Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd

Land and Environment Court (NSW)|2011-07-21|Before: Pepper J

Barrington-Gloucester-Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure [2012] NSWLEC 197

Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404

Blacktown City Council v Pace [2002] NSWLEC 142; (2002) 121 LGERA 432

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294

Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400

Council of the City of Sydney v Mae [2009] NSWLEC 84

CTI Joint Venture Company Pty Ltd v CRI Chatswood Pty Ltd (In Liq) (Receivers and Managers Appointed) (No 3) [2012] NSWLEC 6

Department of Environment and Climate Change v Olmwood Pty Ltd [2010] NSWLEC 15; (2010) 173 LGERA 366

Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232; (2009) 172 LGERA 225

Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 2) [2010] NSWLEC 73

Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229

Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118

Environment Protection Authority v Hardt [2006] NSWLEC 438; (2006) 148 LGERA 61

Environment Protection Authority v HTT Huntley Heritage Pty Ltd [2003] NSWLEC 76; (2003) 125 LGERA 332

Environment Protection Authority v Multiplex Constructions Pty Ltd [2000] NSWLEC 6; (2000) 112 LGERA 1

Environment Protection Authority v Shannongrove Pty Ltd [2010] NSWLEC 162; (2010) 176 LGERA 31

Environment Protection Authority v Terrace Earthmoving Pty Ltd [2012] NSWLEC 216

Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157

Gosford City Council v Verde Terra Pty Ltd (No 2) [2013] NSWLEC 62

Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1

Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6

Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472

Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270

Marrickville Council v Tanwar Enterprises Pty Ltd [2009] NSWLEC 127

Moore v Yarrowlumla Shire Council [2002] NSWLEC 62; (2002) 120 LGERA 109

Penrith City Council v Waste Management Authority (1990) 71 LGRA 376

Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305

Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529

Silverwater Estate Pty Ltd v Auburn Council [2001] NSWLEC 60

Simpson v Wakool Shire Council [2012] NSWLEC 163; (2012) 190 LGERA 143

Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1

Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256

Tynan v Meharg [1998] NSWSC 592; (1998) 101 LGERA 255

Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change and Water [2012] NSWCCA 210; (2012) 82 NSWLR 12

Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245

Wilkie v Blacktown City Council [2002] NSWCA 284; (2002) 121 LGERA 444

Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 Category: Principal judgment Parties: 40578 of 2010 Wollondilly Shire Council (Applicant) Foxman Environmental Development Services Pty Ltd (First Respondent) Phillip Foxman (Second Respondent) Botany Building Recyclers Pty Ltd (Third Respondent) Craig Hardy (Fourth Respondent)

40062 of 2011 Foxman Environmental Development Services Pty Ltd (Applicant) Wollondilly Shire Council (Respondent) Representation: 40578 of 2010 Mr T Howard (Applicant) Mr P Clay with Mr M Seymour (First, Second and Third Respondents) Mr A Hudson (Solicitor) (Fourth Respondent)

40062 of 2011 Mr P Clay with Mr M Seymour (Applicant) Mr T Howard (Respondent) 40578 of 2010 Hones La Hood (Applicant) Whittens Lawyers (First, Second and Third Respondents) Wilshire Webb Staunton Beattie Lawyers (Fourth Respondent)

40062 of 2011 Whittens Lawyers (Applicant) Hones La Hood (Respondent) File Number(s): 40062 of 2011 and 40578 of 2010

Index Topic Paragraph Number The Foxman Entities Engage in Clearing and the Placement of Fill on Land [1] The 2010 Proceedings: Breach of the EPAA, the POEOA and the WMA [5] The 26 May 2010 Meeting [92] Attempts at Resolution with the Council [96] Evidence of the Foxman Entities [101] Summary of the Works Carried Out on the Land [102] The Council's Contentions [104] Regulatory Framework [109] POEOA [109] WMA [133] EPAA and the EPA Regulations [138] Surveying Evidence [141] Environmental Engineering Evidence [146] Town Planning Evidence [154] Geotechnical Evidence [165] Ecological Evidence [181] Contraventions of the EPAA, the POEOA and the WMA [186] Which Foxman Entity is Liable [186] Breach of the POEOA [191] The Fill Material is "Waste" [192] The Waste Exemptions Do Not Apply [212] The Land Was Used as a "Waste Facility" [224] Breach of s 143 of the POEOA [226] Which Foxman Entity Transports Waste to the Land [228] The Land Cannot Lawfully be Used as a Waste Facility [244] Breach of s 144 of the POEOA [246] Breach of s 142A of the POEOA [250] Breach of s 120 of the POEOA [254] Summary of Findings Under the POEOA [258] Breach of the WMA [259] Breach of the EPAA [263] The Works Constituted "Filling" and a "Land Filling Operation" [264] The Works Constituted the Use of the Land as a "Waste Management Facility or Works" [267] Discretion to Declare, Restrain and Remedy [273] The Declarations Sought Ought to be Made [274] The Injunctive and Remedial Relief Sought Ought to be Made [280] The 2011 Proceedings: Designated Development [291] The Statutory Framework [299] The Proposed Development is "Designated Development" [304] Costs [309] Orders [310]

