consent orders which states that "Development Consent DA23042/1998 for the landfill and proposed remodelling of the Mangrove Mountain Golf Course…shall be carried out in accordance with the following". Again, the broad power contained in s 124 of the EPAA is to make "such orders as it thinks fit to remedy…the breach". Accordingly, it may be inferred that the activity proposed to be carried out on the land pursuant to the 2014 consent orders constituted development that, at the relevant time, the Court was satisfied was fit to remedy the breach of the Act.
To the extent that the Council contended that even if the 2014 consent orders gave rise to a res judicata, the res does not extend to either the totality or purpose of the development permitted by the 1998 consent, or the question of whether the works required under the remedial orders were within the scope of the 1998 consent, again, this contention must be rejected. As stated above, questions as to the purpose of the development or use of the land permitted by the 1998 consent were raised in the 2012 proceedings, that is, that consent was granted for the purpose of the use of the land as an extractive industry, as a landfill, and to remodel the golf course. This ultimately found expression in the chapeau to the 2014 consent orders.
Accordingly, having regard to the elements of the doctrine described above, in my opinion, the 2014 consent orders operate as a res judicata with respect to the issues raised by the Council against the VT parties in the VT proceedings. These issues have merged in the making of the 2014 consent orders by the Court and cannot now be agitated by the Council.

[53]

Issue Estoppel

Whereas res judicata is concerned with the merger of causes of action into judgments, issue estoppel (included within the broader category of estoppel by judgment) deals with matters of fact or law necessarily decided by an earlier judgment, decree, or in this instance, order (Blair v Curran at 532, Maurice Blackburn Cashman v Brown (2011) 242 CLR 647; [2011] HCA 22 at [39]-[40], Tomlinson at [22] and Timbercorp Finance Limited Pty Ltd (in liquidation) v Collins (2016) 259 CLR 212; [2016] HCA 44 at [27]).
Although it is sometimes considered that issue estoppel is not a true estoppel but is born out of the same considerations that give rise to a res judicata or cause of action estoppel (see J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane's Equity Doctrines and Remedies (5th ed) (LexisNexis, 2015) (p 514), it is nevertheless convenient to deal with the doctrine separately for the purposes of this judgment.
In Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34 the High Court quoted approvingly the description given to issue estoppel by Barwick CJ in Ramsay v Pigram (1968) 118 CLR 271; [1968] HCA 34 at 276 (at [40], footnotes omitted): 40 In Ramsay v Pigram, Barwick CJ encapsulated what was involved in answering that question by saying: ''Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case.''
There is no impediment to issue estoppel applying to consent judgments and orders (Somanader at [35], Makhoul v Barnes (1995) 60 FCR 572 at 582E-F and Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342; [1987] FCA 127 at 355).
The test to be applied was articulated by Dixon J in Blair v Curran at follows (at 531-533): A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order. Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter (1), the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous. In the phraseology of Lord Shaw, "a fact fundamental to the decision arrived at" in the former proceedings and "the legal quality of the fact" must be taken as finally and conclusively established (Hoystead v. Commissioner of Taxation (2)). But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation.
The principles of issue estoppel are not confined to the final conclusion reached in a cause of action pleaded (Blair v Curran at 532). That is, the doctrine can apply to issues that give rise to an issue estoppel divorced from the cause of action that they are directed to (Kuligowski at [40]). That is, an issue that is resolved "as a step in reaching the determination" (Tomlinson at [22]), and not merely the final legal conclusion. That said, the step cannot be subsidiary or collateral to the decision. If it is, no estoppel arises. Moreover, "decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation" (Blair v Curran at 532-533).
The VT parties contended that an issue estoppel arises with respect to the claims that the Council now seeks to pursue in the VT proceedings insofar as they concern issues of fact and law which were necessarily involved as a step in reaching the determination of the 2012 proceedings.
In my opinion, this contention is correct. Whether the 2014 consent orders were made within power was an ultimate issue which was required to be resolved by the Court as a necessary step in determining to make those orders. That is, whether the Court had the jurisdiction to make the 2014 consent orders and whether those orders were necessary to remedy the breach of the 1998 consent implicitly involved questions of fact and law concerning the scope of the 1998 consent and the 2014 consent orders that the Court was required to turn its mind to in exercising the power to make the orders in 2014. The Court had the benefit of joint written and oral submissions from the parties which expressly adverted to the Court's power to make the orders requested. Absent appeal, the making of the 2014 consent orders resolved the issue of whether or not the orders were within power.
I therefore find that the Council is estopped from contending the contrary of that which was put in issue and finally determined by the 2014 consent orders.

[54]

Anshun Estoppel

Anshun estoppel acts to prevent a party in later litigation from raising an issue which was not litigated in the earlier proceedings but which could and should have been raised in those proceedings. Anshun estoppel has been applied to proceedings in the nature of judicial review insofar as it is aimed at avoiding abuse of process (Wong at [39]).
In Timbercorp the High Court described the difference between issue estoppel and Anshun estoppel the following way (at [27], footnotes omitted): 27 It was mentioned at the outset of these reasons that the appellant does not contend that an issue estoppel arises with respect to the claims that the respondents now seek to pursue. That is to say, it is not argued that they involve an issue of fact or law which was necessarily involved as a step in reaching the determination of the group proceeding. Rather, it is contended that these claims ought to have been raised and determined in that proceeding. An estoppel of this kind, an "Anshun estoppel", will preclude the assertion of a claim or of an issue of law or fact if the claim or issue was so connected to the subject matter of the first proceeding as to make it unreasonable, in the context of the first proceeding, for the claim or issue not to have been made or raised in it.
In Timbercorp, Anshun estoppel was summarised by Gordon J as (at [97], footnotes omitted): 97 Anshun estoppel is an extended form of "cause of action estoppel" and "issue estoppel" that "operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding".
Again, the very issues that the Council now seeks to agitate could and should have been raised by it in the 2012 proceedings (to the extent that it is argued that they were not). Contrary to the submission of the Council, I am of the view that it was unreasonable for it not to have done so. Almost all of the material relied upon by the Council in these proceedings was, or could (and should) have been, available to it in the 2012 proceedings, including when it agreed to procure the orders that it ultimately procured by consent from the Court in 2014.
As the VT parties submitted, nowhere in the joint submissions before the Court in 2014 did the Council raise, prior to their making, a question as to whether the 2014 consent orders could be void for illegality, irregularity or against public policy because the orders were beyond power. If the Court did not specifically turn its mind to the question of whether the works the subject of the 2014 consent orders permitted the carrying out of development beyond that authorised by the 1998 consent, and therefore, beyond the jurisdiction of the Court to make, this was because the issue was not raised before it.
Likewise, there was no suggestion made by the Council that the particular breach of the EPAA relied upon by it that was the subject of the 2014 consent orders needed to be clarified or that the works contemplated by the 2014 consent orders was different in nature, scope or purpose to the development approved by the 1998 consent.
These issues were so relevant to the subject matter of the 2012 proceedings it was unreasonable for the Council not to raise them in those proceedings and, as established above, the VT parties relied to their detriment upon the orders.

