Water Administration Ministerial Corporation v Auburn Council & Ors

I will refer to Auburn Council throughout the judgment as " the Council ".

The five related proceedings are presently before the court for the following purposes: (a) In matter 40055 the Corporation seeks interlocutory relief against the two companies by way of an order restraining work , and expedition of the substantive hearing . The Class 4 application also refers to an order for various stabilisation and remediation works, but that is not sought on an interlocutory basis. Also, no interlocutory relief is sought against the Council, but the Council was heard in the proceedings, notably urging on the court, that it must be concerned about the fact that consents, which are not directly involved in these proceedings, have already been issued for development to be carried out on some lots in the subdivision involved (namely lots 123-127). Relevant consents granted between 8 December 1999 and 17 February 2000 were tendered as Exhibit C1 , and some of the works already carried out can be seen in Exhibit W9 . (b) In matters 40033 and 10250, involving only Silverwater and the Corporation, the Corporation now seeks by way of its Notices of Motion dated 5 April 2000 only the vacation of the allocated hearing dates 8 and 9 May. (See pars 5 and 2 of the respective Notices of Motion). The balance of the Notice of Motion in each case has largely been overtaken by the substance of matter 40055. (c) Matters 10074 and 10276, both again involving only Silverwater and the Council, are before the court at the present time for mention only , as they are related to the other three matters and concern the same site. Those two matters are currently listed for hearing together on 26-28 June 2000, and their progress may be affected by the outcomes of this hearing of the issues summarised in pars (a) and (b) hereof.

The subject matter, and inter-relationship, of the various proceedings

All five proceedings concern the proposed subdivision and redevelopment for industrial and/or commercial purposes, of the former " BP " oil terminal site at 83 Derby Street Silverwater (described as lot 51 in DP 852045 or as lot 128 in DP 1005561 - the relationship of the DPs is not explained in the evidence) within the Council's area.

Duck Creek runs along the north-west/western boundary of this site. The land to the north of the site is a salt marshland, and to its east is a Mangrove channel, both of which, under the Rivers & Foreshores Improvement Act 1948 (" the Rivers Act ") are argued by the Corporation to be " tidal ". At least parts of these adjoining features, known as the " Lower Duck River Wetlands " have been declared part of the National Estate. (See document 1.1 in Exhibit W1 ). There seems to be no contest that these three features all come within the Rivers Act.

The evidence suggests that BP had its terminal on this site from at least approximately 1920 until it was purchased by Silverwater. During 1998 BP cleared its improvements, and undertook remediation works. The evidence suggests that BP may well be continuing to carry out some works on the site, but Silverwater went into occupation in June or July 1999, and commenced to " fill " it.

In any event, the site presents as vacant remediated land, subject to some recent building works fronting Derby Street (as referred to above in Exhibits C1 and W9 ).

Silverwater has undertaken various works on the subject site pursuant to a development consent from the Council and one, or arguably two, permits issued by the Corporation.

In matter 10250 Silverwater appeals against various conditions imposed upon the Corporation's written Rivers Act permit dated 10 March 2000, and in 40033 , Silverwater challenges the Corporation's powers to impose those conditions. 40033 was commenced on 28 February 2000 and in it the company also sought relief in the nature of " mandamus ", as the Corporation had not then issued any relevant permit. Matter 10250 was commenced on 22 March 2000.

In Matter 10074 (commenced 1 February 2000), Silverwater appeals against Council's deemed refusal of a DA for the construction of a warehouse on one of the lots (lot 104) established by the subdivision approved in Council's original development consent, and in Matter 10276 (commenced 29 March 2000) Silverwater appeals against a refusal by the Council to modify that consent (503/98) by the deletion of Condition No.2, which requires a " setback " of 30metres.

All four of these currently listed matters presume the validity of either or both of the original development consent, and its later modification by the Council, and either or both of the permit(s) issued by the Corporation, but in 40055 the Corporation challenges the validity of all four of those decisions.

Matter 40055 was commenced on an ex parte basis, and urgently, on the afternoon of Thursday 6 April. The Corporation says that because the integrated development procedures now provided by the Environmental Planning & Assessment Act 1979 (" EP&A Act ") were not followed , any permit issued on its behalf, as well as the consent granted and the modification approved by the Council, is/are all invalid. On its face the Class 4 application in 40055 does not, at present, challenge, in terms, the issue of permit(s) by the Corporation, but Counsel for the Corporation indicated from the very earliest stage of the hearing that he intended to amend his application accordingly, and I will grant leave for that purpose.

In the alternative , the Corporation claims that if the modified consent is not invalid, the companies are in continuing breach of some of the conditions imposed upon that consent (specifically conditions numbered 1, 24, 29, 32 and 35).

The Corporation submits that it would be a serious waste of the Court's resources if either of the currently scheduled simultaneous hearings, in 8-9 May and 26-28 June 2000 respectively, were to proceed before the threshold issues raised in Matter 40055, as to the validity of the relevant consents/permits , have been determined.

The Corporation argues that: 1. Because of the nature of the alleged " tidal " features neighbouring the site, Part 3A of the Rivers Act applies to the land. Hence there should be no excavation or removal of material in any areas less than 40m from the top of the banks of any water feature . (No work at all is allowed without a permit; a variety of works are proposed for the 40m strip and the Corporation contends environmental harm will result); and

2. On the basis of the new planning legislation regarding " integrated development ", the consent authority for the subdivision would be required to obtain the appropriate permit/approval from the Corporation before granting consent , and, if it does not obtain such permit or approval, it must refuse consent .

The relevant DA specified that the proposal was " non-integrated " development and, after argument, the applicant for consent withdrew from the proposal some work outside the subject land. Apparently the original consent envisaged work on some dumped concrete rubble, to the north of the site, which was to be replaced with clean fill.

The Council then conceded, on advice, that the development application, as so amended, was not " integrated development ", and proceeded to grant a consent on various conditions, one of which required (condition 3) a management plan to protect adjacent marshland, and another (condition 6) provided for documentation to be provided to Council before the issue of a construction certificate. The relevant DA foreshadowed a stormwater management plan, etc. but no details were provided.

The Corporation submits that the original consent process and the modification process should have followed the " integrated development " procedures. The result of their not doing so was to shut the Corporation out of the process, despite its expression of disagreement with the course which proved acceptable to the Council.

After the development consent was granted and work commenced on the site, the companies obtained from the Corporation, in March 2000, a written permit under Part 3A of the Rivers Act, and an urgent oral " approval " for some emergency remediation/protective works at a time of torrential rain. Minds differ on whether the Corporation has statutory power to issue oral approvals of any sort, either under Part 3A or otherwise, but that is a question I do not need to determine at this stage.

Relevantly during March and April 2000 both the Council and the Corporation issued notices of various types to the companies for certain works to be carried out on the site. Details of these notices will be given later in this judgment.

The General Manager - Corporate Finance of Trafalgar, Mr Braith Howard Williams, gave evidence on behalf of the companies, both in the witness box and by way of three affidavits which were read in full (one dated 28 February 2000, filed in 40033, and two dated 11 and 12 April 2000 respectively, filed in 40055).

The evidence on behalf of the Corporation was given by way of affidavit by two of its officers, Janne Elizabeth Grose and Paul Thomas Bourne, and orally by Bourne.

Affidavit and oral evidence on behalf of the Council was given by Senior Environmental Officer, Michael Shaun Forwood.

The relevant provisions of the Rivers Act are as follows:

The " long title " of the Act says that it is " An Act to provide for the carrying out of works for the removal of obstructions from and the improvement of rivers and foreshores and the prevention of erosion of lands by tidal and non-tidal waters; …. "

The following definitions appear in s 2: River includes any stream of water, whether perennial or intermittent, flowing in a natural channel, or in a natural channel artificially improved, or in an artificial channel which has changed the course of the stream of water and any affluent, confluent, branch, or other stream into or from which the river flows and, in the case of a river running to the sea or into any coastal bay or inlet or into a coastal lake, includes the estuary of such river and any arm or branch of same and any part of the river influenced by tidal waters.

Tidal waters includes the waters of the sea or of any lake, estuary, harbour, river, bay, lagoon or inlet of the sea in which the tide ebbs and flows.

Work to which this Act extends means any work for the purpose of: (a) the removal of dead or growing timber, or other vegetation or aquatic plants, or of silt, shingle, soil, sand, gravel, stone, rock or other matter or thing whatsoever, from the bed, banks or foreshore of any tidal waters or coastal lake or lagoon, or from the water or the bed or banks of a river or from any adjoining, adjacent or nearby lands, (b) changing or preventing the changing of the course of a river, (c) preventing the erosion of the bed or banks of a river or of adjoining, adjacent or nearby lands by the waters of a river, (d) preventing the siltation of the course of a river where such work is confined to the bed or banks of a river and adjoining, adjacent or nearby lands, (e) preventing the flooding of land by the waters of a river, (f) deepening, widening, straightening, or improving the course of a river, (g) preventing the inflow of sea water or saline water into the course of a river, or (h) preventing the erosion of lands by tidal waters or by the waters of any coastal lake or lagoon.

Part 3A of the Act is of particular relevance to this case and its relevant provisions include the following:

22A Definitions In this Part: … make an excavation includes cause or allow an excavation to be made. material means any part of the surface of any land or any matter lying beneath that surface. permit means a permit in force under this Part. protected land means: (a) land that is the bank, shore or bed of protected waters, or (b) land that is not more than 40 metres from the top of the bank or shore of protected waters (measured horizontally from the top of the bank or shore), or (c) material at any time deposited, naturally or otherwise and whether or not in layers, on or under land referred to in paragraph (a) or (b). protected waters means a river, lake into or from which a river flows, coastal lake or lagoon (including any permanent or temporary channel between a coastal lake or lagoon and the sea). remove material includes cause or allow material to be removed.

22B Permit required for excavation etc (1) A person must not: (a) make an excavation on, in or under protected land, or (b) remove material from protected land, or (c) do anything which obstructs, or detrimentally affects, the flow of protected waters, or which is likely to do so, unless the person is either authorised to do so by a permit under this Part and does so in accordance with any conditions to which the permit is subject, or is authorised to do so by the regulations. (2) A person who contravenes subsection (1) is guilty of an offence and is liable: (a) in the case of a corporation - to a penalty not exceeding 1,250 penalty units and, in the case of a continuing offence, to a further penalty not exceeding 600 penalty units for each day the offence continues, or (b) in the case of an individual - to a penalty not exceeding 600 penalty units and, in the case of a continuing offence, to a further penalty not exceeding 300 penalty units for each day the offence continues. (3) It is a defence to any proceedings against a person in respect of a contravention of subsection (1) for the person to establish: (a) that the commission of the offence was due to causes over which the person had no control and that the person took reasonable precautions and exercised due diligence to prevent the commission of the offence, or (b) in the case of proceedings for a contravention of subsection (1)(c), that the person could not reasonably have foreseen that the person's actions would result in, or in the likelihood of, the obstruction or detrimental effect concerned.

22C Grant etc of permit (1) Application for a permit is: (a) to be made to the Constructing Authority in the form approved by the Authority, and (b) to be accompanied by the fee determined by the Authority. … (3A) The issue of a permit in relation to integrated development within the meaning of section 91 of the Environmental Planning and Assessment Act 1979 is subject to Division 5 of Part 4 of that Act. … (5) The conditions subject to which a permit is granted under this section may include conditions relating to the protection of the environment. … 22L Appeal to the Land and Environment Court … (2) The lodging of an appeal does not, except to the extent that the Land and Environment Court otherwise directs in relation to the appeal, operate to stay action on the decision appealed against. (3) The Land and Environment Court is required, in carrying out its appeal functions under this section and in making any determination with respect to any such appeal, to take into account, and to have due regard to, the following matters: (a) any relevant policy that concerns the subject-matter of the appeal and that is brought to the attention of the Court, (b) any State-wide rivers and foreshores management objectives that are brought to the attention of the Court. (4) In this section, relevant policy means any governmental policy relating to the management, protection and enhancement of the State's rivers and foreshores. The Minister may certify, in writing, that a particular policy is, or was, a relevant policy in relation to a particular matter. The certificate is evidence of the relevant policy concerned.

The EP&A Act has as its objects (s 5): (a) to encourage - (i) The proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment; (ii) the promotion and co-ordination of the orderly and economic use and development of land; … (vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities and their habitats; and (vii) ecologically sustainable development, and (b) to promote the sharing of the responsibility for environmental planning between the different levels of government in the State; and (c) to provide increased opportunity for public involvement and participation in environmental planning and assessment.

The Act makes the following relevant provisions in respect of " integrated development ":

In this Division: approval means a consent, licence, permit, permission or any form of authorisation. approval body means a person who may grant an approval. … 91 What is "integrated development"? (1) Integrated development is development (not being complying development) that, in order for it to be carried out, requires development consent and one or more of the following approvals : Fisheries Management Act 1994 … s 205 permit to cut, remove, damage or destroy marine vegetation on public water land or an aquaculture lease, or on the foreshore of any such land or lease … Rivers and Foreshores Improvement Act 1948 Part 3A permit under Part 3A [emphasis added to s 91(1)]

91A Local development that is integrated development (1) This section applies to the determination of a development application for local development that is integrated development. (2) Before granting development consent to an application for consent to carry out the development, the consent authority must , in accordance with the regulations, obtain from each relevant approval body the general terms of any approval proposed to be granted by the approval body in relation to the development. Nothing in this section requires the consent authority to obtain the general terms of any such approval if the consent authority determines to refuse to grant development consent. (3) A consent granted by the consent authority must be consistent with the general terms of any approval proposed to be granted by the approval body in relation to the development and of which the consent authority is informed. For the purposes of this Part, the consent authority is taken to have power under this Act to impose any condition that the approval body could impose as a condition of its approval. (4) If the approval body informs the consent authority that it will not grant an approval that is required in order for the development to be lawfully carried out, the consent authority must refuse consent to the application. (5) If the approval body fails to inform the consent authority, in accordance with the regulations, whether or not it will grant the approval, or of the general terms of its approval: (a) the consent authority may determine the development application, and (b) if the consent authority determines the development application by granting consent: (i) the approval body cannot refuse to grant approval to an application for approval in respect of the development, and (ii) an approval granted by the approval body must not be inconsistent with the development consent, and (iii) section 93 applies to an approval so granted as if it were an approval the general terms of which had been provided to the consent authority, despite any other Act or law. (6) If a development application is determined, whether or not by the granting of development consent, the consent authority must notify all relevant approval bodies of the determination. [emphasis added to s 91A(2), (3), (4)]

Under the Environmental Planning & Assessment Regulation 1994, as made under the EP&A Act and subsequently amended, " Integrated development " is dealt with in Part 6 Div 3, and I note the provisions of cl 52A(1): Within 2 days after it receives a development application for integrated development, the consent authority: (a) must: (i) forward a copy of the application to the relevant approval body, and (ii) notify the approval body in writing of the date of receipt of the development application, and (b) if known at the time, notify the approval body in writing of the date of the relevant submission period if the application is to be publicly notified under section 79 or 79A of the Act.

Clause 53(1) provides: An approval body the general terms of whose approval have been sought may request the consent authority to give it any additional information about the proposed development that is essential to the proper consideration of its decision concerning the general terms of approval.

Clause 115 provides: A person is guilty of an offence if the person makes any statement, knowing it to be false or misleading in an important respect, in or in connection with any document lodged with a consent authority or council for the purposes of the Act or this Regulation.

The Water Administration Act 1986 established the Department of Water Resources (as it then was), constituted the Corporation, and defined its functions.

The objects of the Act are set out in s 4 and include:

The functions of the Corporation are set out in s 11 and include: (1A) In exercising its functions under this or any other Act or law, the Ministerial Corporation must have regard to the following matters: (a) the principles of ecologically sustainable development, … (c) the need to integrate the management of water resources with the management of other natural resources, … (f) the need to consider the cumulative impact of its decisions on water and water systems and related natural resources, …

Section 12 provides as follows: 12 Control of use and flow of water (1) The right to the use and flow, and to the control, of: (a) the water in rivers and lakes, … (c) water occurring naturally on the surface of the ground, and … is vested in the Ministerial Corporation … … (3) In the exercise of the right conferred by subsection (1) or of any other function, the Ministerial Corporation may take such measures as the Ministerial Corporation thinks fit for: (a) the conservation, replenishment and supply of water, …. (d) the protection of water from pollution and the improvement of its quality, (e) preventing any unauthorised interference with the flow or availability of water, (f) preventing any unauthorised obstruction of a river or any change of its course, (g) preventing the unauthorised erection or use of works, … (i) environmental protection.

The general principles to be applied to interlocutory relief

The principles governing the exercise of the court's power to grant an interlocutory injunction are best summarised in the frequently quoted judgment of Mason ACJ in the High Court's decision of Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148. His Honour said (at 153): In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.

His Honour noted (at 154): …the Court has been astute to ensure that any detriment to the public interest is avoided or diminished.

and (at 155): In arriving at a balance of convenience the Court will take into account the seriousness of the conduct enjoined by the statute and the damage to the public interest that may be caused by restraining its enforcement.

and again (at 156): In the ordinary course of affairs the courts should hesitate before interfering with the Executive Government's discretion to decide whether it should prosecute for offences against a statute, even a statute which is under constitutional challenge, more particularly when the statute is designed to protect and safeguard a recognisable public interest, such as the environment.