The Foxman Entities Engage in Clearing and the Placement of Fill on Land 1By amended summons filed 8 October 2010, Wollondilly Shire Council ("the council") seeks various relief against the respondents under s 124 of the Environmental Planning and Assessment Act 1979 ("the EPAA"); under s 252 of the Protection of the Environment Operations Act 1997 ("the POEOA"); and similarly under s 336 of the Water Management Act 2000 ("the WMA"). The relief sought is for declaratory and injunctive relief pursuant to breaches of the enactments referred to above, together with orders for remediation. 2In short, the breaches arise from the unlawful deposit of a considerable amount of material, in part contaminated with asbestos and lead, on land by way of fill. The council seeks the removal of all unlawfully deposited material. The respondents contend that "far less drastic" orders can be made by the Court to appropriately remedy or restrain any breaches of the law, namely, removal of only part of the fill material and the establishment of environmental protocols for the retention and management of the remainder of the fill. 3The first respondent to those proceedings ("the 2010 proceedings"), Foxman Environmental Development Services Pty Ltd ("Foxman"), is the applicant in the related proceedings that were commenced by summons on 25 January 2011 ("the 2011 proceedings") and were heard concurrently with those commenced by the council. In the 2011 proceedings, Foxman seeks declaratory relief that the development the subject of both proceedings is not "designated development" as defined in the EPAA and the Environmental Planning and Assessment Regulation 2000 ("the EPA Regulations"). 4During the course of the hearing it became apparent that the evidence of both parties had not been finalised. Thus various expert reports were served late or, in respect of some of the joint expert reports, not at all, with further testing, conferencing and reporting required during the course of the proceedings. The overall result was, from the Court's perspective, disjointed. For example, eight sets of submissions were served, applications to reopen were made during closing submissions and after the judgment had been reserved, a strike out application was made and abandoned during final addresses and allegations of trial by ambush were levelled. In hindsight, the hearing ought to have been adjourned until such time as the evidence had been completed and the matter was ready to proceed. Having said this, however, this in no way excuses the excessive delay in the delivery of this judgment. Finally, I note in passing that after the findings and reasons in this judgment had been written, but prior to the judgment's publication, an article concerning the case appeared in The Sun-Herald. The article has had no bearing on the outcome of the proceedings nor on any of the findings made or opinions expressed.