[55]

Abuse of Process

Further and in the alternative, the VT parties submitted that the Council's conduct in making allegations of illegality, irregularity or impropriety approximately five years after the making of the 2014 consent orders, allegations which could and should have been raised at the time and in circumstances when the VT parties and third parties had incurred substantial financial expenses and liabilities as a consequence of the making of those orders, amounted to unjustifiable oppression, and therefore, an abuse of process.
The doctrine of abuse of process is of broader application than issue estoppel (Tomlinson at [26] and UBS AG v Tyne as Trustee of the Argot Trust (2018) 265 CLR 77; [2018] HCA 45 at [62]-[63]). The relationship between the two doctrines was explained in Tomlinson (at [24]-[26], footnotes omitted): 24 To explain contemporary adherence to the comparatively narrow principle in Ramsay v Pigram, it is appropriate also to explain the relationship between the doctrine of estoppel and the doctrine of abuse of process as it has since come to be recognised and applied in Australia. The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding. 25 Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel. 26 Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.
This sentiment was reiterated subsequently in UBS (at [1] and [45] per Kiefel CJ, Bell and Keane JJ): 1 This appeal is concerned with the power to permanently stay proceedings as an abuse of the process of the court. The varied circumstances in which the use of the court's processes will amount to an abuse, notwithstanding that the use is consistent with the literal application of its rules, do not lend themselves to exhaustive statement. Either of two conditions enlivens the power: where the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute. The issue in this appeal is whether one or both of those conditions is met in circumstances in which the factual merits of the underlying claim have not been determined and any delay in prosecuting the claim has not made its fair trial impossible. … 45 The courts must be astute to protect litigants and the system of justice itself against abuse of process. It is to hark back to a time before this Court's decisions in Aon and Tomlinson and the enactment of s 37M of the FCA to expect that the courts will indulge parties who engage in tactical manoeuvring that impedes the "just, quick and efficient" resolution of litigation. To insist, for example, on "inexcusable delay" as a precondition of the exercise of the power to stay proceedings as an abuse of process is to fail to appreciate that any substantial delay is apt to occasion an increase in the cost of justice and a decrease in the quality of justice. And other litigants are left in the queue awaiting justice. Further, there is no reason why the courts should tolerate attempts to manipulate other parties and the courts themselves by the deployment, by a single directing mind and will, of different legal entities under common control for such a purpose. The concern is as to whether the processes of the court are being abused. Given that this is the central concern, the circumstance that the abuse is effected by the use of multiple entities orchestrated by a single mind and will is no reason to tolerate it.
The doctrine of abuse of process is inextricably linked to the overriding purpose of the Court (s 56 of the CPA). It is intended to prevent attempts by a party to avoid this purpose, which is not just a matter of central importance to the parties or to the Court, but it is a matter of public interest (UBS at [38]).
In Walton v ACN 004 410 833 Ltd (formerly Arrium Limited) (in liquidation) [2022] HCA 3 the categories of abuse of process were described by Gageler J as (at [93], footnotes omitted): 93 "The possible varieties of abuse of process are only limited by human ingenuity and the categories are not closed." That said, abuses of process "usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute". Those categories can overlap in practice. A pertinent example is where one party invokes a procedure of the court for a purpose unjustifiably oppressive to another. The illegitimacy of the purpose then lies in the unjustifiable oppression. But an invocation of a procedure can be unjustifiably oppressive even if invoked for a legitimate purpose.
The abuse about which the VT parties complain concerns the second category. In other words, permitting the Council's claims to proceed in its defence to the VT proceedings and in its cross-summons would subject the VT parties to unjustifiable oppression. The oppression is founded largely on the effluxion of time, the unexplained delay in bringing the cross-claim, and the inevitable loss of expenditure to the VT parties if the 2014 consent orders are set aside.
Consistent with the reasoning in UBS, the vice and vexation in seeking to set aside the 2014 consent orders is in the VT parties having to again deal with claims that should have been resolved, to the extent that they were not, in the 2012 proceedings. For this Court to lend its process to the continued prosecution by the Council of matters that have been, or ought to have been, disposed of during the 2012 proceedings by the making of the 2014 consent orders, with all of the attendant delay, expense, and expenditure of additional curial resources, is both unjustifiably oppressive to the VT parties and gives rise to the perception that the administration of justice is inefficient. For these reasons, the Council's claims amount to an abuse of process.

[57]

Was the Development Existing or Approved Development? (Issues 8 to 12)

If the 2014 consent orders are not set aside, and given the concession by the Council that no further development consent is required to carry out the works directed therein, is there "existing or approved" development within the meaning of cl 35 of Sch 3 of the EPA Regulations? The VT parties submitted that there was.
The Council submitted that it would be perverse if the VT parties were permitted to rely upon the works the subject of the 2014 consent orders for the purpose of taking the benefit of cl 35 of Sch 3 of the EPA Regulations to establish that there was no increase in the environmental impacts of the total development under the 2018 DA given that the only reason why those works were ordered was because of the breach of the EPAA by them. In other words, because the making of the 2014 consent orders was occasioned by a breach of the EPAA, the works sanctioned by those orders amounted to unlawful development that could not constitute "existing or approved" development within the meaning of cl 35 of Sch 3 of the EPA Regulations. Accordingly, the VT parties could not rely upon the works the subject of the 2014 consent orders as the reference for any assessment of environmental impacts of the proposed development the subject of the 2018 DA.
Furthermore, to the extent that cl 35 of Sch 3 of the EPA Regulations involves a comparison of what is proposed in the 2018 DA with the "existing or approved" development on the land, this is a matter for the consent authority alone to determine in Class 1 of the Court's jurisdiction, and not for the Court in the Class 4 VT proceedings to decide.
In response, the VT parties submitted that whether the development contemplated by the 2014 consent orders was "existing or approved" development was a jurisdictional fact, the determination of which was a matter exclusively for the Court in these proceedings. Declaratory relief could therefore be granted by the Court consequent upon this fact finding process.
They also submitted that the changes to the development the subject of 2018 DA assumed and depend upon the works the subject of the 2014 consent orders. Those works were ordered by the Court and were therefore lawful. Because the activity the subject of the 2018 DA is not proposed to be carried out independently of the development in the 2014 consent orders, but are ancillary and subservient to that development, the development contemplated by the 2018 DA are not in breach of the EPAA.