What is alleged to be at stake in these proceedings is the environment, and, it is suggested, a recognisable public interest broader than that of individuals or corporations.

Mr Tomasetti argued that there has already been environmental harm, but that he does not need to prove further environmental harm will flow from any refusal of the injunction he has sought. See North Sydney Municipal Council v Ekstein & Anor (1985) 54 LGRA 440 at 448 (Bignold AJ), and Associated Minerals Consolidated Limited & Anor v Wyong Shire Council [1974] 2NSWLR 681 at 692 (Privy Council). Both of these cases concern State bodies acting in the public interest. See also Warringah Shire Council v Sedevcic (1987) 63 LGRA 361 (at 365-366 per Kirby P, and at 371-2 per Mahoney JA).

As the learned Chief Judge of this court said in North Coast Environment Council v National Parks & Wildlife Service & Ors ("North Coast") [1999] NSWLEC 1 at par 11-12: 11. The Court's role in connection with an application for interlocutory relief is well-established. The Court is not concerned to decide the substantive case in favour of one party or another - that remains for the final hearing… 12. There are two questions which arise when deciding whether to grant interlocutory relief. The first is whether there is a serious question to be tried. The second is the balance of convenience, that is, whether the consequences of refusing interlocutory relief are outweighed by the consequences of granting it …

I now need to go into substantial detail about the voluminous factual material which has been placed before me at this interlocutory stage of these proceedings, in order to put all the current proceedings in some context, and then to decide, albeit with some urgency, what should now occur regarding this substantial project, and all of these proceedings.

In this case, we have some actions and decisions which enable work, some which constrict work, and some which require work to be done.

Both the Council and the Corporation have long-standing knowledge of this site. Correspondence between them dating back at least to August 1998 (see Exhibit S2 ) - and it would seem probably earlier - indicates dialogue regarding what would need to be done in respect of the site and its sensitive surroundings.

Exhibit S2 concerned " DA 161/98, Proposed Landfill, 83 Derby Street, …" and, inter alia, indicated the intention of the then current proponent of development (which Exhibit W3 p 9 identifies as BP) to have: an Erosion and Sediment Control Plan prepared for the site prior to the works commencing. Due to the sensitive nature of the potentially adversely impacted areas, i.e. wetlands. The Department wishes to review this plan, before it is implemented",

This letter was over the name of Greg Brady, the " Environmental Review Co-ordinator " in the Corporation's regional office.

The evidence indicates that on-site meetings occurred between the Council and the companies, and between the Corporation and the companies, prior to the lodgement of the relevant development application (" DA ") on 9 December 1998. There is evidence also of a multi-representative meeting on site at least on 2 December 1998.

The relevant DA was accompanied by a Statement of Environmental Effects to which was appended (see Grose affidavit par 16): …a specialist Environmental Assessment by Dames & Moore Pty Ltd which advised that the '…contractor engaged by Trafalgar to undertake the civil works will develop a Stormwater Management Plan ('SMP') for the construction phase and will submit it to Council for approval prior to the commencement of construction. The SMP will contain measures to protect the stormwater system and, in particular, Duck River and the adjacent wetlands from pollution … Stormwater protection measures may include diversion drains, protective bunds, silt fences, sediment traps, etc., as necessary and appropriate. Trafalgar… will liaise with the Department of Land and Water Conservation with respect to their requirements concerning earthworks carried out within 40m of tidal waters in connection with this development. Any requirements specified in a permit issued under Part 3A of the Rivers and Foreshores Improvement Act will be implemented… the final surface contour plan will minimise grades wherever possible … drainage and sediment control works will be implemented as a first step … stormwater will be directed away from the salt marsh and mangrove vegetation. Controls will include the construction of swales, contour drains and or drainage pipes'.

The DA form had the " no " box ticked in respect of the " integrated development " question (see doc 1.2 of Exhibit W1 ), yet " the finished levels in the subdivision are considerably higher than the … existing levels of the land ", thereby, the Corporation submits, enlivening Part 3A of the Rivers Act.

Both Council and the companies obtained and accepted legal advice on that question of characterisation, ie. whether or not the proposal was " integrated development ", and, although both sides concluded it was not, the Council referred the DA to the Corporation for comment, in any event, on 8 January 1999.

On 14 January 1999 Brady made clear to Williams that the Corporation " had a policy to require a 'riparian vegetation zone' adjacent to the river ", and Williams then met Grose, Bourne and Brady on site on 3 February 1999, and " they confirmed … requiring a setback for developments so that " such a zone could be provided.

The Corporation responded to the DA on 3 March 1999 (see Exhibit W6 , and document 5.1 in Exhibit W1 ), refuting the contention in the Statement of Environmental Effects that the proposal did " not constitute 'integrated development' as a permit under part 3A … is not required ….", and providing comments " to assist Council in assessing this matter ".

The letter went on to comment: Should the DA remain unchanged it will be regarded as 'integrated', and the appropriate notification together with the appropriate fee should be sent to the Department.

It should also be noted that any future development on the site, if involving any excavation, or any obstruction or detrimental affect on the flow of waters, actual or likely, to the wetland/saltmarsh, is likely to require a 3A Permit issued under the R&FI Act. Such a permit, if issued, would have conditions attached relating to the protection of the environment.

When assessing developments which require a Part 3A permit, the Department will consider whether the proposal is consistent with State Government policy and allows for the protection and enhancement of the aquatic/riparian environment. The Department is unlikely to issue a Part 3A Permit for works not consistent with this policy.

The Department does not consider the proposed construction of a security fence along the northern boundary of the lots is an adequate safeguard to protect the adjacent significant wetland. The estuarine plant communities are ecologically important and are known to be sensitive to changes in water quality, and because of this, the proposed placement of backfill and the timber retaining wall are not to extend beyond the existing fence line.

In accordance with Condition 17 for DA 161/98 a minimum 20 metre setback is to be provided between the proposed building zone and the wetland/north-eastern boundary fence line. Within this 20 metre setback, it is recommended that there will be plantings of local native trees, shrubs and groundcover species which are appropriate to the site. The proposed removal of weeds from the northern boundary is supported.

It is noted that a portion of Lot 131 may be traversed by the Duck River Accessway (page 19). It is recommended that the accessway is located along the outer edge of the 20 metre buffer, furthest from the wetland/saltmarsh.

The Department also recommends that a vegetated buffer zone of minimum 30 metres width (measured horizontally from the top of the bank) is maintained adjacent to Duck River on the north western side of the site and that it is planted with a diversity of local native species. It is also recommended that the proposed cycleway along the eastern foreshore of Duck River is located on the outer edge (furthest from the river) of this buffer.

The Department also requires a minimum 10 metre wide vegetated buffer zone (measured horizontally from the top of the bank) on either side of the mangrove lined channel on the south-eastern side of the subject land.

The SEE notes that the subdivision will require the preparation of a Soil and Water Management Plan (SWMP) which will be submitted to Council for approval. The Department requests that a copy of the SWMP is also forwarded to the address below.

I trust that the above comments are useful. Should you have any questions, please contact the Department's Environmental Review Co-ordinator on telephone number (02) 9895 7441.

Trafalgar's solicitor commented on 9 March 1999, in respect of Council's legal advice on the " integrated development " issue (Annexure " D " Williams' affidavit 28 February 2000): They appear to not have been informed that you have hydrological advice, which is not disputed by the Council, that the works proposed will have no effect on the flow of the river, at times of heavy rainfall or otherwise.

Had the solicitors been informed of these matters, I think they would not have concluded as they do … that the development comes within the provisions of section 22B(1)(c) of the[Rivers] Act.

The Corporation anticipated correctly that the proponent might amend its development application to escape classification as " integrated development " and all that such a classification would entail. (I make no criticism of this in itself). Further legal advice was obtained, then amendments to the DA were settled upon, and advised to the Council (doc 5.2 of Exhibit W1 ) on 26 March 1999. They were sent by Williams to Bourne on 1 April 1999 " further to our on-site discussions ", on the basis that the amendments were " made to overcome your concerns regarding the saltmarsh".

However, on the same day (1 April 1999) the then solicitors for Trafalgar (Minter Ellison) in the company's then pending but expedited Class 1 appeal against the deemed refusal of DA 503/98, (due then to be heard 21-24 May 1999), wrote to Kesby of the Corporation, more or less challenging the Corporation to seek leave to intervene in those proceedings.

Council conceded on 12 April 1999 that the amended DA was not " integrated development ".

Williams gave evidence that, by the time the Council considered the DA (as amended), the company proposed no excavation within the " protected lands ", except for that involving sewerage lines. I should comment at this point that in his affidavits, Williams takes a very " narrow " view of what is embraced by the word " excavation " (particularly when compared with the actual provisions of the Rivers Act quoted above). He does not seem to believe that one may be excavating if one lays pipes in fill, nor that excavation is involved in the laying of rocks on the land to protect the land from scouring.

The Corporation's letter of 14 April 1999, in reply to the letter from Minter Ellison dated 1 April 1999, has been relied upon during argument, by the companies, as a concession by the Corporation, and it, therefore, should be set out in full (Annexure " F " Williams' affidavit 28 February 2000): Thank you for your letter of 1 April 1999 concerning the above proposal and pending hearings in the Land and Environment Court.

With respect to works proposed under the original DA 503/98, advice previously provided was that a permit would be required under the provisions of the Rivers and Foreshores Improvement Act (1948). If Trafalgar Corporate has since amended its proposal such that activities described in Section 22B (1) of the Act are no longer to be undertaken, a permit issued under Part 3A of the Act will not be required.

Please be advised however, that any future proposals on the site involving Section 22B (1) activities will require a Part 3A Permit.

If you have any further questions in relation to the issues raised please do not hesitate to contact me on 42268522. Yours sincerely Noel Kesby Manager, Resource Assessment and Planning Sydney South Coast Region

On 20 April 1999, Bourne sent a memo ( Exhibit S1 ) to Axel Tennie (whose position is not disclosed in the evidence), in which he said, inter alia, regarding the DA: Issue: Trafalgar Corporate are seeking to subdivide the subject site with minimal riparian zones between the development and three water bodies, being, Duck River, a regionally significant saltmarsh/wetland and a mangrove lined channel. Background: The subject proposal is the third recently applying to the site. The others were for site remediation and site filling.

The subject proposal, whilst in the Department's view required a permit issued under Part 3A of the Rivers and Foreshores Improvement Act 1948 (R&FI Act) and therefore was 'integrated development', the DA was not classed as 'integrated' by the consent authority, being Auburn Council.

Various discussions and correspondence followed, with the Department providing strong support for the inclusion of adequate riparian zones adjacent to the three water bodies.

The proponent modified the development to significantly reduce the likelihood of the need for a 3A permit, as a means to avoid the environmental protection conditions (riparian zones) that the acquisition of a 3A permit would incur. It is likely, but not definite, that a 3A permit may still be required for the proposal, in relation to drainage issues. The Department's legal officer has advised that the conditions on any 3A permit for the site would need to be relevant to the activities that the permit was intended for, to stand up in court. Current situation: Although the DA proposed minimal riparian zones adjacent to the three water bodies, at a meeting on Tuesday 20 April 1999 between DLWC officers and Council (and its legal officer) Council advised that it would be opting to include a condition of consent for a management plan that requires riparian vegetation. The matter was intended to be put to Council on the evening of 21 April. It is a concern that the proponent will argue strongly against the proposed condition, and may be successful. ….

Council proceeded to grant the development consent (" DC "503/98), on conditions (see doc 1.3 of Exhibit W1 ), and to take effect on 27 April 1999. Included in the conditions was a deferred commencement condition requiring certification of the remediation works which had been carried out.

The other conditions of the consent are important to these proceedings and the following of them are set out, (mostly without explanatory notes or " reason s"), as particularly relevant to the subject matter of these proceedings: 1. Approved Plans The development is to be carried out in accordance with the approved documentation prepared by JBA & Berkhart [sic] titled 'Subdivision into 31 Lots - BP Auburn Terminal, Silverwater' dated December 1998 and the approved stamped plans prepared by Rose Consulting Group numbered No. 54-104-B (Dick No: 54104Y01012) dated February 1999, and mitigation measures proposed by Dames and Moore except as otherwise provided by the conditions of this determination (Note:- modifications to the approved plans will require the lodgment and consideration by Council of a modification pursuant to Section 96 of the Environmental Planning and Assessment Act). 2. That the plan of subdivision shall be modified to indicate a 30 metre foreshore building line to lots adjacent to Duck River. 3. That the applicant shall submit a management plan aimed at developing an appropriate strategy to protect the important mangrove/saltmarsh wetland eco system located within residual Lot 131 and adjacent to the land generally, including as a primary objective the restoration of sustainable riparian vegetation communities, particularly as they relate to the boundary between the proposed industrial lots 107 to 114 and residual Lot 131, either side of the mangrove line channel on the south-eastern side of the subject land and the north-western side of the subject land adjacent to the Duck River. Such a plan shall be submitted for the approval of the Director, Service Planning, Auburn Council and the Manager, Resource Assessment and Planning - Sydney South Coast Region of the Department of Land and Water Conservation prior to the release of any linen subdivision plans and shall demonstrate a similar environmental outcome to that of the riparian zones recommended by the Department of Land and Water Conservation. As part of the management plan the applicant shall provide full details of the proposed new security fence. … 6. Approval required prior to the issue of construction certificate The following documentation is to be submitted to Council or the accredited certifier, prior to the granting of the construction certificate: (a) detailed engineering plans and specifications relating to the subdivision work. (b) detailed soil erosion and sedimentation control plan that includes details of revegetation of disturbed ground. … 19. Submission of full stormwater disposal details Prior to the issue of a subdivision certificate, full stormwater drainage details showing the proposed method of stormwater collection and disposal are to be submitted to Council. … Receipt of such submission does not imply automatic approval. In the event that amplification of the existing or provision of new drainage lines is required, the applicant shall bear the cost of the provision of such facility and all works outside the property boundary. 20. Inter Lot drainage system The proposed inter lot drainage systems shall be in accordance with the plan 54-104-A dated March 1999 prepared by the Rose Consulting Group. All the construction of pits and pipes shall be in accordance with Council's standards and specifications. All associated costs are to be borne by the applicant. … 23. Capacity of the existing trunk drainage The capacity of the existing trunk drainage channel adjacent to the eastern boundary of the subject property shall be analysed for 1 in 20 year storm event and for the additional inflow from the proposed new line adjacent to Derby Street and the other inlets from the proposed easements. Any necessary amplification shall be carried out at the expense of the applicant. Environmental considerations shall be given to this amplification. 24. Drainage easement A 5.0m wide drainage easement shall be created adjacent to the eastern boundary of the subject property for possible future amplification and de-channelisation of the drainage channel. Such easement and appropriate 88B instrument shall be registered with the land titles office prior to the issue of the subdivision certificate. All associated costs are to be borne by the applicant. 25. Deviation of existing trunk drainage at lot 129 and 130 A detailed flood study of the proposed deviation shall be submitted to the Council analysing the flood impact on upstream properties. 26. Overflow route A depression shall be formed over the full width and length of the drainage easement to provide a stormwater escape route. The escape route shall be designed to have capacity to carry the difference between a 1 in 100 year overflow and the flow and the flow (sic) in the pipe. … 29. Sedimentation control and site management plan An Erosion and Sediment Control and Site Management Plan shall be submitted to Council in conjunction with the Construction Certificate. The plan shall be in accordance with 'Managing Urban Water' 3rd edition August 1998 published by Department of Housing.

Prior to the commencement of site works, all the measures detailed in the erosion and sediment control and site management plan shall be implemented on the site to assure sedimentation control occurs during the construction phase of the project. Reason: 1. To ensure the submission of Erosion and Sediment Control and Site Management Plan and the proposal is implemented to avoid pollution of the various waterways and drainage systems. 2. To minimise soil erosion and control sediment leaving the site during construction and to prevent a detrimental impact on the aquatic environment. … 32. There is to be no excavation or removal of material on any land that forms part of the development application which is within 40.0m from the top of the bank or shore of Duck River. There shall be nothing done which will obstruct or detrimentally affect the flow of Duck River on this land. 33. The 5.0m easement for public access is to be located within the 15.0m setback to the Duck River to Council's satisfaction such easement to be set down under an 88B Instrument and shall be registered with the Lands Titles Office prior to issue of the subdivision certificate. All associated costs to be borne by the applicant. 34. A 3.0m wide easement for public access is to be provided at the northern edge of Lots 107 to 114. 35. The existing rubbles located adjacent to the fence line are to be retained. The northern boundaries of Lots 107-114 are to be altered on the final plan of subdivision to the correct location of the existing fence line. There will be no excavation or filling work undertaken along this northern boundary.

In the context of the EP&A Act's integrated development requirements, it is relevant to note at this point that at no time did the Council seek the " general terms of any approval " of the Corporation, or of NSW Fisheries.

On 7 July 1999 consultants acting for Trafalgar submitted a " s 96 (modification of consent) application " (docs 7 and 8 of Exhibit W1 ) seeking to delete from condition 3, and to amend condition 1, of the consent, with the result that:

(a) there would be a reduction in the number of lots from 31 to 28; and (b) the latter part of condition 1 would be amended to read as follows: "… mitigation measures proposed by Dames and Moore, and the Management Plan prepared by CH2M Hill dated July 1999, except as otherwise provided by the conditions of this determination …" [emphasis added to show what words the application proposed should be added to condition 1].

That CH2M Hill " plan " dated July 1999 was tendered in evidence as Exhibit W3 . It is a comprehensive document, to which I will refer at some length later in this judgment.

The s 96 application gave as the companies' reasons for seeking the deletion of condition 3 entirely : It is proposed to delete condition 3 because: · the condition results in an unacceptable level of uncertainty, particularly as it requires a further consent from a third party; and · the matters referred to in condition 3 have been fully addressed in the Management Plan by CH2M Hill. The Management Plan will provide certainty and is submitted for Council's consideration as part of this s.96 application. Condition 3 is therefore effectively superceded [sic] by the Management Plan itself. The proposed amendments to Condition 1 reflects this. Condition 1 is to be amended to: · recognise the Management Plan; and · to correct the plan reference numbers and the number of approved lots (28 not 31 as indicated).

The application later says: (b) Likely impacts of the proposed development and the suitability of the site for that development The Management Plan is consistent with condition 3 of the consent. It specifically addresses environmental management issues designed to protect the mangrove and saltmarsh wetlands on or adjacent to the site. Granting consent to the Management Plan will ensure these areas are protected appropriately. The measures proposed in the Management Plan are beneficial to the environment. … (d) … A submission was also received from the Department of Land and Water Conservation which raised a number of matters regarding management of the riparian zone, including the issue of the security fence. Arising from that submission was a recommendation (adopted by the Council in the form of condition 3) that there be a management plan prepared for this area. The CH2M Hill Management Plan addresses those matters raised by the Department.

On the s 96 application form (doc 8 of Exhibit W1 ), once again the " no " box was ticked in response to the " integrated development " question.

In support of the s 96 application the company sent the Council the CH2M Hill plan ( Exhibit W3 ), obviously to underpin the proposed deletion of condition 3.The proposals within the plan for the protection of the wetland clearly included works within " protected lands".

Williams met Bourne and Grose again, on site, on 29 July 1999, " to discuss the proposed drainage arrangements for the development proposal ". Williams says at par 15 of his affidavit of 28 February 2000 (filed in proceedings 40033): … The approved drainage plan involved laying the storm water pipes from the subdivision to the River north of the site and to the existing stormwater channel east of the site at existing ground level and back-filling over the top of the pipes.

There is some dispute in the evidence as to which side of the negotiation suggested a change in the proposed drainage arrangements, but what emerged from the negotiation was a proposal to " excavate " part of the site (including protected lands) in order to lower the levels, work which all agreed would require a Part 3A permit.

Bourne advised Williams at that time that the Corporation would impose conditions requiring rehabilitation of any disturbed area, and that the company would need NSW Fisheries' approval to remove any mangroves.

The Fisheries approval was promptly sought and obtained by the companies, during September 1999, but the Part 3A permit was not sought from the Corporation until after the Council had determined the s 96 application.

In that regard, the company had lodged an appeal in this court against the deemed refusal of that application and, on 21 September 1999, that matter was set down for hearing in December 1999.

The Council had sought the Corporation's comment on the modification application, and on 5 August 1999 (doc 10, Exhibit W1 ) the Regional Manager Resource Planning, Giselle Howard, had written to the Council in the following terms: Thank you for your letter dated 18 July 1999, seeking the Department's comment on the requested modification of conditions. The Department has reviewed the document and the following comments are provided for your information.

In previous correspondence to Council on this matter, the Department has indicated its position regarding the proposed development, and in particular, the riparian zone recommendations, and has explained the reasons for these recommendations.

On 8 June 1999, the Department met with CH2MHILL consultants and relayed this information to them in detail for inclusion in the Management Plan. The Management Plan, as submitted, falls far short of the Department's requirements. Accordingly, the Department does not agree to the proposed additional wording amendment of Condition 1, nor to the deletion of Condition 3 of the current development consent.

On 29 July 1999, DLWC officers met with Trafalgar to discuss drainage options for the site. It appears that excavations on 'protected land' may be necessary, hence the need for a permit issued under Part 3A of the Rivers and Foreshores Improvement Act 1948 will be triggered. Any such permit will contain conditions that are consistent with the Departments previously stated position in regard to the riparian zone and the protection of the environment at the site.

The Department would like to work with Council and the proponent to progress an outcome which reasonably satisfies the economic imperatives associated with developing the site and at the same time is in concert with government policy in regard to the important environmental attributes and potential of the area.

I trust the above comments are useful. Could you please direct any questions or correspondence to Greg Brady, Environmental Review Co-ordinator, phone contact (02) 9895 7441.

Williams deposes (in par 19 of his affidavit of 28 February 2000) that Council relented in its opposition to the s 96 application when and/or because the Corporation " refused " to provide evidence in support of Council's case in that appeal. Mr Tomasetti, Counsel for the Corporation, denies this allegation, but it does not have as much significance to my consideration of the question of interlocutory relief as Dr Flick SC, Counsel for the companies, would submit.

In any event, some amendments were made to the s 96 application, on about 26 October 1999, allegedly to " pick up " on the Corporation's advice, and Council resolved on 3 November 1999 to approve the modification. The relevant notice of determination was issued on 10 November 1999 (document 9, Exhibit W1 ).

It must be noted that no amendment at all was made to condition 1 , even though the notice of determination describes the development as " subdivision into 27 Torrens Title lots and residual lot (unnumbered) ".

However, condition 3 was deleted in its entirety , and replaced with the following (again omitting " reasons ", " notes ", etc): (a) the applicant shall, on an ongoing basis, remove weeds and/or spray weeds with an appropriate herbicide in the riparian zone and shall put in place appropriate methods for the suppression of weeds (such as placement of secured weedmats or other mulch which would remain in place and not be washed away during large storm events). (b) the applicant shall plant successional species (Casuarina and Melaleuca) within the 15 metre riparian setback from the river consistent with the visual character of the opposite bank, on the Shell site. (c) the applicant will ensure that the ridge located within Lot 131 and the rubble retaining wall are both retained to ensure adequate redirection of water to the swale drain. (d) the applicant shall maintain the ridge within the riparian zone (to the east of the saltmarsh) which controls the spread of mangroves westwards across the saltmarsh. (e) the applicant shall provide security fencing to restrict public access to the saltmarsh in the riparian zone. (f) the drainage works for this development shall be undertaken in accordance with the approved plans of subdivision. (g) the applicant shall construct a swale drain along the northern boundary of the site.

It is arguable that the Management Plan, in consequence of this outcome, has no real nexus with the consent.

Silverwater eventually lodged the Part 3A application on 25 January 2000 (doc 11, Exhibit W1 ) and said, inter alia, in support of it: Although it was originally intended that the stormwater drain be laid on the existing surface levels and fill placed over the top of the drainage system, following discussions with Mr Paul Bourne it was requested that we consider lowering the pipe outlet into Duck River and stormwater drain down to the water invert level to improve the aesthetic value and minimise the impact of any discharge into the River and stormwater system. We have acted upon this advice and amended our proposed drainage system accordingly.

It is proposed that minimal disturbance be undertaken at the outlet point into the River and the stormwater drain and any disturbance to the surrounding vegetation will be rehabilitated.

Many works were particularised for locations on the subject site within the protected lands .

Williams, Bourne and others discussed the part 3A application, on site, on 21 February 2000. Bourne desposes that he observed, during that site inspection, what he describes in his affidavit as " excavations " within what he believed (with good reason, it would appear from his oral evidence), to be protected lands. He took the photographs which appear at doc 11 of Exhibit W1 on that occasion.

In his conversations with Williams, Bourne foreshadowed the issue of the Part 3A permit, but on the following " inflexible " conditions (as recorded in par 28 of Williams' affidavit of 28 February 2000): (a) a ten metre setback for a riparian zone from the top of bank of the stormwater drain, twenty metres along the Northern boundary and thirty metres along the Duck River boundary (b) a corridor width of five metres either side of the centre of the proposed drains.

Williams' affidavit goes on to say, regarding the site visit: 29. We then walked to the Northern boundary to discuss the proposed sewer works. I explained to Mr Bourne that it was proposed that the sewer works be carried out by excavation of a pit 5 metres square into which thrust boring equipment would be lowered. There would then be drilled horizontally a sewer line through to the existing sewer main thus resulting in minimal or no disturbance. In fact there would be no disturbance to the sensitive areas of the mangroves or the storm water drain. Mr Bourne stated that regardless of the fact that there was no ground excavation apart from the pit to establish the thrust boring point, he would none the less require a twenty metre set back along the Northern boundary parallel with the proposed sewer line consistent with the Respondent's desire to establish a twenty metre wide riparian zone. … 31. The Applicant cannot lodge with the Land Titles Office for registration the plan of subdivision until the Council provides a Subdivision Certificate which I am informed it will not do until Sydney Water certifies that it is satisfied as to the provision of sewer and water to the subdivision. Sydney Water requires that there be reticulation of sewer through the subdivision and has approved the Sewer Plan. However the construction of the sewer cannot be completed until the Part 3A Permit issues. Further it is my understanding that the Council will also require completion of the drainage works prior to issuing a Subdivision Certificate.

Following that site visit submissions were made, to Bourne, on behalf of the companies, in two letters dated 23 February 2000 (the earlier one is Exhibit W10 , and the later one doc 13.1 in Exhibit W1 ). Legal proceedings are foreshadowed in that letter, both to compel Bourne to issue the permit, and also to challenge the conditions he had foreshadowed. The letter gave him some 48 hours or so to issue the permit without such conditions , and, in the event, the proceedings (40033) were indeed commenced on 28 February 2000 (doc 13.2 of Exhibit W1 ).

The permit was issued by the Corporation on 10 March 2000 (doc 17 of Exhibit W1 ), on conditions which require a Vegetation Management Plan (" VMP "). No such VMP is yet in existence.

Meanwhile, Bourne, Grose, Williams and others had conducted yet another site inspection on 1 March 2000 (in respect of which see file note at doc 14 of Exhibit W1 , and departmental report at doc 15 of Exhibit W1 ). Document 15 was forwarded by the Catchment Manager of the Sydney Metropolitan Office of the Corporation, Owen Graham, to Bourne, with the following comment (doc 16 of Exhibit W1 ): … after a brief inspection of the subject site today, it is clear that there is a high probability that there may be some release of turbid water and sediment through the perimeter boundary towards the estuary if there is a heavy and/or prolonged rain period….

Bourne testified during the hearing to feeling pressured and " anxious " about the Part 3A permit application (see par 12 of his affidavit), as a result of the correspondence dated 23 February, and the subsequent commencement of matter 40033. He says he issued the permit on 10 March, but had not fully considered all aspects of the matter, as he did not have before him an appropriate plan. Such a plan was provided by Silverwater only on 15 March 2000 (par 13).

The Part 3A permit of 10 March 2000 (doc 17 of Exhibit W1 ) allows Silverwater " to construct drains, a sewer line, and to carry out sediment erosion and site restoration" on the subject land.

The permit was accompanied by an explanatory letter from Bourne of the same date. That letter drew particular attention to conditions 4, 5, 10, 11, 12, and 19-24, and goes on to say: I draw your attention to permit condition 26, and condition 32 of the Development Consent. It will be necessary for you to obtain permission from Council to carry out the subject works, as they will involve excavations on, and removal of material from, land that is within 40 metres of the top of the bank or shore of Duck River.

I have provided preliminary advice to you regarding preparation of the Vegetation Management Plan. Please have your consultant contact me as soon as possible so that the document can be finalised without delay.

During inspections of the site on 21 February and 1 March 2000 it was noted that excavations had been carried out on protected land (under the R&FI Act) without a permit, and that sediment and erosion control measures were inadequate and inconsistent with those described in the Soil and Water Management Plan for the site. Also, there are serious concerns relating to the placement and nature of fill material at the site. These issues will be addressed in due course in separate correspondence to you, rather than delay or complicate the issuing of the subject permit.

In relation to the protection and enhancement of riparian areas in the Duck River catchment, please be assured that the Department is being consistent in its approach to this issue with regard to this site and other sites in the area.

There are in fact thirty conditions in all, including the VMP requirement, and the appeal in 10250 is against : 1. References to a 'Vegetation Management Plan' in clauses 5, 9 and 10. 2. Clauses 19, 20, 21, 22, 23, 24 and 25. 3. Clause 26.

Conditions 19-25 comprise the whole " Site Rehabilitation " section of the permit. Most of them refer to the required VMP. (Clause 26 prescribes a permit breach " inspection fee " of $500 per " inspection until the breach has been rectified ").

The crucial dates in this case emerge as 10-11 March 2000.

In a " fax " addressed to Grose, but possibly only left on her desk, dated 11 March 2000 (doc 18 of Exhibit W1 ), Bourne advised of his intention to send copies of the permit and the above letter of 10 March to the Council. He suggested that Grose contact Council Town Planner Harley Pearman, and added: PS There are some urgent emergency works needed at the site - these are being implemented.

Pearman had, in fact, " faxed " Bourne on 7 March 2000 in the following terms ( Exhibit W7 ): Please be advised that Michael Forwood and myself inspected the site between 11am and 12.30pm and took numerous photos. Council will need to prepare a notice under the POEO regarding issues soil (sic) and sedimentation issues.

Furthermore, an appropriate Order (Which will be prepared) will need to be issued for breach of development consent. There appears to be conditions in the consent that have not been complied with and it appears that a sediment and erosion control plan has not been submitted for approval.

Bourne deposes (par 10) that, on 7 March 2000, prior to the fax in Exhibit W7 , he had spoken to Pearman to the following effect: 'In view of the rainy conditions and the area of disturbance at the Silverwater site and in the absence of approved sediment controls, it is advisable that the site be checked to make sure that the very sensitive environments of the area are not being polluted'.

Also with the " fax " to Grose was a copy of a fax of 11 March 2000 to Williams, referring to a telephone discussion the previous evening (10 March), in the following terms: Subject: Council notice - 83 Derby Street Silverwater Braith, Further to our telephone conversation yesterday evening re the above the following comments are provided to assist you in complying with DLWC legislation.

It is vital that any urgent action that is needed to protect the environment is taken without delay, in line with Council's Notice.

If you, and your consultants, can identify what needs to be done urgently, and what can wait (but needs to be done soon) then do the urgent tasks on the assumption that you have an approved 3A permit to do so.

The conditions on the 3A permit faxed to you last night (for other works at the site) will help guide you as to practices acceptable to DLWC.

I have attached a 3A application form hereto. You should immediately fill it out and fax it to Janne Grose (fax 9895 6255). It should describe any works urgently needed to protect the environment, all works needed to comply with the sediment and erosion control conditions included in the Development Consent, all works necessary to comply with the Soil and Water Management Plan (dwg. 54-104-01, sheet 01) and any works required under the Council Notice, and any other works on 'protected land' that qualify for a 3A permit.

Send the original of the 3A application by courier, together with a cheque for $1000, to Janne Grose at Parramatta (courier to go to level 9). I shall be in Parramatta around mid-day (after a site inspection) on Tuesday 14th.

By working together quickly Braith, I believe we can achieve a satisfactory outcome at this site….

On 10 March 2000, Williams told Bourne he had " received a notice from the Council to fix sedimentation problems " within timeframes. Bourne (par 11) told him that " If it is necessary to act urgently to protect the environment " the Corporation should be informed, and the company should " then do only what is required to protect the environment. A 3A permit application is to be submitted to complete the works and it is expected … the permit will attract riparian zone conditions as advised in the past".

On 13 March 2000, Trafalgar sent the Corporation another Part 3A application, regarding works which " were carried out over the weekend and will be completed over the next couple of days ", as required by Council in its " Direction to Take Clean-up Action " dated 10 March 2000 ( Exhibit W4 ). The notice/direction which referred to the " owners " as " persons reasonably suspected of having caused the pollution incident ", and followed the Council inspection " on 7 March 2000 in wet weather ", which " disclosed that fill material and sediments were being washed into " the mangrove channel, new stormwater inlet chambers, the river, and the saltmarsh area.

In his covering letter (doc 19, Exhibit W1 ) of 13 March 2000, Williams said: Please be assured that only measures deemed necessary by our consultants and contractor have been undertaken.

In his affidavit of 11 April 2000 (par 25), Williams says that he told Bourne on 11 March what the engineers had ordered during a site visit, and Bourne said to him: Basically you can go ahead and do the emergency works you and your consultants deem necessary to protect the environment on the basis that you have a permit and provide us with the details on Monday with an application form.

(Bourne acknowledged this conversation in his oral evidence, even though it is not mentioned in his affidavit).

On 15 March 2000, Williams sent a further letter to the Corporation regarding the Part 3A application (doc 20 of Exhibit W1 ). The Part 3A application (in documents 19 and 20) describes the works required as: 1. Dig-in silt fences up to 300mm below existing surface level. 2. Remove any sedimentation and material from ground surfaces outside silt fences (relevantly minor amounts). 3. Excavate settlement ponds where indicated on plans (see attached). 4. Excavate surface trenches to divert surface run-off into settlement ponds.

The Part 3A application made on 13/15 March has not yet been approved.