[58]

The Meaning of "Existing or Approved" Development Under Cl 35 of Sch 3 of the EPA Regulations

The issues raised above directs attention to the meaning of "existing or approved" development in cl 35 of Sch 3 of the EPA Regulations.
The works the subject of the 2014 consent orders are not, in my opinion, "approved" development because in making those orders pursuant to s 124 of the EPAA the Court did not 'approve' the works. To find otherwise would render otiose s 124(3) of that Act, which permits the Court to adjourn proceedings while approval is obtained by a party in breach.
Only the consent authority had the power to 'approve' development. The Court merely determined that the works the subject of the 2014 consent orders remedied an existing breach of the EPAA. The making of the 2014 consent orders in no way modified the 1998 consent. The "approved" development for the purpose of cl 35 is that authorised by the 1998 consent.
Clause 35 is directed to both "existing" development and "approved" development as is evident by the use of the conjunction "or". If the development the subject of the 2014 consent orders is not "approved" development for the purpose of cl 35, does the development constitute "existing" development?
The VT parties submitted that having regard to the text, context and purpose of the regulation, the "existing" development means the current development on the land, including the past unlawful use of the land (that is, the works in breach of the approved development, viz, the 1998 consent) and the works ordered by the Court in 2014 to remedy that breach. In other words, the MMLGC that was the subject of the 2014 consent orders was "existing" development for the purpose of cl 35 of Sch 3 of the EPA Regulations.
By contrast, the Council argued that such a construction would permit the VT parties to gain an advantage as a result of their prior unlawful use of the land because it would obviate the need to prepare a further EIS (Ralph Lauren Pty Ltd v New South Wales Transitional Coastal Panel (2018) 235 LGERA 345; [2018] NSWLEC 207 at [128]).
The unlawfulness of the past use of the land by the VT parties does not preclude them from applying for development consent under the 2018 DA. That is, "mere unlawfulness of past use is not a relevant factor" in determining the outcome of the 2018 DA (Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 at [34]-[38]). This is because development consent can be granted for the future carrying out of works and for the past use of works on the land (Ralph Lauren at [128]). However, as the Council correctly asserts, consideration of the 2018 DA in the 2019 Class 1 proceedings must be carried out without regard to the past unlawful works and the unlawful use of the land by the VT parties (Ralph Lauren at [128]). As was opined by King CJ in Kouflidis v Corporation of the City of Salisbury (1982) 29 SASR 321, "the unlawful user of the land should gain no advantage from having established an unlawful use. Any arguments based either directly or indirectly upon the unlawful use should be firmly rejected" (at 324).
In my opinion, the VT parties' construction of "existing" development should not be accepted. First, it would permit them to take advantage of the unlawful existing works that gave rise to a breach of the EPAA and the consequential making of the 2014 consent orders remedying that breach. Second, even if the "existing" development was constituted by the works described in the 2014 consent orders, those works have not, as the evidence discloses, commenced in any substantive way.
The term "development" for the purposes of the EPAA is defined in s 1.5 as: 1.5 Meaning of "development" (1) For the purposes of this Act, development is any of the following: (a) the use of land, (b) the subdivision of land, (c) the erection of a building, (d) the carrying out of a work, (e) the demolition of a building or work, (f) any other act, matter or thing that may be controlled by an environmental planning instrument. (2) However, development does not include any act, matter or thing excluded by the regulations (either generally for the purposes of this Act or only for the purposes of specified provisions of this Act). (3) For the purposes of this Act, the carrying out of development is the doing of the acts, matters or things referred to in subsection (1).
The terms "work" and the "carrying out of a work" are defined in s 1.4 of the Act to include: 1.4 Definitions work includes any physical activity in relation to land that is specified by a regulation to be a work for the purposes of this Act, but does not include a reference to any activity that is specified by a regulation not to be a work for the purposes of this Act. The carrying out of a work includes: (a) the renewal of, the making of alterations to, or the enlargement or extension of, a work, or (b) enclosing a public place in connection with the carrying out of a work.
Since the making of the orders in 2014 there has been limited "work" carried out on the land, and hence, limited "development" as that word is defined in the EPAA. Accordingly, even if recourse was had to the development on the land as at 2014, this would not assist the VT parties when regard is had to the physical acts carried out on the land in furtherance of the consent orders.
Therefore, for the purpose of cl 35 the "existing development" is, in this instance, the development authorised by the 1998 consent that has been lawfully carried out pursuant to it by the VT parties.
The MMLGC the subject of the 2014 consent orders does not therefore constitute "existing or approved" development for the purpose of cl 35 of Sch 3 of the EPA Regulations. The VT parties are therefore not entitled to the relief sought in prayer 2.
In any event, irrespective of the meaning attributed to the term "existing" development, this will not necessarily result in a finding that the 2018 DA for alterations and additions to existing or approved development is not designated development for the purpose of cl 35. This is because the alterations and additions the subject of the 2018 DA must not significantly increase the environmental impacts of the total development compared with the existing or approved development of the land. This comparative task is one for the consent authority, and the consent authority alone, to be determined in the 2019 Class 1 proceedings. In this context, it is noted that neither party took the Court to the detail of the 2018 DA and the 2019 Class 1 application.

[60]

Leave to Extend Time (Issue 13)