On 13 March 2000, Council had sent a further notice to Silverwater indicating it proposed serving an " Order 15 under s 121B " of the EP&A Act regarding failure to comply with conditions 15, 16, the CH2M Hill Management plan, and the requirement for a sediment basin on lots 106 and 114. Detailed particulars of the work required were provided (see Annexure " F " to Williams Affidavit of 11 April).

Williams says of this notice (par 27, affidavit 11 April): … Compliance with this order is problematic because until the drains are constructed, earthworks cannot be completed and the surface cannot be completely stabilised by placement of topsoil. These works cannot be completed because the Part 3A Permit currently held by the Company is in dispute and will be resolved by this Court on 8 and 9 May 2000.

On 17 March 2000 the Corporation issued to Silverwater a Remedial Notice pursuant to s 22G of the Rivers Act ( Exhibit S3 ), arising out of the inspection on 21 February 2000, as a result of which the Corporation said it was: … satisfied that you have: A. made an excavation on, in or under protected land in contravention of section 22B; B. removed material from protected land in contravention of section 22B; …

Williams makes no mention of this 17 March notice in any of his affidavits, and his company's Counsel says that he personally became aware of it only on about 13 April 2000.

On 22 March 2000, Council gave Silverwater notice of its proposal to issue an " Order 17 under s 121B " regarding failures to comply with condition 29 of the consent. Again detailed particulars of the work required were provided (see Annexure " A " to Williams affidavit of 12 April 2000).

On 3 April 2000 Council issued to Silverwater a " Directions to Take Preventative Action " under s 96 of the Protection of the Environment Operations Act 1997 (see Annexure " A " to Forwood affidavit), following inspections on 22 and 23 March 2000 " in wet and dry weather respectively " which " disclosed that fill material and sediments had been washed into " the mangrove channel on the eastern boundary at the north-east corner, the river, and the mud flat area west of the salt marsh. Again, works directed to be done were specified in detail.

For completeness I should add a few words about sewerage arrangements for this site .

Sewerage works on this site are subject to " Compliance Certificate " procedures administered by Sydney Water (see " Notice of Requirements " given on 19 November 1999 to Rose Consulting Group - Exhibit S4 ) to which company officials have agreed in writing.

Sewerage plans were provided to the Corporation by Silverwater on about 28 January 2000 (doc 6 of Exhibit W1 ) and then on or about 29 March 2000 (see Grose affidavit pars 31-36, and Exhibit W11 ).

Those plans indicate quite clearly that both sewerage and drainage works were proposed for protected lands.

Following whatever works were done by BP, works worth approximately $1.5M were proposed by Silverwater in its DA, and are covered by the development consent.

Williams says (par 2 of his affidavit of 12 April 2000) that the works carried out to date by or on behalf of the companies are: (a) stormwater works for Stage 1; (b) water and sewer works for Stage 1; (c) electrical and telecommunication for Stages 1 and 2; (d) stormwater and sewer works for Stage 2, except within the Protected Zone; (e) road information; and (f) filling (almost completed).

He says that those works are worth approximately $1.2M.

Following the Council " Clean Up " notice of 10 March 2000, the following works were commenced on an emergency basis on 11 March 2000 (par 5 affidavit of 12 April 2000): (a) Excavation of sedimentation ponds; (b) Re-compaction of fill batters; (c) Swale drains; (d) Digging in sediment control fencing; (e) Installation of additional silt fencing; (f) Installation and replacement of hay bales; (g) Removal of sediment outside the silt fence; and (h) Cleaning sediment out of swale drains along the silt fence.

Forwood testified that to his observation those works required by Council in that notice have been completed. What he observed in the photos in Exhibit W8 was consistent with what Council required.

Williams swears that Silverwater has not authorised any work in the protected lands except the above emergency works which were carried out in compliance with the Council notice (see pars 7 and 8, affidavit of 12 April 2000), and that Silverwater " does not propose to authorise any of the works set out in the [Part 3A application] lodged on 25 January 2000, or any other works in the Protected Zone, until such works are authorised under a valid permit ".

He says that the works Bourne concluded in his oral evidence had been carried out between 1 March and 11 April 2000 were " works carried out in compliance with the Clean Up Notice issued by Auburn Council, and for which we had obtained verbal authorisation from Paul Bourne ".

In his affidavit of 11 April 2000 Williams says of the events which occurred on 10-11 March 2000 (par 24): … The circumstances at the time were that heavy rain had been falling for some days and because the site had been filled, but not top dressed, the fill was in a position where heavy rain would affect it. The site is in a position whereby the subdivision works are almost complete, including road formation. However, roads cannot be completely sealed and drainage works cannot be completed until the works specified in the Part 3A Permit are undertaken. Those works cannot be undertaken because there is an issue between the Company and DLWC as to the Vegetation Management Plan required thereunder and particularly related to the setbacks that are being required by DLWC. That issue will be resolved at the hearing of proceedings no. 10250 of 2000 on 8 and 9 May 2000.

In that same affidavit Williams notes that " 39,000 cubic metres of fill has been imported to the site and compacted to achieve the approved final levels …" (par 3) and there have been " road formation works and reticulation of services " (par 19). He goes on to say (par 33) that the following works " are currently underway ":

· road works (outside the Protected Area); · an additional temporary sedimentation pond (outside the Protected Area); · water reticulation (outside the Protected Area); and · drainage works (outside the Protected Area).

Forwood deposes that on 7 and 10 April 2000 he noted that " detention ponds for the collection of storm water runoff, perimeter sediment fencing and erosion controls were in place. These controls on the subject premises are temporary and rely substantially for their effectiveness on ongoing maintenance ".

Council's concerns regarding the site works, and actual or potential environmental harm, are clear from the various " notices " it has issued.

Forwood deposes (par 6), in respect of the 3 April notice, that the Council: … requires the remainder of items in the notice to be complied with. If the work referred to in the notice is not carried out in my opinion in the event of, a storm event, detention basins for the temporary storage of turbid and sediment laden water would overflow placing additional pressures on the sediment fencing adjoining the salt marsh and mangrove communities to the north and east of the site. Furthermore, temporary diversion culverts and storm water velocity reduction devices would become blocked with silt and soil deposits causing over topping and undermining of the sediment fencing. As a consequence these sediment laden waters would flow into Duck River and adjacent salt marshes and the wetland and have potential to cause environmental harm to the ecology of Duck River, the salt marshes, the wetlands and the mangroves.

Forwood testified that he had no discussions with the Corporation before issuing the first notice but had been in contact with the Environment Protection Authority.

In addition to the notice the Corporation has issued ( Exhibit S3 ), regarding alleged breaches of s 22B of the Rivers Act, Grose deposed in pars 67 and 71 of her affidavit to the following concerns: (i) Inadequate " exposure " of the development application to the Corporation (ii) Provision by the companies of inadequate information to the Council (iii) Failure to give the Corporation an opportunity to seek additional/adequate information on proposed works, especially on protected land, such that the corporation could advise the Council as required by s 91A of the EP&A Act (iv) The development application should have been dealt with as integrated development (v) In granting consent, the Council " deferred essential matters " in breach of the principles laid down in Mison & Ors v Randwick Municipal Council ("Mison") (1991) 73 LGRA 349. These essential matters related, inter alia, to: (a) the required works for stormwater and sediment management during construction and for the long term requirements of the development; (b) the establishment of the Applicant's requirements for the protection of protected lands and the inclusion in the development consent of those requirements; (c) the establishment of the NSW Fisheries' requirements for the protection of marine vegetation and the inclusion in the development consent of those requirements; and (d) the required works for sewerage and drainage of the land and other permanent infrastructure works. (vi) The s 96 application for modification of the development consent should also have been treated as integrated development as it involved work on protected lands and the removal of marine vegetation. (vii) Work has been carried out on the site in contravention of conditions of the development consent. (viii) Work has been carried out on the site on protected land without any, or any valid, permits.

Bourne deposes (par 17 of his affidavit) that: Prior to the commencement of any earthworks on site, it is proper practice to put in place erosion and sediment controls so as to prevent the transport of sediments and pollution of the environment. ….no permit has been issued … for the carrying out of such works on protected land on or near the site other than as marked in red hatching on the plan [in Exhibit W5]…. The red lines and hatching and the blue handwriting on the plan has been [sic] placed on the plan by me at the time shortly before I caused the permit dated 10 March 2000 to issue.

The provision of plans and other crucial information

Exhibit W11 was tendered on the basis that it was " Annexure JEG2 " to Grose's affidavit, in respect of which Annexure she deposed as follows: 36. On or about 29 March 2000 the applicant received from Trafalgar all 17 sheets in the set of plan 54-104, together with two sewerage plans, one water main extension plan, two retaining wall plans, one duct and trench details plan and one electrical reticulation plan.

37. All of these plan sheets excepting plan sheet 54-104-01 are rolled into a single roll which is exhibited to me at the time of swearing this affidavit and marked with the letters 'JEG 2'. Some of these plans not previously provided to the applicant indicated excavations on protected land.

The documents in Exhibit W11 comprise all sheets of the " 17 sheet " Rose Consulting Group plan bundle (really 18 sheets as the numbering is 00 to 17) prepared for Trafalgar, except sheets 1, 4, and 5, plus 3 Sydney Water " Developer contract plans ", 2 Rose Consulting Group drawings in respect of " retaining wall " and 2 Estate Power Design Pty Ltd drawings. Those sheets attributed to the Rose Consulting Group are stamped to the effect that they form part of the relevant engineering certificate, and are " hereby approved in accordance with Section 109C(1)(b) " of the EP&A Act.

Many of these sheets bear dates in June 1999. Some show certifier amendments in August 1999. The retaining wall sheets are dated November 1999 and were issued for construction in December 1999. The electrical sheets were certified in July 1999.

On the whole, Exhibit W11 illustrates that much of the detailed planning and design work was completed at least fairly soon after the development consent was granted by the Council.

The evidence of Grose indicates that these plans did not come to the Corporation until dates between 28 January 2000 and 29 March 2000 . Some 5 of them (including sheet 1, which is doc 6 of Exhibit W1 ) were received on 28 January 2000; some more of them (including sheet 5, a marked-up copy of which forms part of Exhibit W5 ) were received on 15 March 2000; and a bundle of all " 17 " was received on 29 March 2000.

It would seem that the bundle of plans shown to me by Counsel for the Corporation during his submissions may not be identical to the bundle in Exhibit W11 , but Mr Tomasetti drew attention, e.g., to notes on sheet 2 numbered 1, 2, 16, 17, 23 and 25, and to sheet 9 re mangrove removal requiring Fisheries' approval, sheet 11 re catchment plan (showing footings which would need to be excavated), and sheet 16 re hydrology (all of which sheets are included in Exhibit W11 ). (The other component of Exhibit W5 is the " missing " sheet 4).

On sheet 00, the cover sheet of the " 17 ", received by the Corporation on 29 March 2000, the following " General Notes " appear: … 2. The contractor shall locate and level all existing services prior to commencing construction and shall make all necessary arrangements with the relevant authority to relocate or adjust as found necessary. … 6. Sediment control measures shall be implemented prior to soil disturbance in keeping with the 'Urban Erosion and Sediment Control Manual' of the Soil Conservation Service, 'Soil & Water Management for Urban Development' by Department of Housing and to the satisfaction of the engineer and as shown in these drawings. …

The notes on sheet 2 (date of receipt unclear on the evidence) include the following: … 16. Sediment basins shall be maintained for the entire duration of the project or until such time as all disturbed areas are hydromulched with straw-bitumen mulching. … 23. Trafalgar, acting as an agent for SEPL, will liaise with the Department of Land and Water Conservation in respect of their requirements concerning earthworks carried out within 40m of tidal waters in connection with this development. Any requirement specified in a permit issued under Part 3A of the Rivers and Foreshores Improvement Act will be implemented. …. 25. Drainage and sediment control works will be installed as a first step in implementing the works. Temporary erosion control measures will be incorporated at all stages of development. All erosion and sediment control measures will be regularly inspected and maintained in good working condition. Maintenance will be undertaken to ensure that sediment is removed from filter fences, traps and basins before 60% of the available capacity is lost. Control measures will be maintained until all potential for erosion and sediment transport has been removed. … 27. During construction and maintenance of the site, stormwater will be directed away from the saltmarsh and mangrove vegetation. Controls will include the construction of swales, contour drains and/or drainage pipes. These control works will direct at gentle grades runoff towards the stormwater channel to the east of the site and Duck River to the west of the site. …

Sheet 2 bears the engineering certificate, and indicates that the " certifier amendments " were made in August 1999.

The Management Plan ( Exhibit W3 ), which was prepared by CH2M Hill, as required by condition 3 of the consent, to develop strategies which would protect the wetland ecosystem, is dated July 1999.

It refers to the conditions of consent including the 30m foreshore building line adjacent to the river, the 5m easement for public access along the river's boundary, the 3m easement for public access along the northern boundary, and the 5m easement for drainage purposes on the eastern boundary. It also acknowledges the Corporation's request for 30m/20m/10m riparian zones, or (as Exhibit W3 calls them) " terrestrial buffers" , and the Corporation was consulted during its preparation.

The document acknowledges the Corporation's concerns, but expresses the view that the 30/20/10 stipulation was not a " riparian zone policy " and was " based on a precautionary principle which was not supported by any stated threats to the long term sustainability of the wetland ".

It recognises that the management of riverine resources is a shared responsibility across the community and government, but it acknowledges government agencies as the first group responsible. Interestingly, local Councils are not mentioned in the list.

The Management Plan provided for the planting of a 15m strip of terrestrial vegetation between the mangroves on the river bank and the security fence line on the north-western boundary. It acknowledged that the 3m easement on the northern boundary should include a swale drain (obviously, therefore, within the statutory 40m) to divert fresh water away from the salt marsh, and that, between that drain and the fence line, there should be plantings as apparently required by condition 20 of development consent 161/98 granted to BP. The consultants recommend the restriction of development on the eastern boundary to the western side of a fence apparently erected 3m within that eastern boundary. The detailed strategy is set out at pp 10-15 of the Exhibit.

The Council says it dealt with the development application on the basis upon which it was presented, and that that was all it was obliged to do. The company was perfectly entitled to frame and/or amend its development application in such a way as to avoid any consequences of concern to it, such as the invocation of the integrated development processes, and/or the close involvement of the Corporation from the very start.

Council, in its turn, is entitled to rely upon the legal advice it sought on that question and, in any event, it says that it then proceeded to incorporate the Corporation's requirements into its conditions of consent (e.g. it contends that condition 3 was framed to reflect Exhibit W6 ). Mr Ayling, Counsel for the Council, says that a purposive construction of the Rivers Act leaves only a small window of opportunity for the Corporation to become involved. It has specific duties to perform and it does not have a " general charter " to control development near waterways.

Mr Ayling submitted that there was no evidence before the court that: (i) The company could not achieve its drainage objectives without a Part 3A permit; (ii) Council had failed to address relevant issues in the appropriate way, or had done anything wrong or unusual in deciding that condition 3 could later be deleted, once a relevant management plan had come into existence; and (iii) Environmental harm had been caused, was continuing, or would flow from any of the proposed works, pursuant either to the consent or to any orders issued to the companies; but he acknowledged that the Council may have overlooked the fact that sewerage works would or might take place within the protected lands.

Council is, in any event, opposed to the granting of any relief, largely because its consent has been acted upon, linen plans for some of the subdivision have been issued, some blocks have been sold, and Council has been considering and granting relevant development consents ( Exhibit C1 ). The court should not intervene without hearing from affected interests not yet before it.

Third party rights and interests will be adversely affected by any injunction to such an extent that the balance of convenience tilts against the Corporation.

Dr Flick, SC, Counsel for the companies, sees the whole matter in breathtakingly simplistic terms.

He says that across all these proceedings, the only real argument among the parties concerns the width of setbacks from the relevant boundaries. The Corporation wants 30m to the river, 20m to the marsh, and 10m to the mangroves, while the Council wants 15m plus a building setback to the river, 3m to the marsh, and 5m to the mangroves.

Further, as there is no evidence of any environmental harm, even if there were some question to be tried, the only issue before the court is " procedural nicety ".

The court should not intervene because it would preclude the companies from doing works that both the Corporation and the Council deem necessary. The companies' intended works are nearly completed, and they are more than happy to comply with the notices.

Any issues that the Corporation may need to raise could easily be added to the proceedings currently fixed for 8-9 May, and those dates should not be vacated. In any event, those proceedings will resolve the Corporation's concerns, and they have already been expedited. Separate trial of issues should be avoided. See Orison Pty Ltd v Strategic Minerals Corporation NL & Ors (1987) 77 ALR 141. (I discussed this court's power to separate questions for determination in Vanmeld Pty Ltd v Fairfield City Council (10081 and 40077 of 1997, 29 May 1998 at pp 12-16).

Dr Flick submitted that the Corporation in bringing these proceedings verged on an abuse of the court's process. He said that statutory authorities are supposed to be model litigants and that this one now wants an injunction to stop all work, including some which everyone agrees is necessary. In order to do so, the Corporation has hypocritically attacked its own permit and now brings proceedings urgently , despite its own long delays. If the point it is now raising is good, it must have been good in April 1999, when it accepted that the proposal was not " integrated development" , and it certainly must have been good in November 1999, when it had another opportunity to review the position.

Dr Flick says that everything about his clients' operations was out in the open and there was no deliberate, or even accidental, subverting of statutory bodies and their responsibilities. The companies were entitled to take the site out of the integrated development regime and the Council went out of its way to get the Corporation to say what it wanted. Consultation continues, but no need arose for any permit under the Rivers Act until late 1999.