The time for commencing judicial review proceedings is generally limited to three months from the date of the decision under challenge. Rule 59.10 of the UCPR relevantly provides: 59.10 Time for commencing proceedings (1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision. (2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1). (3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following - (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest.
Rule 59.10 of the UCPR commenced on 15 March 2013 and the Council's proceedings were commenced on 1 July 2019. However, the further amended summons seeks to set aside determination of the EPA dating from 13 May 2009 to 7 November 2011, that is, before the commencement of the rule.
A threshold question raised by the Council's proceedings is whether r 59.10 applies given that it was not in force at the time the decisions sought to be impugned by the Council proceedings were made.
Does, therefore, the rule have retrospective effect?
The VT parties submitted that although a number of earlier decisions of this Court have held that r 59.10 does not operate retrospectively to decisions made before 15 March 2013 (Regional Express Holdings Ltd v Dubbo City Council (No 2) [2013] NSWLEC 113 followed in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122), recent authority in this Court has held to the contrary (Randren House Pty Ltd v Water Administration Ministerial Corporation (No 4) [2019] NSWLEC 5 at [209]-[236]).
In Randren (No 4), the Court noted (at [231]) that the decisions in both Regional Express and Patsalis v Attorney General for the State of New South Wales [2013] NSWCA 98 (in which the issue was raised, but not determined) acknowledged that a final conclusion on the question of retrospectivity had not been determined, and moreover (at [233]-[234]), that the analysis in Regional Express erroneously considered that UCPR 59.10 had the effect of extinguishing a substantive right to challenge a decision by way of judicial review, rather than a mere procedural requirement. As the Court reasoned (at [234]): 234 I am of the opinion that the Respondents' submissions accurately identify the distinction between, on the one hand, the loss of a substantial right (such as would be the case if there were a total prohibition in relation to decisions made earlier than the three-month limitation period) and, on the other hand, the imposition of a procedural process. I am, respectfully, firmly of the view that r 59.10 does not have the effect of denying a litigant "a proper opportunity to commence [an] action despite the coming into effect of the new limitation period", to use Biscoe J's words. The operation of r 59.10 should be regarded as procedural. In my opinion, requiring an applicant to set out their case as to why discretion should be exercised in their favour in order to secure the grant of leave to commence judicial review of a decision older than the three months specified in the rule simply brings a desirable rigour to the process. With r 59.10 applying to older decisions made prior to the coming into effect of the rule, there is no lessening of the desirable application of the principles referred to by Biscoe J in [7] of his Regional Express judgment: 7 A judicial review court is concerned with maintenance of the rule of law in the conduct of public authorities but the rule of law is strengthened by provisions such as r 59.10 requiring the discipline of bringing proceedings within a reasonable time so that the proper business of government and the reasonable interests of third parties are not unjustly prejudiced. In considering whether to extend time, the factors listed in r 59.10(3) are not exhaustive. The weight to be given to relevant factors will depend on the circumstances of the particular case and may require the court to carry out a balancing exercise. As regards the factor referred to in r 59.10(3)(c), a claimant cannot fairly be criticised for failing to take action before he knew or, by exercising reasonable diligence, should have known that there was anything to take action about.
More recently in O'Connor v State of New South Wales [2017] NSWCA 335 the Court of Appeal noted the tension in authorities in this Court on this issue and said (at [18]): 18 Prominence was given in oral submissions to what was said to be a divergence in authority between decisions of the Land and Environment Court and the Supreme Court in relation to whether r 59.10 has retrospective effect. The point was raised, but not determined, in Patsalis v Attorney General for the State of New South Wales [2013] NSWCA 98 at [6]. In Regional Express Holdings Ltd v Dubbo City Council (No 2) [2013] NSWLEC 113, Biscoe J was dealing with an application to review decisions made on 22 October 2012 and 25 February 2013, shortly before the rule commenced on 15 March 2013. The proceedings were commenced on 23 May 2013. His Honour held that the rule did not apply to the first decision, but in any event would have granted an extension of time if it did: at [12]-[15]. The decision was followed by Pepper J in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122. It is not necessary to express a view as to the correctness of those decisions, nor as to whether r 59.10 is to be regarded as procedural for the purposes of the distinction drawn in Yrttiaho v Public Curator of Queensland (1971) 125 CLR 228; [1971] HCA 29, nor as to whether the terms of r 59.1 as to the applicability of the Part displace the presumption against retrospective operation.
O'Connor was quoted in Cudgegong Australia Pty Ltd v Transport for New South Wales [2018] NSWSC 929 (at [87]) where Davis J went on to observe and hold that (at [88]-[91]. His Honour's reasoning was not overturned on appeal on this issue: Cudgegong Australia Pty Limited v Sydney Metro [2018] NSWCA 298 at [10]): 88 It may be observed that, to this point, there is no authority or guidance from the Court of Appeal on the issue, seemingly, because the point has not been squarely raised. Campbell J (as his Honour then was) appears to have assumed the rule was a procedural requirement partly, at least, on the basis that it did not offend the doctrine from Kirk v Industrial Court of New South Wales (2010) 239 CLR 531. With great respect to Campbell J, the fact that the rule does not transgress Kirk is not determinative. The power to extend time would go some way to ensure that. 89 Ordinarily, a requirement in the rules of court for commencing proceedings or some interlocutory action would not be regarded as a substantive requirement, unlike a provision in the Limitation Act 1969 (NSW) or some similar statutory provision. As such, the defendant's argument concerning r 59.10 needed to elevate the status of that rule to something akin to a limitation period in order to justify the dismissal of the proceedings on a summary basis for a failure to comply with that rule. To the extent that r 59.10 is to be regarded as similar to a limitation period, the change effected by the introduction of that rule would have to be regarded as affecting substantive rights. In those circumstances it would not operate retrospectively. If the rule was merely a procedural change it would be a rare case where a failure to comply with the rule, particularly given the power of extension in sub-r (2), would justify a summary dismissal of proceedings. 90 In my opinion, the rule does not operate retrospectively for reasons similar to those given by Biscoe J in Regional Express at [14]. If the rule operated retrospectively it would deny to any applicant the right to challenge any decision made more than three months before Pt 59 commenced, subject only to a right to have a discretion exercised to extend the time period. A discretionary decision can only be challenged if an error of the type discussed in House v The King (1936) 55 CLR 499 is made out. In that way, substantive rights would be affected. 91 Although r 59.1(2) provides that Pt 59 does not apply to proceedings commenced before the commencement of Pt 59, there is nothing in that Part or in r 59.10 particularly which requires a challenge to decisions made before the Part commenced to be made within three months of the commencement of the Part. That appears to me to be another matter tending to suggest that the rule does not apply to decisions made prior to the commencement of the Part.
While comity does not compel me to follow the decision of Davis J, I find it to be persuasive and I am inclined to do so. I therefore come to the same result that I did in Westlime (applying the reasoning of Biscoe J in Regional Express). I note in this regard that Randren did not find that Regional Express (and by extension Westlime) was plainly wrong.
Accordingly, the Council's judicial review proceedings were not commenced contrary to r 59.10 of the UCPR and are therefore within time.
This conclusion is not unimportant insofar as many of the decisions on this issue have avoided any final determination of the matter by, alternatively, deciding to extend time if the conclusion reached on the retrospective operation of the provision is wrong.
In the present case, for the reasons relevantly given in the VT parties' proceedings, I would, on balance, be disinclined to grant an extension of time having regard to the discretionary factors discussed above (at [339]-[358]), especially having regard to the Council's unexplained delay in commencing proceedings (see the non-exhaustive list discretionary considerations to take into account in extending time set out in Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146 at [34]).
While the Council was justified in not commencing proceedings against the variations to EPL 11395 that are subject of challenge prior to the commencement of the 2012 proceedings, the strength of this justification fades having regard to the passage of time after the 2014 consent orders were made and all but evaporates after the EPA raised concerns in correspondence in 2017 about the need for development consent to make the variations to EPL 11395 that the VT parties proposed.
The Council submitted that since the making of the 2014 consent orders "the Site has been on hold", and therefore, any controversary arising under its proceedings would have been of academic interest only, which if litigated (that is, prior to the VT parties commencing their proceedings), would have constituted a non-justiciable hypothetical controversy (Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 at [45]-[47]). Given that many of the arguments relied upon by the Council in the present proceedings are relevantly identical to those raised by it in the VT parties' proceedings, this explanation must be rejected. There was nothing preventing the Council from commencing its proceedings earlier.