Like Mr Ayling, Dr Flick submits that the Part 3A powers are confined to conditioning specific works. They are not a general planning brief.

Dr Flick submits that the " integrated development " provisions are clearly confined to the original development application and have no bearing at all on the modification application. The company has accepted on both 29 July 1999 and in March 2000 that it would need a 3A permit and has taken steps to obtain them. As a result of the meeting of 29 July 1999, regardless of whose idea it was to change the drainage scheme, significant change was made to the scope of works presented in the original development application.

The company has consistently said its proposal did not involve " integrated development " and the Corporation acknowledged in its letter of 3 March 2000 ( Exhibit W6 ) that the proposal could be amended to take it outside the scope of Part 3A. Council and the company both got legal advice on that question.

Dr Flick contends that the interlocutory application must fail because: (i) there is no substantial question to be tried; (ii) the Corporation and Mr Tomasetti cannot make up their mind what order they want; (iii) delay. (iv) the Corporation approaches the court with " unclean hands "; (v) relief will override the rights of persons not yet represented; (vi) alternative remedies to minimise harm are available, e.g. requiring, and not stopping, work under relevant notices.

Any potential harm would be better avoided by allowing the company to get on with obeying the conditions of consent and the various notices and orders to which it has been subjected.

The allegation of " unclean hands " is a serious one. Dr Flick relies upon the Corporation's alleged refusal to help the Council in the s 96 appeal. (This allegation is denied, as is the allegation that the Corporation " accepted " that the proposal was not integrated development). The Corporation received " the plans " from the Council, according to Dr Flick, at the time of the development consent. Mr Bourne acted illegally in issuing an oral permit and officers of the Corporation had adequate opportunity to follow-up the site following the development consent and have not done so.

Dr Flick also submitted that if the Corporation is to receive the benefit of an injunction, it should give an undertaking as to damages, and, if the injunction is refused, the Corporation should be ordered to pay the companies' costs on an indemnity basis.

With great respect to Dr Flick and Mr Ayling, some of their submissions fly in the face of the clear evidence given by Mr Williams.

In cross-examination, Williams, who accepted the description that he was a responsible and experienced developer, made several important concessions: (a) the companies' drainage plans were " concept only " prior to the grant of Council's consent; (b) any such concepts would always involve moving water away from the centre of the site towards its boundaries;

(c) he was aware of the environmental sensitivity of those boundaries; (d) he was aware from very early in 1999 that the Corporation desired riparian zones, but the companies opposed them and were keen to avoid them becoming part of the consent, resisting the 30/20/10 scheme advocated by the Corporation; (e) the works shown in protected lands in doc 6 of Exhibit W1 , produced in June 1999, were within his knowledge prior to that date; (f) the company did not provide the Council, at the time of its consideration of the DA, with several key items, eg. a flood plan, a sediment control plan for the construction phase, details of storm water proposals, and details of inter-allotment drainage; and (g) he knew all along that excavation of protected lands would be needed for sewerage purposes.

Williams relied in his evidence, in order to excuse alleged shortcomings in the companies' works, on the works done by BP, and the fact that his companies' instructions have apparently not been followed by their contractors. Williams said that the only work undertaken within the protected lands, within the knowledge of the companies, was that which was undertaken pursuant to orders from the Council. However, he agreed in cross-examination that no " existing works " had been shown on any of the company's plans to reflect what he now says had been carried out previously by BP.

There is before the court no evidence as to any consent, approval or orders given to BP, and no evidence of what, if any, controls were imposed upon their operations on the site during the clearing and remediation phase. These companies took over the site in July 1999 from BP and began their own fill operations.

The Corporation is an arm of government which asserts that the matters it has raised in these proceedings are matters of substance, and neither merely questions of procedural nicety, nor an attempt to insist upon certain setbacks. The Corporation may not have a general planning brief, but it has a statutory responsibility to protect waterways and water features.

In this case it says that neither of the approvals granted by the Council, and none of the permits or purported permits granted by the Corporation, are valid. The issue among these of greatest importance to the project is the validity of the development consent.

Mr Tomasetti contends that the Council was led into error by the way in which the DA was framed and amended, and that, where works in a development application require another approval, the integrated development process simply must be followed or the consent must be refused.

The imposition of conditions thought by the Council to be adequate, cannot lift a project that is properly characterised as " integrated development " out of the need for it to be assessed and determined in accordance with that statutory process. The Council should have been able to see quite clearly, and should have said to the proponent, that there was work inevitably required (and probably contemplated) by the proponent which fell within the purview of s 22B of the Rivers Act.

In failing to deal with the matter in this correct way, the will of the Parliament was frustrated. That will is expressed in provisions which require that any legitimate concerns and requirements of another approval body must be incorporated by Councils (as consent authorities) in the appropriate consent. Exhibit W6 makes clear that if that had happened in this case, the subdivision would have been substantially different from that which was approved and is currently under construction.

The Statement of Environmental Effects showed that the development application was indeed " integrated development ", but a flurry and exchanging of legal advice followed, and the company withdrew from the original application issues regarding removal and replacement of fill. Neither in its original application, nor in its amended version, did the company say that it would be proceeding by adapting, in terms of its relevant works, any works that BP had already done.

Exhibit W3 (the CH2M Hill Report) makes no reference to BP having set up some of the work proposed, and/or relied upon, by the company, although it refers (at p 9) to a condition imposed upon DA 161/98 requiring planting between a drain and the northern fence line.

Mr Tomasetti submits that, as the underpinning consent is invalid, no work should go on without the leave of the court. Such leave could be granted if works were, for example, necessary to protect the environment following a storm, etc.

On 10-11 March 2000, when, it is alleged, sediment escaped to the wetlands in heavy rain and emergency works were considered necessary, those works included additional sediment ponding, etc., matters which Counsel for the Corporation submits should have been addressed at the consent stage in discussion between Council and the Corporation.

It is further argued by Counsel for the Corporation, that the aim of the modification application was to delete the need for the Corporation to be heavily involved, let alone to consent, to works being approved and/or carried out in the protected land. The Management Plan envisaged by the original condition 3 should have been available to all relevant authorities at the time of considering the very question of development consent.

Mr Bourne made clear in his cross-examination that he was not personally " intimately " involved in ongoing negotiations with the companies and the Council. The Corporation had been seriously involved for periods of time, but then things would " go quiet ". In those times it reviewed information provided to it, but did not initiate any action. It awaited approaches for permits, relying upon the Council (and presumably the company) to " do the right thing " when the need arose.

He conceded that the changes made in July 1999 were significant. The outcome would be better environmentally and erosion would be avoided, so the Corporation supported the changes, even if it did not suggest them.

He made clear that the acknowledgment by the Department that the DA could be amended to render it not " integrated development " was not a concession that the DA as amended was not, in fact, " integrated development ".

The 30/20/10 scheme has been the Corporation's preferred position, in cases such as this, since 1992 , according to Mr Bourne's evidence (cf the CH2M Hill assertion, noted in par 143 above).

From the above factual analysis I have come to the conclusion that the following ten propositions emerge as at least arguable by the Corporation in support of the interlocutory and consequential relief it has sought from the court at this stage: 1. Properly construed, the " integrated development " provisions of the EP&A Act, and the related amendment made to the Rivers Act, mean that any development consent, modification approval, or Part 3A permit, issued outside of the integrated development scheme, when the proposals involved should properly have been dealt with under that scheme, will be void or invalid. 2. Properly viewed, the development application, even as amended prior to consent being granted on 27 April 1999, consisted of " integrated development ", and should have been dealt with in accordance with those provisions of the EP&A Act. 3. Properly viewed, the modification application, even as amended in about October 1999, consisted of " integrated development " and should have been dealt with in accordance with those provisions of the EP&A Act. 4. The various works included in the applications for Part 3A permits are also appropriately characterised as " integrated development " and, as such, at least those included in the application dated 25 January 2000, should have been dealt with in accordance with those provisions of the EP&A Act. 5. In the absence of a consent for integrated development, works done on the site of 83 Derby Street, Silverwater are unlawful, having been carried out in breach of the EP&A Act. 6. Even though Williams conceded in cross-examination that a lot of detail was not provided, either at all, or in a timely way, to the Council, the Companies knew , and say that they provided to the Council, information which, the Corporation submits, made, or should have made, clear to the Council , at all material times, that works proposed for the site would necessarily be carried out partly in/on/ under protected lands, such as to enliven the provisions of Part 3A of the Rivers Act. Accordingly, Council's decision to accept advice that the proposal was not " integrated development " was an error of such nature and magnitude as to render void both its consent, and its approval of a modification thereof. 7. The Corporation has no statutory power to issue an oral permit under par 3A of the Rivers Act, even in emergency circumstances. 8. Some of the conditions attached to the consent, the approval, and some attached to the Part 3A permit(s), infringe the principles in Mison , in that they defer substantial matters for later determination, and/or are too uncertain . 9. In attempting to accommodate comments made by the Corporation, the Council, in reaching its decisions and imposing its conditions, usurped the Corporation's statutory role in determining, particularly as a participant in the integrated development processes now provided in the EP&A Act, how best to protect the river and associated tidal features. 10. Had the appropriate processes been followed, the subdivision which resulted would probably be quite different from that which is now under construction. 184. I have, therefore, concluded that there is a range of serious issues to be tried in matter 40055, such that there is at least a prima facie case made out for interlocutory relief to be granted.

The critical question now before the court is whether interlocutory relief should be granted, and, if so, what relief, and on what terms.

At the end of the day, the court must acknowledge that the " public interest " is wider than the interests of those who rely upon consents to do works, or those who buy and develop property in reliance, at least in part, upon such consents.

In this case, some of the works done may well be found, at the end of the day, to be acceptable, even desirable, but the Corporation asserts, and the court would normally take the view, that the relevant law must be obeyed.

In Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council & Ors (1980) 44 LGRA 346, Wilson J, one of the majority judges in the High Court, said (at p 370-371): … Substantial compliance with the Act and ordinances is a condition precedent to jurisdiction to grant consent …. … The imperative underlying my conclusion in this matter is the importance of a faithful adherence to the provisions of the Act and ordinances so that the interests of all parties concerned with an application under that legislation are protected. Allegations were made in this case that the contents of the appellant's application and advertisements were likely to mislead the public as to the appellant's intentions with respect to the removal of metal from the quarry. There will be less room for ignorance or misunderstanding of an application once it is accepted that an applicant for consent to use land for a particular purpose must frame his application so that it reveals the extent and nature of those land uses which are matters of substance and are incidental to and necessarily associated with the primary use.

The principles of jurisdictional fact have been discussed recently by the NSW Court of Appeal, notably in Helman v Byron Shire Council & Anor (1995) 87 LGERA 349, and in Timbarra Protection Coalition Inc v Ross Mining NL & Ors (1999) 102 LGERA 52 (see especially the judgment of Handley JA in Helman , at 354-360, where he applied the principles in Tasker v Fulwood [1978] 1 NSWLR 20 at 23-24. The reasoning in Tasker was adopted by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841 at 842, 860-861 (par 93)).

I have come to the preliminary conclusion that there is a serious question to be tried on whether it was a purpose of the amending EP&A legislation, which introduced the integrated development provisions, that any act done in breach of those provisions will be held to be invalid . This preliminary view is reached on the basis of the provisions of s 91A(4), which uses the term " must refuse ".

As a result of the November 1999 approval of the modification application, the Management Plan ( Exhibit W3 ) is no longer a condition of the consent and the Corporation has effectively been taken " out of the loop ". The Management Plan on its face indicates works within the protected lands. Had it been available at the time of the granting of development consent, it would have clearly shown the Council that such works were involved in the development. Also doc 6 of Exhibit W1 should probably have been with the original development application.

It was always self-evidently logical to put the drainage at the boundaries and, therefore, within the prescribed lands, and it is clear from the evidence that the fill was always to go up to the relevant boundaries.

The Corporation had expressed its concerns on 5 August 1999 (doc 10 of Exhibit W1 ) and its recommendations should probably have been part of the consent itself. The Corporation appears to have relied upon the Council enforcing its conditions.

The balancing of the entitlement to constrict the proposal submitted to the Council, and the obligation to disclose what works are known to be actually involved in the proposal submitted, must also be a live issue for the substantive proceedings.

There is also a serious question to be tried as to whether s 22C(3A) of the Rivers Act has the effect, in the circumstances of this case, of requiring any permit under Part 3A of the Act to be issued through the integrated development processes of the EP&A Act, or be held to be invalid.

The principles adopted by the Court of Appeal in Mison are now well known and frequently applied in the court, eg. in cases such as Scott & Ors v Wollongong City Council & Anor (1992) 75 LGRA 112, drawing as they do on principles adopted elsewhere (eg. Wells J in Corporation of the City of Unley v Claude Neon Ltd (1983) 49 LGRA 65 at 68), and often in the context of the enactment of the old s 91AA (now s 80(3)) and its impact on issues of certainty and finality. (See e.g. comments of Talbot J at p 9 of his judgment in Remath Investments No.6 Pty Ltd v Botany Bay City Council (No.2) (10649 of 1996, 11 December 1996)). I myself considered the authorities on such questions of finality, certainty and deferred commencement in Tier Consulting Group Pty Ltd v Blue Mountains City Council (1998) 99 LGERA 31, and Helman is also relevant on this point.

I have, therefore, concluded that there is also a serious question to be tried in respect of the Mison principles, and their application to this matter, certainly to the conditions of consent attaching to the development consent, and also a serious question to be tried on the question of whether those Mison principles should be applied to any permit issued under Part 3A of the Rivers Act.

It is arguable that some of the conditions attached to the various consents and approvals in this matter defer essential matters, and/or could be seen to be uncertain, and/or indicate quite clearly, that the Council must, or should at the time, have realised that there were works proposed for this site which required approval under Part 3A. In this particular regard, Counsel for the Corporation refers especially to conditions 20, 26 and 29 of the consent. Mr Tomasetti would also apply Mison to the VMP conditions attached to the Part 3A permit and conditions 1, 5, 10, 12, 15, and 19-24 thereof.

The Corporation goes on to submit that, even if the consent were found to be valid, the companies have clearly breached some of its conditions , notably 29, 30 and 32. The Corporation complains that the Council has not taken any action in respect of these alleged breaches and has allowed works to be done contrary to the Rivers Act.

On their face, the conditions of consent would appear to require various things to be done first in priority, and not to be built up gradually during other development works, as Mr Williams contends.

Mr Tomasetti has further submitted that there is no provision in the Rivers Act for an oral permit. Mr Ayling was prepared to allow that there may be no proscription of such an oral permit, despite s 22C(1)(a) speaking of " form ", but it is noteworthy that the Corporation has not yet adopted Bourne's decision to issue the oral permit by responding to the written application made by the company for that permit to be issued retrospectively, and I think the validity of that permit is also a serious question to be tried.

Dr Flick raised questions of " clean hands ", and in assessing the issues the court must have " even hands " as well.

Mr Tomasetti acknowledges the rights of other persons who already hold consents for parts of Stage 1 of the subdivision, and acknowledges that they will be occasioned some inconvenience, as will the companies, if an injunction is granted. However, he submits that allowing any further sales and development work on the land may complicate the situations of all concerned.

If I were not satisfied that some environmental harm may well have occurred and that some further harm is possible, I would be reluctant to grant the injunction. However, the evidence before the court indicates quite clearly that some environmental harm may already have occurred, through whatever cause, and with such large earthworks being carried out, harm is certainly possible. In this regard reference should be had to documents 12-16 of Exhibit W1 , in addition to the photographs in Exhibit W12 (which were taken on 21 March 2000) and those in Exhibit W8 (which were taken on 11 April 2000).

Those materials are certainly suggestive of the risk, if not the fact, of environmental harm, and are also probative in their own way of works having been carried out within the 40m protected lands limit. In his evidence regarding Exhibit W9 , Bourne testified - as also did Forwood - to having seen a log retaining wall constructed in or near the eastern drain within 40m of the mangrove area.

Bearing all that in mind, I have come to the view that the consequences of refusing interlocutory relief in this case may well be substantially outweighed by the consequences of granting it. See North Coast , and also Silktone Pty Ltd v Devreal Pty Ltd & Ors (1990) 21 NSWLR 317 (at 320ff) where Kirby P recognised the inevitable impact of injunctions upon innocent third parties (and upon the public generally).

Turning to the question of whether the court should in its discretion refuse the relief, I note the state of " completion " of the works, the works required of the companies, and the negotiations that have taken place between the parties, as evidenced by the letters annexed as annexures " I " - " N " to Williams' affidavit dated 11 April, being correspondence between the Corporation and the solicitors for the companies between 29 March and 5 April 2000. I do not deal with them in detail, but the parties should note that the court has had regard to them in the context of whether or not to refuse the injunction in the exercise of its discretion.

Having regard to the orders that I have decided to make in this matter, I can only suggest that the parties continue to confer, and perhaps involve other interested parties such as the Environmental Protection Authority, which the Council has already consulted, in order to find a solution to the very perplexing position in which all involved will now find themselves. In this regard, I respectfully draw the parties' attention to the provisions of Part 5A of the Land & Environment Court Act which, in its present form, requires that all parties consent to any mediation (s 61D(1)(b)).