[61]

Estoppel and Related Doctrines Do Not Apply

The VT parties submitted that the Council is precluded from raising the allegations it does in its judicial review proceedings by reason of the doctrines of issue estoppel and Anshun estoppel (it was accepted that no res judicata arose in respect of the EPA) on the basis that: 1. first, the issue of whether the consent authority approved the development carried out on the land prior to 2014 (an absence of consent is the factual foundation of the Council's contentions under s 50(2) of the POEOA) was subsumed by the making of the 2014 consent orders (issue estoppel); and 2. second, the allegation that specific determinations of the EPA from 2009 to 2011 were invalid so as to render unlawful any development carried out in reliance upon those determinations concerns matters that were so relevant to the subject matter of the 2012 proceedings and the making of the 2014 consent orders that it was unreasonable for the Council not to raise those matters in the 2012 proceedings. The 2014 consent orders assumed the validity of EPL 11395 in force at that time (including the existence of cell W) (Anshun estoppel).
In this context if should be recalled that the 2104 consent orders expressly refer to the need for further variation of EPL 11395 to be obtained (order 4.3) and that prior to those orders being made, the EPA's approval of the orders had been obtained in principle. According to the VT parties, if the Council had any concerns about the validity of the earlier variations or the in-principle approval, it could, and should, have raised this matter during the 2012 proceedings and that it should now be estopped from doing so.
Further and in the alternative, the VT parties contended that to permit the Council in 2019 to raise matters about the validity of the EPA's pre-2012 conduct based on an absence of relevant development consent would cause, for the reasons advanced above (see generally at [339]-[358]), unjustifiable oppression to the VT parties and give rise to the perception that the administration of justice is inefficient thereby constituting an abuse of process.
The gravamen of the Council proceedings is whether, if there was no consent in force permitting the development the subject of the applications to vary EPL 11395, the power contained in s 50(2) of the POEOA was enlivened and, if not, whether the variations are invalid. The Council proceedings are subsequent to the 2012 proceedings where the issue of whether development consent was required to carry out the works (which formed the basis of the variations to EPL 11395) had been implicitly dealt with by the making of the 2014 consent orders. The VT parties have been, in effect, successful in the 2012 proceedings in this regard and ought not be vexed by a relitigation of the same or overlapping issues.
In my opinion, however, because the validity of the variations to EPL 11395 now challenged were not the subject of the 2012 proceedings (no party pleaded that they were relevant to any issue) and the EPA was not a party to those proceedings (it was not involved in the negotiation or formulation of the 2014 consent orders), no estoppel arises. The parties and their privies are not the same as between the two sets of proceedings.
While the EPA was consulted by both VT and the Council regarding the Amended 2013 LEMP and the 2013 LMP following the commencement of the 2012 proceedings, it neither approved nor endorsed those documents and it is therefore difficult to conceive of how an issue estoppel or even an Anshun estoppel arises to thwart these proceedings.
Furthermore, although there is some overlap between the issues raised in the 2012 proceedings and those central to the Council proceedings, it cannot be said that the 2012 proceedings that culminated in the making of the 2014 consent orders directly involved issues of fact or law that dispose of the issues raised in the Council proceedings, especially in relation to the proper construction of, and the exercise of power by the EPA pursuant to, s 50(2) of the POEOA. Viewed another way, the matters implicitly determined by the Court in the 2012 proceedings upon the making of the 2014 consent orders were findings that amounted to no more than "steps in a process" of reasoning that was supportive of the final conclusion by the Court that the works the subject of those orders were appropriate to remedy the breach of the EPAA committed by VT (see Blair v Curran cited above). This is not sufficient to estop the Council from raising similar issues in its proceedings.
Finally, the doctrines of Anshun and issue estoppel could, in any event, have no effect on the EPA's exercise of power under s 50 of the POEOA to allow or refuse an application for variation of the EPL (Chamberlain at 510, Sammut at [57], Warlam Pty Ltd v Marrickville Council (2009) 165 LGERA 184; [2009] NSWLEC 23 at [45] and see the discussion above at [387]-[401]).
As stated above, the categories of abuse of process are not closed. There may be an abuse of process where a later set of proceedings does not involve precisely the same parties as the initial proceedings. This can include circumstances where the same plaintiff sues a defendant in a second set of proceedings that has either already been sued or is related to, or associated with, the successful defendant in an earlier set of proceedings (CBRE (V) Pty Limited v Trilogy Funds Management Limited [2021] NSWCA 316 at [20]).
The issues arising in the Council's proceedings, although overlapping, cannot be regarded as sufficiently similar with respect to the subject-matter and the parties in the 2012 proceedings. On no view can it be said that the Council's conduct in commencing the Council proceedings was so unreasonable and that the continuation so unjustifiably oppressive to the VT parties that it brings the administration of justice into disrepute. No abuse of process arises.
Finally, in circumstances where the EPA was not a party to the 2012 proceedings and no time limit applies to the commencement of the Council proceedings for the reasons given above, the proceedings do not give rise to an abuse of process on the basis of the effluxion of time between the granting of the variations and the filing of the summons in the Council's judicial review application.

[62]

Are the Variations to EPL 11395 Invalid by Reason of the Operation of s 50(2) of the POEOA?

The Council contends that the variations to EPL 11395 made by the EPA on 13 May 2009, 29 June, 9 July, 30 August 2010 and 7 November 2011 ("the variations") are invalid by reason of the operation of s 50(2) of the POEOA.
It was uncontentious that EPL 11395 relates to a "controlled development" within the meaning of the provision.
In short, the Council submits that because there was no development consent in force permitting the development the subject of the applications to vary EPL 11395 in force at the relevant time, the EPA lacked the statutory power to vary the EPL. That is, there was no satisfaction of the jurisdictional fact necessary to enliven the power contained in s 50(2) of the POEOA. This is so notwithstanding the extant nature of the 1998 consent because: 1. the scope and the extent of the development contained in the improved variations to EPL 11395 far exceeded that approved by the 1998 consent (for example, the variations made provision for the excavation of cells W, X, Y and Z for the emplacement of 1 million m3 of general solid waste (non-putrescible) in circumstances when the volume of waste permitted to be received onto the land by the 1998 consent had already been exceeded); and 2. the nature of the development contained in the variations to the EPL was different to that approved in 1998 insofar as it constituted development for the purpose of a waste disposal facility in its own right.
For the reasons given earlier in the judgment (at [244]-[262]), I find that that no consent has been given for the works proposed by the VT parties in the impugned EPL 11395 variation applications. This was not cured by the Court making the 2014 consent orders. In making those orders the Court was not granting development consent to the works contained in those license variations. Nor did the EPA grant consent to the works the subject of the variation applications. It had no power to do so under either the EPAA of the POEOA. The variations are therefore invalid on this basis.
Because the Court has held above in the VT proceedings that the variations to EPL 11395 did not have the effect of modifying the 1998 consent through the mechanism of the operation of conditions 1 and 2, as that consent is properly construed, it is not strictly necessary to determine the issues raised by these proceedings.
However, if the Court is wrong, it is necessary to consider the VT parties' submission that the operation of the words "(other than on the initiative of the EPA)" were sufficient to render the variations to the licence valid.