Annexure " N " draws attention in par 4 to the " real impact " of a refusal by the Corporation to allow works to proceed. Reference is made to the detailed comments in Williams' affidavit and to the contention that the Corporation's refusal to allow works to proceed, gives rise to " greater environmental risk to runoff to the Duck River, the protection of which should be paramount to your Department's consideration ".

On the question of discretion , the company asserts the right to constrict its proposal to take it outside the " integrated development " guidelines. It relies upon work which it infers may have been done contrary to the strict instructions given to contractors (par 19, affidavit 11 April 2000). It suggests that the features complained of by Corporation witnesses may be exaggerated in their evidence. It relies on the construction of sedimentation centres during 1998 and 1999 presumably at least partly the responsibility of BP and says that some of the complaints made on the basis of doc 12 of Exhibit W1 may have been " done in conjunction with the erection of the sedimentation fence ". Williams says that he has been " in frequent telephone and direct communication with Mr Bourne " from about March and/or July 1999 and, that at no time " apart from 21 February 2000 did Mr Bourne indicate to me that he considered any of the works undertaken to date, of which he was fully aware, were illegal and at no time did he suggest that any of the work should stop " (par 21, affidavit 11 April).

Williams says (par 9, affidavit 11 April) that doc 5.3 of Exhibit W1 should not be inferred to have been held back from the Corporation. " This plan is essentially the same as the plan which accompanied the development application which was forwarded to DLWC by Auburn Council in early 1999. I include this paragraph to correct any inaccurate impression that might otherwise be obtained that DLWC did not know what was proposed until April 2000 ". [This is directly contrary to the sworn evidence of Grose]. The company and the Council agreed to disagree regarding the order of events as testified by their respective witnesses, but Ms Grose was not required for cross-examination in respect of her assertion of lack of information, especially in early 1999.

In his affidavit of 12 April, Williams reasserts that Silverwater has " not authorised any work in the Protected Zone, with the exception of the emergency works detailed above which were carried out in compliance with Clean-up Notices issued by Auburn Municipal Council ". (par 7). He goes on to say that the company " does not propose to authorise any of the works set out in the Application for a Part 3A Permit lodged on 25 January 2000, or any other works in the Protected Zone, until such works are authorised under a valid permit ". He swears (in par 9, affidavit 12 April), following oral evidence given by Paul Bourne on that date in respect of photographs taken the previous day, that any works that are asserted by Bourne to have been carried out after 1 March 2000 would be " works which were carried out in compliance with the Clean-up Notice issued by Auburn Council, and for which we had obtained verbal authorisation from Paul Bourne ".

I have also taken into account the practical difficulties an injunction will cause to the companies (see, eg., par 87 above).

In response to Dr Flick's defence of delay on the part of the Corporation, Mr Tomasetti says that condition 3, as it stood prior to the modification application, even if it were invalid, was seen to protect the Corporation's interests. It remained in force until November 1999.

Contrary to Dr Flick's assertion, the Corporation says it has not been kept fully informed of developments on this site. Williams admitted sidelining the Corporation (see affidavit 11 April 2000 pars 4-6, and 12)., and the companies knew they would be excavating for sewer pipes and told neither the Council nor the Corporation.

Document 5.1 of Exhibit W1 put the Corporation's position, but the company did not reveal its plans (See Grose pars 23ff and especially 30-31), and the Corporation, rightly or wrongly, relied on Council to protect the river and environs until matters " came to a head " with the storm event on 10-11 March 2000 and what followed it.

I am not satisfied that the Corporation lacks " clean hands ".

For its part, the company delayed from July 1999 until January 2000 making its application for the requisite Part 3A permit, and whenever statutory decisions take a little longer than it would like, proceedings are commenced in this court.

In respect of the assertion by Dr Flick that the application for interlocutory relief should be dismissed because of the imprecision on the part of the Corporation in specifying what order it is actually seeking, Mr Tomasetti relies upon Blacktown Municipal Council v Friend & Ors (1974) 29 LGRA 192 (a first instance case of Mahoney J) in which (at 201) His Honour said: I come now to consider what order should be made. Mr Waddell in his address indicated that the council did not feel able to oppose an order that the operation of any injunction granted should be suspended for a period up to one year. It is important in my view that if an injunction is to be granted it should be of such a form as will proscribe any use of the land which is contrary to the ordinance. However, it may be desired that the terms of the injunction deal in detail with the nature of the activities to be proscribed in order, for example, to prevent further litigation arising from arguments as to whether an injunction in general terms covers the precise activities carried on. I will therefore allow the parties to consider the precise form of the injunction to be granted and, if it is desired, to bring in appropriate agreed minutes for my consideration.

Dr Flick sought an undertaking as to damages but none was offered. I have considered that circumstance in coming to my conclusions, and I rely on the reasoning of Cripps J in Ross v State Rail Authority & Ors (1987) 70 LGRA 91.

In support of his submission that further hearing of matters 40033 and 10250 would involve the court in dealing with hypothetical matters while ever the development consent is under active challenge, Mr Tomasetti relies upon Attorney General for Ontario v Hamilton Street Railway Company & Ors [1903] AC 524 where the Privy Council said, through the Lord Chancellor, (at 529): With regard to the remaining questions, which it has been suggested should be reserved for further argument, their Lordships are of opinion that it would be inexpedient and contrary to the established practice of this Board to attempt to give any judicial opinion upon those questions. They are questions proper to be considered in concrete cases only; and opinions expressed upon the operation of the sections referred to, and the extent to which they are applicable, would be worthless for many reasons. They would be worthless as being speculative opinions on hypothetical questions. It would be contrary to principle, inconvenient, and inexpedient that opinions should be given upon such questions at all. When they arise, they must arise in concrete cases, involving private rights; and it would be extremely unwise for any judicial tribunal to attempt beforehand to exhaust all possible cases and facts which might occur to qualify, cut down, and override the operation of particular words when the concrete case is not before it.

Similar principles were expressed by the full court of the Supreme Court of Victoria in Swift Australian Co (Pty) Ltd v South British Insurance Co Ltd [1970] VR 368 at 369, by the NSW Court of Appeal in Sanderson Computers Pty Ltd v Urica Library Systems BV (1998) 44 NSWLR 73, and by the Chief Judge of this court in Klefend Pty Ltd v Santom Pty Ltd & Anor (1994) 88 LGERA 307 at 310-314, where Her Honour reviewed the relevant cases.

I am content to follow those principles here, with the result that the further disposition of matters 40033 and 10250, and probably also 10276 and 10074, should abide the outcome of 40055.

As the validity of statutory decisions by the Corporation and the Council is a " given " in all four of the other proceedings currently before the court: 1. The hearing dates 8-9 May for matters 40033 and 10250 should be vacated; 2. The hearing of 40055 should be expedited in view of the obvious urgency of deciding if the consents, approvals and permits involved are valid or invalid; and 3. The hearing dates 25-28 June may have to be reviewed when the expedited hearing of 40055 has been concluded, in case judgment is reserved and not delivered until too close to those dates.

It is clear, therefore, from what I have written, that I have determined that I should order that all further work on the subject site cease forthwith , until further order.

I grant liberty to all parties to this litigation to apply on 24 hours notice to restore any of these five matters to the list, but all five should remain associated in the court's lists until the issues in matter 40055 of 2000 have been determined.

The hearing of matter 40055 is expedited , and the parties have the court's leave to approach the Registrar forthwith to fix the hearing of that matter and make further directions in regard to it. The applicant in 40055 is directed to file and serve its foreshadowed amended Class 4 application by 12 noon on Wednesday 19 April 200 and a formal Points of Claim document within seven days thereafter.

I invite the parties to now confer with a view to reaching agreement on Short Minutes of Order which would vary the order referred to in par 225 above to the effect that specified works, agreed by them to be necessary, given the state of the site, the works thereon, and the various statutory orders, notices, etc. served on the companies in recent times, might be carried out with the approval of the court. I am conscious of the fact that the works required may otherwise require development consent and/or further Part 3A permit(s).

The parties should, in any event, bring in Short Minutes of Order to reflect this concluding section of this judgment.

The joint hearing of matters 40033 of 2000 and 10250 of 2000, currently fixed for 8-9 May is vacated ; and the directions therein are suspended until further order. As requested by Ms Berglund on the companies' behalf this morning, the Registrar will reserve those dates pending any appeal against this decision. In the meantime, the name of the applicant in 40033 and the respondent in 10250 are amended to " Water Administration Ministerial Corporation ".

Further consideration will need to be given to the arrangements already made for the hearing together of matters 10276 of 2000 and 10764 of 2000 on 26-28 June 2000, in the light of this judgment and the further disposition of matter 40055. This will be facilitated by the five matters " running " together in the court's lists.

233. All the exhibits will be retained by the court for a period of 10 days and then may be collected by the parties from the Registry.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

... Compliance with this order is problematic because until the drains are constructed, earthworks cannot be completed and the surface cannot be completely stabilised by placement of topsoil. These works cannot be completed because the Part 3A Permit currently held by the Company is in dispute and will be resolved by this Court on 8 and 9 May 2000.

109. On 17 March 2000 the Corporation issued to Silverwater a Remedial Notice pursuant to s 22G of the Rivers Act (Exhibit S3), arising out of the inspection on 21 February 2000, as a result of which the Corporation said it was:

A. made an excavation on, in or under protected land in contravention of section 22B;

B. removed material from protected land in contravention of section 22B;

110. Williams makes no mention of this 17 March notice in any of his affidavits, and his company's Counsel says that he personally became aware of it only on about 13 April 2000.

111. On 22 March 2000, Council gave Silverwater notice of its proposal to issue an "Order 17 under s 121B" regarding failures to comply with condition 29 of the consent. Again detailed particulars of the work required were provided (see Annexure "A" to Williams affidavit of 12 April 2000).

112. On 3 April 2000 Council issued to Silverwater a "Directions to Take Preventative Action" under s 96 of the Protection of the Environment Operations Act 1997 (see Annexure "A" to Forwood affidavit), following inspections on 22 and 23 March 2000 "in wet and dry weather respectively" which "disclosed that fill material and sediments had been washed into" the mangrove channel on the eastern boundary at the north-east corner, the river, and the mud flat area west of the salt marsh. Again, works directed to be done were specified in detail.

113. For completeness I should add a few words about sewerage arrangements for this site.

114. Sewerage works on this site are subject to "Compliance Certificate" procedures administered by Sydney Water (see "Notice of Requirements" given on 19 November 1999 to Rose Consulting Group - Exhibit S4) to which company officials have agreed in writing.

115. Sewerage plans were provided to the Corporation by Silverwater on about 28 January 2000 (doc 6 of Exhibit W1) and then on or about 29 March 2000 (see Grose affidavit pars 31-36, and Exhibit W11).

116. Those plans indicate quite clearly that both sewerage and drainage works were proposed for protected lands.

117. Following whatever works were done by BP, works worth approximately $1.5M were proposed by Silverwater in its DA, and are covered by the development consent.

118. Williams says (par 2 of his affidavit of 12 April 2000) that the works carried out to date by or on behalf of the companies are:

(c) electrical and telecommunication for Stages 1 and 2;

(d) stormwater and sewer works for Stage 2, except within the Protected Zone;

119. He says that those works are worth approximately $1.2M.

120. Following the Council "Clean Up" notice of 10 March 2000, the following works were commenced on an emergency basis on 11 March 2000 (par 5 affidavit of 12 April 2000):

(g) Removal of sediment outside the silt fence; and

(h) Cleaning sediment out of swale drains along the silt fence.

121. Forwood testified that to his observation those works required by Council in that notice have been completed. What he observed in the photos in Exhibit W8 was consistent with what Council required.

122. Williams swears that Silverwater has not authorised any work in the protected lands except the above emergency works which were carried out in compliance with the Council notice (see pars 7 and 8, affidavit of 12 April 2000), and that Silverwater "does not propose to authorise any of the works set out in the [Part 3A application] lodged on 25 January 2000, or any other works in the Protected Zone, until such works are authorised under a valid permit".

123. He says that the works Bourne concluded in his oral evidence had been carried out between 1 March and 11 April 2000 were "works carried out in compliance with the Clean Up Notice issued by Auburn Council, and for which we had obtained verbal authorisation from Paul Bourne".

124. In his affidavit of 11 April 2000 Williams says of the events which occurred on 10-11 March 2000 (par 24):

... The circumstances at the time were that heavy rain had been falling for some days and because the site had been filled, but not top dressed, the fill was in a position where heavy rain would affect it. The site is in a position whereby the subdivision works are almost complete, including road formation. However, roads cannot be completely sealed and drainage works cannot be completed until the works specified in the Part 3A Permit are undertaken. Those works cannot be undertaken because there is an issue between the Company and DLWC as to the Vegetation Management Plan required thereunder and particularly related to the setbacks that are being required by DLWC. That issue will be resolved at the hearing of proceedings no. 10250 of 2000 on 8 and 9 May 2000.

125. In that same affidavit Williams notes that "39,000 cubic metres of fill has been imported to the site and compacted to achieve the approved final levels ..." (par 3) and there have been "road formation works and reticulation of services" (par 19). He goes on to say (par 33) that the following works "are currently underway":

· an additional temporary sedimentation pond (outside the Protected Area);

· water reticulation (outside the Protected Area); and

126. Forwood deposes that on 7 and 10 April 2000 he noted that "detention ponds for the collection of storm water runoff, perimeter sediment fencing and erosion controls were in place. These controls on the subject premises are temporary and rely substantially for their effectiveness on ongoing maintenance".

127. Council's concerns regarding the site works, and actual or potential environmental harm, are clear from the various "notices" it has issued.

128. Forwood deposes (par 6), in respect of the 3 April notice, that the Council:

... requires the remainder of items in the notice to be complied with. If the work referred to in the notice is not carried out in my opinion in the event of, a storm event, detention basins for the temporary storage of turbid and sediment laden water would overflow placing additional pressures on the sediment fencing adjoining the salt marsh and mangrove communities to the north and east of the site. Furthermore, temporary diversion culverts and storm water velocity reduction devices would become blocked with silt and soil deposits causing over topping and undermining of the sediment fencing. As a consequence these sediment laden waters would flow into Duck River and adjacent salt marshes and the wetland and have potential to cause environmental harm to the ecology of Duck River, the salt marshes, the wetlands and the mangroves.

129. Forwood testified that he had no discussions with the Corporation before issuing the first notice but had been in contact with the Environment Protection Authority.

130. In addition to the notice the Corporation has issued (Exhibit S3), regarding alleged breaches of s 22B of the Rivers Act, Grose deposed in pars 67 and 71 of her affidavit to the following concerns:

(i) Inadequate "exposure" of the development application to the Corporation

(ii) Provision by the companies of inadequate information to the Council

(iii) Failure to give the Corporation an opportunity to seek additional/adequate information on proposed works, especially on protected land, such that the corporation could advise the Council as required by s 91A of the EP&A Act

(iv) The development application should have been dealt with as integrated development

(v) In granting consent, the Council "deferred essential matters" in breach of the principles laid down in Mison & Ors v Randwick Municipal Council ("Mison") (1991) 73 LGRA 349. These essential matters related, inter alia, to:

(a) the required works for stormwater and sediment management during construction and for the long term requirements of the development;

(b) the establishment of the Applicant's requirements for the protection of protected lands and the inclusion in the development consent of those requirements;

(c) the establishment of the NSW Fisheries' requirements for the protection of marine vegetation and the inclusion in the development consent of those requirements; and

(d) the required works for sewerage and drainage of the land and other permanent infrastructure works.

(vi) The s 96 application for modification of the development consent should also have been treated as integrated development as it involved work on protected lands and the removal of marine vegetation.

(vii) Work has been carried out on the site in contravention of conditions of the development consent.

(viii) Work has been carried out on the site on protected land without any, or any valid, permits.

131. Bourne deposes (par 17 of his affidavit) that:

Prior to the commencement of any earthworks on site, it is proper practice to put in place erosion and sediment controls so as to prevent the transport of sediments and pollution of the environment. ....no permit has been issued ... for the carrying out of such works on protected land on or near the site other than as marked in red hatching on the plan [in Exhibit W5].... The red lines and hatching and the blue handwriting on the plan has been [sic] placed on the plan by me at the time shortly before I caused the permit dated 10 March 2000 to issue.

The provision of plans and other crucial information

132. Exhibit W11 was tendered on the basis that it was "Annexure JEG2" to Grose's affidavit, in respect of which Annexure she deposed as follows:

36. On or about 29 March 2000 the applicant received from Trafalgar all 17 sheets in the set of plan 54-104, together with two sewerage plans, one water main extension plan, two retaining wall plans, one duct and trench details plan and one electrical reticulation plan.

37. All of these plan sheets excepting plan sheet 54-104-01 are rolled into a single roll which is exhibited to me at the time of swearing this affidavit and marked with the letters `JEG 2'. Some of these plans not previously provided to the applicant indicated excavations on protected land.

133. The documents in Exhibit W11 comprise all sheets of the "17 sheet" Rose Consulting Group plan bundle (really 18 sheets as the numbering is 00 to 17) prepared for Trafalgar, except sheets 1, 4, and 5, plus 3 Sydney Water "Developer contract plans", 2 Rose Consulting Group drawings in respect of "retaining wall" and 2 Estate Power Design Pty Ltd drawings. Those sheets attributed to the Rose Consulting Group are stamped to the effect that they form part of the relevant engineering certificate, and are "hereby approved in accordance with Section 109C(1)(b)" of the EP&A Act.

134. Many of these sheets bear dates in June 1999. Some show certifier amendments in August 1999. The retaining wall sheets are dated November 1999 and were issued for construction in December 1999. The electrical sheets were certified in July 1999.

135. On the whole, Exhibit W11 illustrates that much of the detailed planning and design work was completed at least fairly soon after the development consent was granted by the Council.

136. The evidence of Grose indicates that these plans did not come to the Corporation until dates between 28 January 2000 and 29 March 2000. Some 5 of them (including sheet 1, which is doc 6 of Exhibit W1) were received on 28 January 2000; some more of them (including sheet 5, a marked-up copy of which forms part of Exhibit W5) were received on 15 March 2000; and a bundle of all "17" was received on 29 March 2000.

137. It would seem that the bundle of plans shown to me by Counsel for the Corporation during his submissions may not be identical to the bundle in Exhibit W11, but Mr Tomasetti drew attention, e.g., to notes on sheet 2 numbered 1, 2, 16, 17, 23 and 25, and to sheet 9 re mangrove removal requiring Fisheries' approval, sheet 11 re catchment plan (showing footings which would need to be excavated), and sheet 16 re hydrology (all of which sheets are included in Exhibit W11). (The other component of Exhibit W5 is the "missing" sheet 4).

138. On sheet 00, the cover sheet of the "17", received by the Corporation on 29 March 2000, the following "General Notes" appear:

2. The contractor shall locate and level all existing services prior to commencing construction and shall make all necessary arrangements with the relevant authority to relocate or adjust as found necessary.

6. Sediment control measures shall be implemented prior to soil disturbance in keeping with the `Urban Erosion and Sediment Control Manual' of the Soil Conservation Service, `Soil & Water Management for Urban Development' by Department of Housing and to the satisfaction of the engineer and as shown in these drawings.

139. The notes on sheet 2 (date of receipt unclear on the evidence) include the following:

16. Sediment basins shall be maintained for the entire duration of the project or until such time as all disturbed areas are hydromulched with straw-bitumen mulching.

23. Trafalgar, acting as an agent for SEPL, will liaise with the Department of Land and Water Conservation in respect of their requirements concerning earthworks carried out within 40m of tidal waters in connection with this development. Any requirement specified in a permit issued under Part 3A of the Rivers and Foreshores Improvement Act will be implemented.

25. Drainage and sediment control works will be installed as a first step in implementing the works. Temporary erosion control measures will be incorporated at all stages of development. All erosion and sediment control measures will be regularly inspected and maintained in good working condition. Maintenance will be undertaken to ensure that sediment is removed from filter fences, traps and basins before 60% of the available capacity is lost. Control measures will be maintained until all potential for erosion and sediment transport has been removed.

27. During construction and maintenance of the site, stormwater will be directed away from the saltmarsh and mangrove vegetation. Controls will include the construction of swales, contour drains and/or drainage pipes. These control works will direct at gentle grades runoff towards the stormwater channel to the east of the site and Duck River to the west of the site.

140. Sheet 2 bears the engineering certificate, and indicates that the "certifier amendments" were made in August 1999.

141. The Management Plan (Exhibit W3), which was prepared by CH2M Hill, as required by condition 3 of the consent, to develop strategies which would protect the wetland ecosystem, is dated July 1999.

142. It refers to the conditions of consent including the 30m foreshore building line adjacent to the river, the 5m easement for public access along the river's boundary, the 3m easement for public access along the northern boundary, and the 5m easement for drainage purposes on the eastern boundary. It also acknowledges the Corporation's request for 30m/20m/10m riparian zones, or (as Exhibit W3 calls them) "terrestrial buffers", and the Corporation was consulted during its preparation.

143. The document acknowledges the Corporation's concerns, but expresses the view that the 30/20/10 stipulation was not a "riparian zone policy" and was "based on a precautionary principle which was not supported by any stated threats to the long term sustainability of the wetland".

144. It recognises that the management of riverine resources is a shared responsibility across the community and government, but it acknowledges government agencies as the first group responsible. Interestingly, local Councils are not mentioned in the list.

145. The Management Plan provided for the planting of a 15m strip of terrestrial vegetation between the mangroves on the river bank and the security fence line on the north-western boundary. It acknowledged that the 3m easement on the northern boundary should include a swale drain (obviously, therefore, within the statutory 40m) to divert fresh water away from the salt marsh, and that, between that drain and the fence line, there should be plantings as apparently required by condition 20 of development consent 161/98 granted to BP. The consultants recommend the restriction of development on the eastern boundary to the western side of a fence apparently erected 3m within that eastern boundary. The detailed strategy is set out at pp 10-15 of the Exhibit.

146. The Council says it dealt with the development application on the basis upon which it was presented, and that that was all it was obliged to do. The company was perfectly entitled to frame and/or amend its development application in such a way as to avoid any consequences of concern to it, such as the invocation of the integrated development processes, and/or the close involvement of the Corporation from the very start.

147. Council, in its turn, is entitled to rely upon the legal advice it sought on that question and, in any event, it says that it then proceeded to incorporate the Corporation's requirements into its conditions of consent (e.g. it contends that condition 3 was framed to reflect Exhibit W6). Mr Ayling, Counsel for the Council, says that a purposive construction of the Rivers Act leaves only a small window of opportunity for the Corporation to become involved. It has specific duties to perform and it does not have a "general charter" to control development near waterways.

148. Mr Ayling submitted that there was no evidence before the court that:

(i) The company could not achieve its drainage objectives without a Part 3A permit;

(ii) Council had failed to address relevant issues in the appropriate way, or had done anything wrong or unusual in deciding that condition 3 could later be deleted, once a relevant management plan had come into existence; and

(iii) Environmental harm had been caused, was continuing, or would flow from any of the proposed works, pursuant either to the consent or to any orders issued to the companies;

but he acknowledged that the Council may have overlooked the fact that sewerage works would or might take place within the protected lands.

149. Council is, in any event, opposed to the granting of any relief, largely because its consent has been acted upon, linen plans for some of the subdivision have been issued, some blocks have been sold, and Council has been considering and granting relevant development consents (Exhibit C1). The court should not intervene without hearing from affected interests not yet before it.

150. Third party rights and interests will be adversely affected by any injunction to such an extent that the balance of convenience tilts against the Corporation.

151. Dr Flick, SC, Counsel for the companies, sees the whole matter in breathtakingly simplistic terms.

152. He says that across all these proceedings, the only real argument among the parties concerns the width of setbacks from the relevant boundaries. The Corporation wants 30m to the river, 20m to the marsh, and 10m to the mangroves, while the Council wants 15m plus a building setback to the river, 3m to the marsh, and 5m to the mangroves.

153. Further, as there is no evidence of any environmental harm, even if there were some question to be tried, the only issue before the court is "procedural nicety".

154. The court should not intervene because it would preclude the companies from doing works that both the Corporation and the Council deem necessary. The companies' intended works are nearly completed, and they are more than happy to comply with the notices.

155. Any issues that the Corporation may need to raise could easily be added to the proceedings currently fixed for 8-9 May, and those dates should not be vacated. In any event, those proceedings will resolve the Corporation's concerns, and they have already been expedited. Separate trial of issues should be avoided. See Orison Pty Ltd v Strategic Minerals Corporation NL & Ors (1987) 77 ALR 141. (I discussed this court's power to separate questions for determination in Vanmeld Pty Ltd v Fairfield City Council (10081 and 40077 of 1997, 29 May 1998 at pp 12-16).

156. Dr Flick submitted that the Corporation in bringing these proceedings verged on an abuse of the court's process. He said that statutory authorities are supposed to be model litigants and that this one now wants an injunction to stop all work, including some which everyone agrees is necessary. In order to do so, the Corporation has hypocritically attacked its own permit and now brings proceedings urgently, despite its own long delays. If the point it is now raising is good, it must have been good in April 1999, when it accepted that the proposal was not "integrated development", and it certainly must have been good in November 1999, when it had another opportunity to review the position.

157. Dr Flick says that everything about his clients' operations was out in the open and there was no deliberate, or even accidental, subverting of statutory bodies and their responsibilities. The companies were entitled to take the site out of the integrated development regime and the Council went out of its way to get the Corporation to say what it wanted. Consultation continues, but no need arose for any permit under the Rivers Act until late 1999.

158. Like Mr Ayling, Dr Flick submits that the Part 3A powers are confined to conditioning specific works. They are not a general planning brief.

159. Dr Flick submits that the "integrated development" provisions are clearly confined to the original development application and have no bearing at all on the modification application. The company has accepted on both 29 July 1999 and in March 2000 that it would need a 3A permit and has taken steps to obtain them. As a result of the meeting of 29 July 1999, regardless of whose idea it was to change the drainage scheme, significant change was made to the scope of works presented in the original development application.

160. The company has consistently said its proposal did not involve "integrated development" and the Corporation acknowledged in its letter of 3 March 2000 (Exhibit W6) that the proposal could be amended to take it outside the scope of Part 3A. Council and the company both got legal advice on that question.

161. Dr Flick contends that the interlocutory application must fail because:

(ii) the Corporation and Mr Tomasetti cannot make up their mind what order they want;

(iv) the Corporation approaches the court with "unclean hands";

(v) relief will override the rights of persons not yet represented;

(vi) alternative remedies to minimise harm are available, e.g. requiring, and not stopping, work under relevant notices.

162. Any potential harm would be better avoided by allowing the company to get on with obeying the conditions of consent and the various notices and orders to which it has been subjected.

163. The allegation of "unclean hands" is a serious one. Dr Flick relies upon the Corporation's alleged refusal to help the Council in the s 96 appeal. (This allegation is denied, as is the allegation that the Corporation "accepted" that the proposal was not integrated development). The Corporation received "the plans" from the Council, according to Dr Flick, at the time of the development consent. Mr Bourne acted illegally in issuing an oral permit and officers of the Corporation had adequate opportunity to follow-up the site following the development consent and have not done so.

164. Dr Flick also submitted that if the Corporation is to receive the benefit of an injunction, it should give an undertaking as to damages, and, if the injunction is refused, the Corporation should be ordered to pay the companies' costs on an indemnity basis.

165. With great respect to Dr Flick and Mr Ayling, some of their submissions fly in the face of the clear evidence given by Mr Williams.

166. In cross-examination, Williams, who accepted the description that he was a responsible and experienced developer, made several important concessions:

(a) the companies' drainage plans were "concept only" prior to the grant of Council's consent;

(b) any such concepts would always involve moving water away from the centre of the site towards its boundaries;

(c) he was aware of the environmental sensitivity of those boundaries;

(d) he was aware from very early in 1999 that the Corporation desired riparian zones, but the companies opposed them and were keen to avoid them becoming part of the consent, resisting the 30/20/10 scheme advocated by the Corporation;

(e) the works shown in protected lands in doc 6 of Exhibit W1, produced in June 1999, were within his knowledge prior to that date;

(f) the company did not provide the Council, at the time of its consideration of the DA, with several key items, eg. a flood plan, a sediment control plan for the construction phase, details of storm water proposals, and details of inter-allotment drainage; and

(g) he knew all along that excavation of protected lands would be needed for sewerage purposes.

167. Williams relied in his evidence, in order to excuse alleged shortcomings in the companies' works, on the works done by BP, and the fact that his companies' instructions have apparently not been followed by their contractors. Williams said that the only work undertaken within the protected lands, within the knowledge of the companies, was that which was undertaken pursuant to orders from the Council. However, he agreed in cross-examination that no "existing works" had been shown on any of the company's plans to reflect what he now says had been carried out previously by BP.

168. There is before the court no evidence as to any consent, approval or orders given to BP, and no evidence of what, if any, controls were imposed upon their operations on the site during the clearing and remediation phase. These companies took over the site in July 1999 from BP and began their own fill operations.

169. The Corporation is an arm of government which asserts that the matters it has raised in these proceedings are matters of substance, and neither merely questions of procedural nicety, nor an attempt to insist upon certain setbacks. The Corporation may not have a general planning brief, but it has a statutory responsibility to protect waterways and water features.

170. In this case it says that neither of the approvals granted by the Council, and none of the permits or purported permits granted by the Corporation, are valid. The issue among these of greatest importance to the project is the validity of the development consent.

171. Mr Tomasetti contends that the Council was led into error by the way in which the DA was framed and amended, and that, where works in a development application require another approval, the integrated development process simply must be followed or the consent must be refused.

172. The imposition of conditions thought by the Council to be adequate, cannot lift a project that is properly characterised as "integrated development" out of the need for it to be assessed and determined in accordance with that statutory process. The Council should have been able to see quite clearly, and should have said to the proponent, that there was work inevitably required (and probably contemplated) by the proponent which fell within the purview of s 22B of the Rivers Act.

173. In failing to deal with the matter in this correct way, the will of the Parliament was frustrated. That will is expressed in provisions which require that any legitimate concerns and requirements of another approval body must be incorporated by Councils (as consent authorities) in the appropriate consent. Exhibit W6 makes clear that if that had happened in this case, the subdivision would have been substantially different from that which was approved and is currently under construction.

174. The Statement of Environmental Effects showed that the development application was indeed "integrated development", but a flurry and exchanging of legal advice followed, and the company withdrew from the original application issues regarding removal and replacement of fill. Neither in its original application, nor in its amended version, did the company say that it would be proceeding by adapting, in terms of its relevant works, any works that BP had already done.

175. Exhibit W3 (the CH2M Hill Report) makes no reference to BP having set up some of the work proposed, and/or relied upon, by the company, although it refers (at p 9) to a condition imposed upon DA 161/98 requiring planting between a drain and the northern fence line.

176. Mr Tomasetti submits that, as the underpinning consent is invalid, no work should go on without the leave of the court. Such leave could be granted if works were, for example, necessary to protect the environment following a storm, etc.

177. On 10-11 March 2000, when, it is alleged, sediment escaped to the wetlands in heavy rain and emergency works were considered necessary, those works included additional sediment ponding, etc., matters which Counsel for the Corporation submits should have been addressed at the consent stage in discussion between Council and the Corporation.

178. It is further argued by Counsel for the Corporation, that the aim of the modification application was to delete the need for the Corporation to be heavily involved, let alone to consent, to works being approved and/or carried out in the protected land. The Management Plan envisaged by the original condition 3 should have been available to all relevant authorities at the time of considering the very question of development consent.

179. Mr Bourne made clear in his cross-examination that he was not personally "intimately" involved in ongoing negotiations with the companies and the Council. The Corporation had been seriously involved for periods of time, but then things would "go quiet". In those times it reviewed information provided to it, but did not initiate any action. It awaited approaches for permits, relying upon the Council (and presumably the company) to "do the right thing" when the need arose.

180. He conceded that the changes made in July 1999 were significant. The outcome would be better environmentally and erosion would be avoided, so the Corporation supported the changes, even if it did not suggest them.

181. He made clear that the acknowledgment by the Department that the DA could be amended to render it not "integrated development" was not a concession that the DA as amended was not, in fact, "integrated development".

182. The 30/20/10 scheme has been the Corporation's preferred position, in cases such as this, since 1992, according to Mr Bourne's evidence (cf the CH2M Hill assertion, noted in par 143 above).

183. From the above factual analysis I have come to the conclusion that the following ten propositions emerge as at least arguable by the Corporation in support of the interlocutory and consequential relief it has sought from the court at this stage:

1. Properly construed, the "integrated development" provisions of the EP&A Act, and the related amendment made to the Rivers Act, mean that any development consent, modification approval, or Part 3A permit, issued outside of the integrated development scheme, when the proposals involved should properly have been dealt with under that scheme, will be void or invalid.

2. Properly viewed, the development application, even as amended prior to consent being granted on 27 April 1999, consisted of "integrated development", and should have been dealt with in accordance with those provisions of the EP&A Act.

3. Properly viewed, the modification application, even as amended in about October 1999, consisted of "integrated development" and should have been dealt with in accordance with those provisions of the EP&A Act.

4. The various works included in the applications for Part 3A permits are also appropriately characterised as "integrated development" and, as such, at least those included in the application dated 25 January 2000, should have been dealt with in accordance with those provisions of the EP&A Act.

5. In the absence of a consent for integrated development, works done on the site of 83 Derby Street, Silverwater are unlawful, having been carried out in breach of the EP&A Act.

6. Even though Williams conceded in cross-examination that a lot of detail was not provided, either at all, or in a timely way, to the Council, the Companies knew, and say that they provided to the Council, information which, the Corporation submits, made, or should have made, clear to the Council, at all material times, that works proposed for the site would necessarily be carried out partly in/on/ under protected lands, such as to enliven the provisions of Part 3A of the Rivers Act. Accordingly, Council's decision to accept advice that the proposal was not "integrated development" was an error of such nature and magnitude as to render void both its consent, and its approval of a modification thereof.

7. The Corporation has no statutory power to issue an oral permit under par 3A of the Rivers Act, even in emergency circumstances.

8. Some of the conditions attached to the consent, the approval, and some attached to the Part 3A permit(s), infringe the principles in Mison, in that they defer substantial matters for later determination, and/or are too uncertain.