[63]

Proper Construction of s 50(2) of the POEOA

The Council asserted in its pleadings that each of the impugned notices of variation are invalid. However, as the EPA submitted, correctly in my view, the relevant issue is the validity of the specific amendments under review. For the purpose of s 50(2) of the POEOA a variation includes "attaching…a condition to a licence, the substitution of a condition, the omission of a condition or the amendment of a condition" (s 58(2)).
It is necessary to have regard to the proper construction of the words "(other than on the initiative of the EPA)".
It was item 9 of Sch 1 of the Protection of Environment Operations Amendment Act 2005 that inserted the words "or varied (other than on the initiative of the EPA)" into s 50(2) of the POEOA. Neither the second reading speech of the Protection of the Environment Operations Amendment Bill 2005 nor the accompanying explanatory notes are, however, of assistance in the construction of the present provision.
The words in parentheses in s 50(2) qualify the term "varied", not "grant". This means that s 50(2) empowers the EPA to vary an EPL on its own initiative but does not empower it to grant a licence. The language in s 50(2) may be contrasted with s 58(3) that expressly provides for a licence to be varied either upon an "application by the holder of the licence or on the initiative of the appropriate regulatory authority".
In the case of a "controlled development" such as the one in question, s 50(2) permits the EPA, acting on its own initiative, to vary an EPL to regulate a particular use of the land the subject to the licence notwithstanding that development consent has not been granted for that use. This power is, however, constrained in two ways.
First, the power is not available unless the variation is at the initiative of the EPA. The VT parties sought to argue that it was sufficient if the variation was at the initiative of both the EPA and the licence holder.
In my view, again as correctly submitted by the EPA, "on the initiative of" means a variation of an EPL solely on the initiative of the EPA without any request or application from the licence holder. Were it otherwise, those words would have little, if any, work to do.
This interpretation is harmonious with the ordinary meaning of the expression "initiative", which is defined in the Oxford English Dictionary (online ed) to mean, "that which initiates, begins, or originates; the first step in some process or enterprise". The Macquarie Dictionary (online ed) had a similar definition, viz, "an introductory act or step; leading action".
Such a construction is also in conformity with the statutory context, especially s 58(3) of the POEOA which distinguishes between the variation of an EPL following an application by the licensee or on the initiative of the "appropriate regulatory authority".
And moreover, as the EPA observed, it would be "a rare circumstance" for it to act on its own initiative to vary an EPL to authorise a particular use of the land that would otherwise require development consent under the EPAA but where none had been obtained. This is because, first, s 45 of the POEOA requires the EPA in determining whether to approve an application to vary an EPL to take into consideration any relevant environmental impact statement or other statement of environmental effects prepared by an applicant under the EPAA. Consideration of such material is likely to include consideration of the terms of a development consent granted in connection with those documents (which are prepared for this purpose). Second, the EPA is likely to be cognisant of the need to ensure consistency in decisions regarding the use of land and to avoid conflicting permissions in respect of that use (see s 3(e) of the POEOA).
In the present case, an examination of the documentation relating to each of the variations challenged by the Court does not establish that the relevant variations were sought at the initiative of the EPA. On the contrary, the variations were uniquely and unequivocally at the initiative of VT. That is, the EPA made the variations to EPL 11395 in response to a proposal or request made by VT and in the context of information provided by VT in connection with such an application. It follows that none of the impugned variations were made on the "initiative of the EPA" for the purpose of s 50(2) of the POEOA.
The VT parties invoked, erroneously in my view, the principle of regularity to argue that it was incumbent upon the Council to negative the possibility that the EPA relied upon the power conferred by s 50 of the POEOA to approve the variations to EPL 11395 on its own initiative, even in the absence of any evidence to this effect, and that the EPA has not done so.
The principle of regularity was explained in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 (at 164): Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to that office … R v Brewer (1942) 66 CLR 535 at 548 … And a council which must form an opinion as to whether there will be any detriment upon the granting of a planning permit is presumed to have formed the opinion before granting the permit: Pearce v City of Coburg [1973] VR 583.
The presumption is rebuttable and arguably applies to matters of both form and substance in the following way (Darley Australia Pty Ltd v Walfertan Processors Pty Ltd (2012) 188 LGERA 26; [2012] NSWCA 48 at [114]-[118]): 114 The presumption of regularity has been described as both a "rebuttable presumption of law" (JD Heydon, Cross on Evidence (LexisNexis, 2002), 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) 127 LGERA 7 at [52] per Hodgson JA (Ipp JA and Davies AJA agreeing)), whose "natural home…is public law": Natural Resources, Minister for v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164; 62 LGRA 409 at 418 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) 4 CLR 835 at 850 per Griffith CJ (Barton and O'Connor JJ agreeing), citing Knox County v. Ninth Nat Bank of City of New York 147 US 91 (1893). In Natural Resources, Minister for v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164; 62 LGRA 409 at 418 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 (2003) 127 LGERA 7 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. 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 Ltd v Belmorgan Property Development Pty Ltd (2008) 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) 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.
Application of the presumption therefore does not assist the VT parties. Rather, the question is one of evidence and, as stated above, the evidence plainly discloses that the variations were sought and obtained exclusively at the initiative of the VT parties, and not the EPA. This finding is sufficient to dispense with any issue raised by the parties as to who bore the onus of proof under s 50(2) of the EPAA; the evidence renders the question moot.
The second constraint on the exercise of the power contained in s 50(2) of the POEOA is that it is unavailable where the proposed variation authorises a significant increase in the environmental impact of the activity that would be authorised by the proposed variation and that this has not been the subject of environmental assessment and public consultation under the EPAA (see s 58(6)).
These are jurisdictional facts the existence of which are preconditions to the exercise of the power. The second limitation on the exercise of the power is significant because it applies irrespective of whether or not the application to vary the EPL is made by the licence holder or on the initiative of the EPA. Thus in Dungog Basten JA opined that (at [182], footnotes omitted): 182 There are a number of statutory indications that the requirements in s 58(6) of the 1997 Act are jurisdictional facts, review of which is not limited to consideration of the opinion of the EPA. First, the structure of the Act is such as to separate out the preconditions for the exercise of the power to grant or vary a licence from the factors to be taken into account in exercising those functions. Thus, s 50, s 58(6) and s 59 identify criteria of engagement of a power, not factors to be taken into account in the exercise of the power. None of those provisions is expressed to depend upon the opinion of the EPA. By way of contrast, other provisions of the 1997 Act are so expressed. The comparison suggests that the legislature was attuned to the difference in approach and, where it intended that a matter should be determined by the EPA, it said so. It did not say so with respect to the matters identified in s 50(2) or s 58(6).
In the same decision Preston J stated (at [342]): 342 As a matter of fact, the proposed licence variation had not been the subject of environmental assessment and public consultation under the EPA Act, being the jurisdictional fact in s 58(6)(b) of the POEO Act. It mattered not, contrary to the appellants' argument, that the development the subject of the 1991 consent had been the subject of environmental assessment and public consultation under the EPA Act. That development was not the development that would be authorised by the proposed licence variation. It is the development that would be authorised by the proposed variation of the EPL, with its significantly increased production capacity and environmental impacts, that needed to be the subject of environmental assessment and public consultation under the EPA Act. That development, however, had not been the subject of such environmental assessment and public consultation.
Were it necessary to decide (in the light of the conclusion reached above concerning who initiated the variations, it is not), an examination of the variations reveal that they sought to authorise a significant increase in the environmental impact of the activity being carried out on the land in circumstances where, which was not in dispute, there had been no environmental assessment and public consultation under the EPAA. In other words, the variations were not permitted pursuant to s 58(6) of the POEOA.
For these reasons, the power contained in s 50(2) of the POEOA had not been properly enlivened at the time the variations were determined by the EPA and they are invalid.