9. In attempting to accommodate comments made by the Corporation, the Council, in reaching its decisions and imposing its conditions, usurped the Corporation's statutory role in determining, particularly as a participant in the integrated development processes now provided in the EP&A Act, how best to protect the river and associated tidal features.

10. Had the appropriate processes been followed, the subdivision which resulted would probably be quite different from that which is now under construction.

184. I have, therefore, concluded that there is a range of serious issues to be tried in matter 40055, such that there is at least a prima facie case made out for interlocutory relief to be granted.

185. The critical question now before the court is whether interlocutory relief should be granted, and, if so, what relief, and on what terms.

186. At the end of the day, the court must acknowledge that the "public interest" is wider than the interests of those who rely upon consents to do works, or those who buy and develop property in reliance, at least in part, upon such consents.

187. In this case, some of the works done may well be found, at the end of the day, to be acceptable, even desirable, but the Corporation asserts, and the court would normally take the view, that the relevant law must be obeyed.

188. In Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council & Ors (1980) 44 LGRA 346, Wilson J, one of the majority judges in the High Court, said (at p 370-371):

... Substantial compliance with the Act and ordinances is a condition precedent to jurisdiction to grant consent ....

The imperative underlying my conclusion in this matter is the importance of a faithful adherence to the provisions of the Act and ordinances so that the interests of all parties concerned with an application under that legislation are protected. Allegations were made in this case that the contents of the appellant's application and advertisements were likely to mislead the public as to the appellant's intentions with respect to the removal of metal from the quarry. There will be less room for ignorance or misunderstanding of an application once it is accepted that an applicant for consent to use land for a particular purpose must frame his application so that it reveals the extent and nature of those land uses which are matters of substance and are incidental to and necessarily associated with the primary use.

189. The principles of jurisdictional fact have been discussed recently by the NSW Court of Appeal, notably in Helman v Byron Shire Council & Anor (1995) 87 LGERA 349, and in Timbarra Protection Coalition Inc v Ross Mining NL & Ors [1999] NSWCA 8; (1999) 102 LGERA 52 (see especially the judgment of Handley JA in Helman, at 354-360, where he applied the principles in Tasker v Fulwood [1978] 1 NSWLR 20 at 23-24. The reasoning in Tasker was adopted by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 72 ALJR 841 at 842, 860-861 (par 93)).

190. I have come to the preliminary conclusion that there is a serious question to be tried on whether it was a purpose of the amending EP&A legislation, which introduced the integrated development provisions, that any act done in breach of those provisions will be held to be invalid. This preliminary view is reached on the basis of the provisions of s 91A(4), which uses the term "must refuse".

191. As a result of the November 1999 approval of the modification application, the Management Plan (Exhibit W3) is no longer a condition of the consent and the Corporation has effectively been taken "out of the loop". The Management Plan on its face indicates works within the protected lands. Had it been available at the time of the granting of development consent, it would have clearly shown the Council that such works were involved in the development. Also doc 6 of Exhibit W1 should probably have been with the original development application.

192. It was always self-evidently logical to put the drainage at the boundaries and, therefore, within the prescribed lands, and it is clear from the evidence that the fill was always to go up to the relevant boundaries.

193. The Corporation had expressed its concerns on 5 August 1999 (doc 10 of Exhibit W1) and its recommendations should probably have been part of the consent itself. The Corporation appears to have relied upon the Council enforcing its conditions.

194. The balancing of the entitlement to constrict the proposal submitted to the Council, and the obligation to disclose what works are known to be actually involved in the proposal submitted, must also be a live issue for the substantive proceedings.

195. There is also a serious question to be tried as to whether s 22C(3A) of the Rivers Act has the effect, in the circumstances of this case, of requiring any permit under Part 3A of the Act to be issued through the integrated development processes of the EP&A Act, or be held to be invalid.

196. The principles adopted by the Court of Appeal in Mison are now well known and frequently applied in the court, eg. in cases such as Scott & Ors v Wollongong City Council & Anor (1992) 75 LGRA 112, drawing as they do on principles adopted elsewhere (eg. Wells J in Corporation of the City of Unley v Claude Neon Ltd (1983) 49 LGRA 65 at 68), and often in the context of the enactment of the old s 91AA (now s 80(3)) and its impact on issues of certainty and finality. (See e.g. comments of Talbot J at p 9 of his judgment in Remath Investments No.6 Pty Ltd v Botany Bay City Council (No.2) (10649 of 1996, 11 December 1996)). I myself considered the authorities on such questions of finality, certainty and deferred commencement in Tier Consulting Group Pty Ltd v Blue Mountains City Council (1998) 99 LGERA 31, and Helman is also relevant on this point.

197. I have, therefore, concluded that there is also a serious question to be tried in respect of the Mison principles, and their application to this matter, certainly to the conditions of consent attaching to the development consent, and also a serious question to be tried on the question of whether those Mison principles should be applied to any permit issued under Part 3A of the Rivers Act.

198. It is arguable that some of the conditions attached to the various consents and approvals in this matter defer essential matters, and/or could be seen to be uncertain, and/or indicate quite clearly, that the Council must, or should at the time, have realised that there were works proposed for this site which required approval under Part 3A. In this particular regard, Counsel for the Corporation refers especially to conditions 20, 26 and 29 of the consent. Mr Tomasetti would also apply Mison to the VMP conditions attached to the Part 3A permit and conditions 1, 5, 10, 12, 15, and 19-24 thereof.

199. The Corporation goes on to submit that, even if the consent were found to be valid, the companies have clearly breached some of its conditions, notably 29, 30 and 32. The Corporation complains that the Council has not taken any action in respect of these alleged breaches and has allowed works to be done contrary to the Rivers Act.

200. On their face, the conditions of consent would appear to require various things to be done first in priority, and not to be built up gradually during other development works, as Mr Williams contends.

201. Mr Tomasetti has further submitted that there is no provision in the Rivers Act for an oral permit. Mr Ayling was prepared to allow that there may be no proscription of such an oral permit, despite s 22C(1)(a) speaking of "form", but it is noteworthy that the Corporation has not yet adopted Bourne's decision to issue the oral permit by responding to the written application made by the company for that permit to be issued retrospectively, and I think the validity of that permit is also a serious question to be tried.

202. Dr Flick raised questions of "clean hands", and in assessing the issues the court must have "even hands" as well.

203. Mr Tomasetti acknowledges the rights of other persons who already hold consents for parts of Stage 1 of the subdivision, and acknowledges that they will be occasioned some inconvenience, as will the companies, if an injunction is granted. However, he submits that allowing any further sales and development work on the land may complicate the situations of all concerned.

204. If I were not satisfied that some environmental harm may well have occurred and that some further harm is possible, I would be reluctant to grant the injunction. However, the evidence before the court indicates quite clearly that some environmental harm may already have occurred, through whatever cause, and with such large earthworks being carried out, harm is certainly possible. In this regard reference should be had to documents 12-16 of Exhibit W1, in addition to the photographs in Exhibit W12 (which were taken on 21 March 2000) and those in Exhibit W8 (which were taken on 11 April 2000).

205. Those materials are certainly suggestive of the risk, if not the fact, of environmental harm, and are also probative in their own way of works having been carried out within the 40m protected lands limit. In his evidence regarding Exhibit W9, Bourne testified - as also did Forwood - to having seen a log retaining wall constructed in or near the eastern drain within 40m of the mangrove area.

206. Bearing all that in mind, I have come to the view that the consequences of refusing interlocutory relief in this case may well be substantially outweighed by the consequences of granting it. See North Coast, and also Silktone Pty Ltd v Devreal Pty Ltd & Ors (1990) 21 NSWLR 317 (at 320ff) where Kirby P recognised the inevitable impact of injunctions upon innocent third parties (and upon the public generally).

207. Turning to the question of whether the court should in its discretion refuse the relief, I note the state of "completion" of the works, the works required of the companies, and the negotiations that have taken place between the parties, as evidenced by the letters annexed as annexures "I" - "N" to Williams' affidavit dated 11 April, being correspondence between the Corporation and the solicitors for the companies between 29 March and 5 April 2000. I do not deal with them in detail, but the parties should note that the court has had regard to them in the context of whether or not to refuse the injunction in the exercise of its discretion.

208. Having regard to the orders that I have decided to make in this matter, I can only suggest that the parties continue to confer, and perhaps involve other interested parties such as the Environmental Protection Authority, which the Council has already consulted, in order to find a solution to the very perplexing position in which all involved will now find themselves. In this regard, I respectfully draw the parties' attention to the provisions of Part 5A of the Land & Environment Court Act which, in its present form, requires that all parties consent to any mediation (s 61D(1)(b)).

209. Annexure "N" draws attention in par 4 to the "real impact" of a refusal by the Corporation to allow works to proceed. Reference is made to the detailed comments in Williams' affidavit and to the contention that the Corporation's refusal to allow works to proceed, gives rise to "greater environmental risk to runoff to the Duck River, the protection of which should be paramount to your Department's consideration".

210. On the question of discretion, the company asserts the right to constrict its proposal to take it outside the "integrated development" guidelines. It relies upon work which it infers may have been done contrary to the strict instructions given to contractors (par 19, affidavit 11 April 2000). It suggests that the features complained of by Corporation witnesses may be exaggerated in their evidence. It relies on the construction of sedimentation centres during 1998 and 1999 presumably at least partly the responsibility of BP and says that some of the complaints made on the basis of doc 12 of Exhibit W1 may have been "done in conjunction with the erection of the sedimentation fence". Williams says that he has been "in frequent telephone and direct communication with Mr Bourne" from about March and/or July 1999 and, that at no time "apart from 21 February 2000 did Mr Bourne indicate to me that he considered any of the works undertaken to date, of which he was fully aware, were illegal and at no time did he suggest that any of the work should stop" (par 21, affidavit 11 April).

211. Williams says (par 9, affidavit 11 April) that doc 5.3 of Exhibit W1 should not be inferred to have been held back from the Corporation. "This plan is essentially the same as the plan which accompanied the development application which was forwarded to DLWC by Auburn Council in early 1999. I include this paragraph to correct any inaccurate impression that might otherwise be obtained that DLWC did not know what was proposed until April 2000". [This is directly contrary to the sworn evidence of Grose]. The company and the Council agreed to disagree regarding the order of events as testified by their respective witnesses, but Ms Grose was not required for cross-examination in respect of her assertion of lack of information, especially in early 1999.

212. In his affidavit of 12 April, Williams reasserts that Silverwater has "not authorised any work in the Protected Zone, with the exception of the emergency works detailed above which were carried out in compliance with Clean-up Notices issued by Auburn Municipal Council". (par 7). He goes on to say that the company "does not propose to authorise any of the works set out in the Application for a Part 3A Permit lodged on 25 January 2000, or any other works in the Protected Zone, until such works are authorised under a valid permit". He swears (in par 9, affidavit 12 April), following oral evidence given by Paul Bourne on that date in respect of photographs taken the previous day, that any works that are asserted by Bourne to have been carried out after 1 March 2000 would be "works which were carried out in compliance with the Clean-up Notice issued by Auburn Council, and for which we had obtained verbal authorisation from Paul Bourne".

213. I have also taken into account the practical difficulties an injunction will cause to the companies (see, eg., par 87 above).

214. In response to Dr Flick's defence of delay on the part of the Corporation, Mr Tomasetti says that condition 3, as it stood prior to the modification application, even if it were invalid, was seen to protect the Corporation's interests. It remained in force until November 1999.

215. Contrary to Dr Flick's assertion, the Corporation says it has not been kept fully informed of developments on this site. Williams admitted sidelining the Corporation (see affidavit 11 April 2000 pars 4-6, and 12)., and the companies knew they would be excavating for sewer pipes and told neither the Council nor the Corporation.

216. Document 5.1 of Exhibit W1 put the Corporation's position, but the company did not reveal its plans (See Grose pars 23ff and especially 30-31), and the Corporation, rightly or wrongly, relied on Council to protect the river and environs until matters "came to a head" with the storm event on 10-11 March 2000 and what followed it.

217. I am not satisfied that the Corporation lacks "clean hands".

218. For its part, the company delayed from July 1999 until January 2000 making its application for the requisite Part 3A permit, and whenever statutory decisions take a little longer than it would like, proceedings are commenced in this court.

219. In respect of the assertion by Dr Flick that the application for interlocutory relief should be dismissed because of the imprecision on the part of the Corporation in specifying what order it is actually seeking, Mr Tomasetti relies upon Blacktown Municipal Council v Friend & Ors (1974) 29 LGRA 192 (a first instance case of Mahoney J) in which (at 201) His Honour said:

I come now to consider what order should be made. Mr Waddell in his address indicated that the council did not feel able to oppose an order that the operation of any injunction granted should be suspended for a period up to one year. It is important in my view that if an injunction is to be granted it should be of such a form as will proscribe any use of the land which is contrary to the ordinance. However, it may be desired that the terms of the injunction deal in detail with the nature of the activities to be proscribed in order, for example, to prevent further litigation arising from arguments as to whether an injunction in general terms covers the precise activities carried on. I will therefore allow the parties to consider the precise form of the injunction to be granted and, if it is desired, to bring in appropriate agreed minutes for my consideration.

220. Dr Flick sought an undertaking as to damages but none was offered. I have considered that circumstance in coming to my conclusions, and I rely on the reasoning of Cripps J in Ross v State Rail Authority & Ors (1987) 70 LGRA 91.

221. In support of his submission that further hearing of matters 40033 and 10250 would involve the court in dealing with hypothetical matters while ever the development consent is under active challenge, Mr Tomasetti relies upon Attorney General for Ontario v Hamilton Street Railway Company & Ors [1903] AC 524 where the Privy Council said, through the Lord Chancellor, (at 529):

With regard to the remaining questions, which it has been suggested should be reserved for further argument, their Lordships are of opinion that it would be inexpedient and contrary to the established practice of this Board to attempt to give any judicial opinion upon those questions. They are questions proper to be considered in concrete cases only; and opinions expressed upon the operation of the sections referred to, and the extent to which they are applicable, would be worthless for many reasons. They would be worthless as being speculative opinions on hypothetical questions. It would be contrary to principle, inconvenient, and inexpedient that opinions should be given upon such questions at all. When they arise, they must arise in concrete cases, involving private rights; and it would be extremely unwise for any judicial tribunal to attempt beforehand to exhaust all possible cases and facts which might occur to qualify, cut down, and override the operation of particular words when the concrete case is not before it.

222. Similar principles were expressed by the full court of the Supreme Court of Victoria in Swift Australian Co (Pty) Ltd v South British Insurance Co Ltd [1970] VicRp 47; [1970] VR 368 at 369, by the NSW Court of Appeal in Sanderson Computers Pty Ltd v Urica Library Systems BV (1998) 44 NSWLR 73, and by the Chief Judge of this court in Klefend Pty Ltd v Santom Pty Ltd & Anor (1994) 88 LGERA 307 at 310-314, where Her Honour reviewed the relevant cases.

223. I am content to follow those principles here, with the result that the further disposition of matters 40033 and 10250, and probably also 10276 and 10074, should abide the outcome of 40055.

224. As the validity of statutory decisions by the Corporation and the Council is a "given" in all four of the other proceedings currently before the court:

1. The hearing dates 8-9 May for matters 40033 and 10250 should be vacated;

2. The hearing of 40055 should be expedited in view of the obvious urgency of deciding if the consents, approvals and permits involved are valid or invalid; and

3. The hearing dates 25-28 June may have to be reviewed when the expedited hearing of 40055 has been concluded, in case judgment is reserved and not delivered until too close to those dates.

225. It is clear, therefore, from what I have written, that I have determined that I should order that all further work on the subject site cease forthwith, until further order.

226. I grant liberty to all parties to this litigation to apply on 24 hours notice to restore any of these five matters to the list, but all five should remain associated in the court's lists until the issues in matter 40055 of 2000 have been determined.

227. The hearing of matter 40055 is expedited, and the parties have the court's leave to approach the Registrar forthwith to fix the hearing of that matter and make further directions in regard to it. The applicant in 40055 is directed to file and serve its foreshadowed amended Class 4 application by 12 noon on Wednesday 19 April 200 and a formal Points of Claim document within seven days thereafter.

228. I invite the parties to now confer with a view to reaching agreement on Short Minutes of Order which would vary the order referred to in par 225 above to the effect that specified works, agreed by them to be necessary, given the state of the site, the works thereon, and the various statutory orders, notices, etc. served on the companies in recent times, might be carried out with the approval of the court. I am conscious of the fact that the works required may otherwise require development consent and/or further Part 3A permit(s).

229. The parties should, in any event, bring in Short Minutes of Order to reflect this concluding section of this judgment.

230. The joint hearing of matters 40033 of 2000 and 10250 of 2000, currently fixed for 8-9 May is vacated; and the directions therein are suspended until further order. As requested by Ms Berglund on the companies' behalf this morning, the Registrar will reserve those dates pending any appeal against this decision. In the meantime, the name of the applicant in 40033 and the respondent in 10250 are amended to "Water Administration Ministerial Corporation".

231. Further consideration will need to be given to the arrangements already made for the hearing together of matters 10276 of 2000 and 10764 of 2000 on 26-28 June 2000, in the light of this judgment and the further disposition of matter 40055. This will be facilitated by the five matters "running" together in the court's lists.

233. All the exhibits will be retained by the court for a period of 10 days and then may be collected by the parties from the Registry.