[64]

Severance

The issue of severance arises given the Council's challenge to the validity of each notice of variation. Because the Court has found that the variations to EPL 11395 are invalid, the question that follows is whether the Court can sever any of the invalid amendments to the licence.
The VT parties contended that the variations could not be severed because they related to "the heart of the operation the subject of" EPL 11395, namely, landfilling, the excavation of the cells, and all necessary preparatory works to these activities. Severing these conditions would, in the submission of the VT parties, result in an EPL that was in disconformity with subsequent development on the land with the result that EPL 11395 as varied up to and including the variations made on 8 December 2008 would remain extant.
The offending conditions may be severed from EPL 11395. There are several reasons why this is so. The first is the application of s 32 of the Interpretation Act 1987. EPL 11395 is an "instrument" for the purposes of the Interpretation Act (see the definition of that term in s 3(1) of that Act and, by analogy, authorities such as Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 2) (2010) 172 LGERA 25; [2010] NSWLEC 1 (authorisation under the Mining Act 1992) and Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales [2018] NSWLEC 10 (licence issued under Pt 6 of the Threatened Species Conservation Act 1995)).
Section 32 of the Interpretation Act provides that EPL 11395 is to be construed so as to not exceed the power conferred by the enactments under which it is made (namely, the POEOA). That is, the Court may read down an instrument so that it is within power to preserve its validity to the extent possible: 32 Instruments to be construed so as not to exceed the powers conferred by the Acts under which they are made (1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made. (2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made: (a) it shall be a valid provision to the extent to which it is not in excess of that power, and (b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected. (3) This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made.
Section 32 applies to an instrument part of which is within power and part of which is not (s 32(2) of the Interpretation Act. It is not, however, engaged when there is no power to make the instrument: El Cheikh v Hurstville City Council (2002) 121 LGERA 293; [2002] NSWCA 173 at [38]).
Accordingly, s 32 may be applied to read down an instrument provided that the operation of the remainder of the instrument remains the same (Director of Public Prosecutions (NSW) v Yigit [2008] NSWCA 226 at [26]). However, s 32 cannot be applied to read down an instrument where, upon its proper construction, it is clear that the instrument was intended to operate fully and completely according to its terms or not at all (Victoria v The Commonwealth (1996) 187 CLR 416; [1996] HCA 56 at 501-503 and El Cheikh at [39]-[40]).
Therefore, pursuant to s 32 of the Interpretation Act EPL 11395 must be read down so that it is within power by excising from the licence the conditions and amended conditions inserted into the EPL by the invalid variations (see those listed in the further amended summons in the Council's proceedings).
There is no question that the remainder of EPL 11395 is not within power or that there was no power to issue the licence. Nor can it be said that the removal of the invalid conditions will impermissibly alter the EPL's intended operation or render it inoperative. There is nothing in the construction of EPL 11395 that means that the licence was intended to operate with these variations or not at all (Victoria v The Commonwealth at 501-503 and El Cheikh at [39] and [40]).

[68]

Prayer 1

In respect of prayer 1, the Council submitted that because it is not possible for the Court to understand the meaning and effect of the declaration sought in prayer 1 of the VT parties' further amended summons by reason of the convoluted nature of the definition of MMLGC at paragraph 75 of the FAPOC, it is not possible to make the declaration sought.
The Court accepts that, as defined in the FAPOC, the precise meaning of the MMLGC development is opaque, however, the VT parties clarified the meaning of the definition during oral argument (T1376:44-49) so that prayer 1 need only be read with paragraph 75(b) of the FAPOC (although no formal amendment was sought). Accordingly, the VT parties now seek a declaration in the following terms: No further development consent is required by the Applicant to carry out the development required to be carried out in conformity with the 2014 orders.
A declaration in these terms would, the VT parties argued, be sufficiently clear and would be consistent with the relief granted by the Court in Anastasiou (at [62]): 62 The Court declares that: (1) Works carried out by the Applicants in early 2018 to install a ventilation unit on the roof of the building located at 43-45 North Steyne Manly New South Wales pursuant to orders made by this Court on 16 October 2015 in proceedings no 41040 of 2011 did not require the grant of development consent by the Fifth Respondent in order for those works to be lawfully carried out. (2) The further works relating to the installation of a ventilation unit on the roof of the building located at 43-45 North Steyne Manly New South Wales required to be carried out by the Applicants pursuant to orders made by this Court on 9 May 2019 in proceedings no 291412 of 2017 may lawfully be carried out without first obtaining the grant of development consent by the Fifth Respondent…
The Council argued that the uncertainties inherent in the 2014 court orders rendered them incapable of being the subject of the declaratory relief framed above because of the reference in those orders to the subsequent version of the Amended 2013 LEMP and 2013 LMP, which meant that the scope of the development described in those orders was uncertain.
Properly construed (see above), the 2014 consent orders are sufficiently certain. The orders specify the limits of the remedial works to be undertaken (see the prescription in order 4). In addition, as the VT parties submitted, the unchallenged evidence of Byrne was that the volume of waste required to be removed from mound B was 62,727 m3. There is nothing uncertain about this calculated amount.
In my view, the declaration should be made in the terms proposed by the VT parties during oral argument (that is, adopting and adapting the language and structure of the declarations made in Anastasiou, rather than the terms of the declaration sought in the VT parties' further amended summons). The reasons are two-fold. First, merely because the Council now conceded that, as a matter of principle, no further development consent is required to carry out the 2014 consent orders, is not an impediment to the granting of the declaratory relief sought by the VT parties. The concession does not render the relief inutile. As Biscoe J stated in Cutcliffe v Lithgow City Council (2006) 147 LGERA 330; [2006] NSWLEC 463 (at [20]): 20 In my view, in cases involving development consents, generally it would be unjust to an applicant to deny declaratory relief merely because the respondents elect not to oppose it, regardless of the merit of the applicant's case. As Zamir and Woolf, The Declaratory Judgment (3rd ed, 2002) p 129 point out, … there is nothing particular about the nature or consequences of declaratory relief which calls for extraordinary caution. On the contrary, not being coercive relief, it is less harmful, potentially, than other remedies, notably injunctions and specific performance. Extreme caution is both unnecessary and undesirable. On the other hand, care is needed, not only to avoid indiscriminate and unjustified use of the declaratory power, but also to prevent declaratory actions from being dismissed and the scope of the remedy being unduly restricted out of extreme caution.
Second, the Council's further concession (again made in closing submissions) that a remedial order made pursuant to an exercise of the Court's power under s 124 of the EPAA "ostensibly authorised" development in accordance with the Amended 2013 LEMP and 2013 LMP was qualified insofar as the Council did not accept that the making of the 2014 consent orders was "within jurisdiction" (T1354:08-1356:44, 1358:12-19, 1324 and 1326:02-16). It was, therefore, a concession of limited value.
The principles relating to the granting of declaratory relief are well established (Marshall Rural Pty Ltd v Basscave Pty Ltd (No 3) [2018] NSWLEC 62 at [25]-[30]).
In Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1 Preston J considered the Court's position in relation to the making of declarations albeit in civil enforcement proceedings. He relevantly held that although the Court had jurisdiction to make declarations where the respondents had breached planning and environmental statutes, on the facts before him, as a matter of discretion, a declaration would not be appropriate because, first, the making of a declaration would not have any practical effect in the circumstances; second, declarations of breach are not necessary in order for the Court to have jurisdiction to make orders, including injunctive orders; third, a declaration of breach by itself neither remedies past breaches nor restrains future breaches; fourth, care must be taken not to use a declaration as a substitute for criminal prosecution; and fifth, while a legitimate purpose of proceedings (in that case civil enforcement proceedings) is for there to be a finding by the Court and through its judgment, a public pronouncement that a breach of the law has occurred, this effect can be equally achieved by the Court making findings in its judgment which is a public document.
His Honour's remarks have been considered in subsequent cases (Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6, Marshall, Inner West Council v Balmain Rentals Pty Ltd [2019] NSWLEC 24 and Penrith City Council v Dincel Construction System Pty Ltd and Gaonor Pty Limited (OSSM case) [2019] NSWLEC 198).
I have considered the principles in Lani, Hilltop (No 4), Inner West and OSSM. In my view, the mere pronouncement of this judgment alone would not constitute sufficient relief and the declaration sought ought be made. This is because the making of the declaration unequivocally resolves one of the principal controversies arising in the VT proceedings, a controversy that until final submissions was still being actively pursued by the Council. The declaration sought does not possess the vice of imprecision, on the contrary, it provides finality and certainty in the determination of this litigation which assists in achieving justice. Viewed this way, there is every utility in making the declaration sought above by the VT parties in respect of the prayer 1 for relief.

[69]

Prayer 2

During the course of argument, the Court expressed reservations about making a declaration in these proceedings in the form sought in prayer 2 which would affect the separate but extant 2019 Class 1 proceedings concerning the 2018 DA. The Court was concerned that to do so could amount to it impermissibly answering a hypothetical questions or give advisory opinions (Bass at [45]-[47]) because the declaratory relief was not necessary to quell the controversy arising in the VT proceedings.
In light of the conclusion reached above by the Court about the success of this prayer for relief, any issue concerning the ability, or the utility, of the Court granting relief in respect of prayer 2 need not been determined.
It suffices to make the following observations. First, I agree with the VT parties that, prima facie, the Court has jurisdiction to make the declaration under s 20(2)(c) of the Land and Environment Court Act. Second, there is a real and not hypothetical controversy between the parties relating to the legal status of the MMLGC as a result of the making of the 2014 consent orders insofar as the VT parties contend that the development the subject of those orders does not require any further development consent and that it therefore constitutes "development (whether existing or approved)" within the meaning of cl 35 of Sch 3 of the EPA Regulations. Third, the Court arguably has the jurisdiction to make declarations in Class 4 that are in truth directed to the resolution of proceedings in Class 1 of its jurisdiction (DEXUS Funds Management Limited v Blacktown City Council (No 3) [2011] NSWLEC 230 at [44]). The matter the subject of the justiciable controversy arising in these Class 4 proceedings is not confined only to these proceedings and can (and in this case does) include the controversy arising in the 2019 Class 1 proceedings (Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 at [148]). Furthermore, the relief sought by the VT parties by prayer 2 can only be sought in Class 4 proceedings.

[73]

The Council Proceedings

Because it has been held that the variations to EPL 11395 did not have the effect of amending the 1998 consent in the manner contended for by the VT parties, it is not necessary to determine the issues raised by the Council proceedings. However, if this conclusion is not correct, then the alternative relief sought in the Council proceedings should be granted having regard to the Court's conclusion on severance. That is: (a) set aside each of the following amendments made by the second respondent by way of its decision to issue the 13 May 2009 variation: (1) the insertion of the amended form of condition O12.1; (2) the insertion of conditions U3.1 to U3.3 inclusive; and (3) the insertion of conditions E4.1 and E4.2; (b) set aside each of the following amendments made by the second respondent by way of its decision to issue the 29 June 2010 variation: (1) the insertion of the amended form of condition O11.3; (2) the insertion of the amended form of condition O12.1; and (3) the insertion of conditions E1.1 to E3.2 inclusive; (c) set aside each of the following amendments made by the second respondent by way of its decision to issue the 9 July 2010 variation: (1) the amendments made to conditions O11.1 to O11.3 inclusive; (2) the insertion of condition E4.1; (3) the insertion of condition E5.1; (4) the insertion of condition E7.1; (5) the insertion of condition E8.1; and (6) the insertion of conditions E9.1 and E9.2; (d) set aside each of the following amendments made by the second respondent by way of its decision to issue the 30 August 2010 variation: (1) the insertion of the amended form of conditions O11.1 to O11.3 inclusive; (2) the insertion of conditions O11.4 and O11.5; (3) the insertion of amended form of conditions E4.1 and E5.1; and (4) the insertion of the amended form of conditions E7.1 to E9.1 inclusive; (e) set aside each of the following conditions in the amended version of the EPL affected by the second respondent's decision to issue the 7 November 2011 variation: (1) conditions O6.6 to O6.10 inclusive; (2) condition E4.1; (3) condition E5.1; and (4) conditions E7.1 to E9.2 inclusive.