The 2010 Proceedings: Breach of the EPAA, the POEOA and the WMA 5Due to the discretionary nature of the relief sought and the contest surrounding its scope, it is necessary to set out the facts in these proceedings in considerable detail. The facts, as found below, were contained in various affidavits, expert ecological, engineering, geotechnical and town planning evidence, bundles and supplementary bundles of documents, maps, plans and photographs and, eventually, a short agreed statement of facts. 6Foxman is the registered proprietor of land comprising Lot 733 in DP811421, known as 35 Evelyns Range Road, The Oaks ("the land"). The land is approximately 76ha in area. 7The second respondent, Mr Phillip Foxman, is the sole director of Foxman and is the sole director of the third respondent, Botany Building Recyclers Pty Ltd ("BBR"). In this judgment the respondents will be collectively referred to as the "Foxman entities". 8Mr Foxman is also the sole director of both Foxy's Transport Pty Ltd ("Foxy's") and Foxman Holdings Pty Ltd ("Foxman Holdings"). 9BBR operates a waste storage and processing facility on land comprising Lot 8 in DP11235, Lot 9 in DP651995 and Lots 110 and 111 in DP131166, known as 38 McPherson Street, Banksmeadow ("the Banksmeadow Waste Facility"). 10The Banksmeadow Waste Facility has been operating since 1990. From 1990 until 1997 BBR operated the Facility and in 1997 Foxman Holdings (the owner of the land upon which the Facility operates) leased the Facility to Collex for a 10 year term expiring in 2007. Collex operated the Banksmeadow Waste Facility under the authority of its own environment protection licence during the period of the lease. After the lease expired, Collex surrendered its licence in 2007 and BBR resumed operation of the Banksmeadow Waste Facility. 11BBR operates the Banksmeadow Waste Facility pursuant to environment protection licence no 12857 issued by the Environment Protection Authority ("the EPA") under the POEOA ("the EPL"). 12The scheduled activities authorised to be carried out under the EPL include "waste storage" and "waste processing (non-thermal treatment)". 13It was common ground, however, that there was no licence in force under the POEOA permitting the carrying out of any relevant scheduled activities under that Act on the land by any of the Foxman entities. 14Under the EPL, BBR is authorised to store and process certain classes of "general solid waste (non-putrescible)" as defined in the POEOA and the then Department of Environment and Climate Change's ("DECC") Waste Classification Guidelines (revised in December 2009). This includes building and demolition waste such as brick concrete, soil, paper, plastics, glass, metal, timber as well as excavated natural material and asphalt waste. 15The EPL was subject to conditions, one of which was condition L5.4.1, which stated: There shall not be more than 10,000 cubic metres or 20,000 tonnes, whichever is the lesser, of waste and/or processed material on the premises at any time. 16The land is land to which the Sydney Regional Environmental Plan No 20 ("SREP 20") applies. Under SREP 20 the "filling" of land is permissible only with development consent. Clause 11 of SREP 20 provides: Filling Definition: Filling of land, including submerged aquatic land, by raising the ground level through disposal of spoil from any landfill method (such as mining, dredging or refuse dumping), whether or not to enable the construction of a road or the erection of buildings or pylons or any other structure, where filling exceeds 1 metre in depth, or an area of 100 square metres. 17The land is also land to which the Wollondilly Local Environmental Plan 1991 ("the WLEP") applies. Under the WLEP the land is zoned 1(b) Agricultural Landscape Zone. Under the WLEP a "land filling operation", as defined, is permissible only with development consent within the 1(b) Zone. The term is defined in cl 6 to mean "any work or other activity on land for any purpose which has the effect of materially altering the shape or material form of the land." 18On 30 July 2008 BBR wrote to the council seeking advice as to what activities were permissible with and without consent on the land. In particular it inquired wether the construction of internal access roads was exempt, complying development or required development consent. It asked whether the development of the land for a golf course, either public or private was permissible. 19On 6 August 2008 the council responded. Relevantly, in relation to land filling, it quoted the definition of "land filling operation" in the WLEP and noted that land filling operations required consent under that instrument. Consent was also required for the purpose of land filling under the provisions of the SREP 20. Further, the construction of internal access roads required consent and was not exempt or complying development. The council noted that the land contained a number of waterways. 20The council's response promoted an email exchange between the General Manager of BBR, Mr Joe Scimone, and Mr Chris Hammersley, the Strategic Manager at TCG Planning and Environment Urban Design ("TCG Planning"). The email referred to the construction of a golf course, either public or private, on the land. 21Another email exchange between Mr Hammersley and Mr Scimone took place on that day concerning the development of the golf course. From the email exchange it appears that what was envisaged was that the site would be a staged development with the final outcome the creation of the golf course. Stage 1 was described as "being a land fill site". Mr Hammersley asked Mr Scimone what volumes of fill and types of fill it was anticipated would be placed on the site. This was in response to Mr Scimone indicating that (emphasis added) "the site will need significant filling and reshaping. The proposal does not rely upon any residential component, except for a single dwelling for the caretaker. I believe that a single dwelling is permissible with consent". 22This prompted Mr Hammersley to email Mr Scimone with legislative extracts concerning "waste management facilities or works". 23On 12 August 2008 TCG Planning sent a fee proposal to BBR in respect of a "brief". The brief was described as a staged development with the preparation of two planning reports to accompany two development applications. The first development application was for a single dwelling house including internal access road construction. The second application was for a proposed private/public golf course "(resulting from land fill)" on the land. The brief noted that a development application would be required for "the single dwelling house and internal access roads". It also stated that a development application would be required for landfill and the golf course. The fee proposal noted that the use of the site for the purpose of a landfill may constitute "designated development" in which "waste management facilities or works" are defined in the relevant legislation and would require an environmental impact statement. This was due to the potential quantity of land fill and the proximity of the development to a watercourse. The fee proposal noted that BBR had advised that it was BBR's intent that the material used in filling and reshaping the land would meet various waste exemptions. 24On 2 September 2008 Mr Scimone sent through to Mr Henry Moore at the EPA a draft set of chemical and other material criteria. The material was to be used in construction as "select fill". The material showed high levels of, amongst other things, lead. 25From mid to late November 2008 correspondence passed between Mr Ryan Smithers of BES Bushfire + Environmental Services ("BES") and Mr Hammersley at TCG Planning. On 20 November 2008 an email between Mr Smithers and Mr Hammersley discussed the substantial ecological constraints on the property by reason of the presence of endangered ecological communities ("EECs") specifically Cumberland Plain Woodland and Western Sydney Dry Rainforest. A map indicating the presence of the EECs was attached. 26On 24 November 2008 an email was sent from Mr Hammersley to Mr Smithers. In it Mr Hammersley stated that his "client" was concerned about "an internal road layout". Mr Hammersley expressed the disappointment on behalf of his clients that "the entire site appears to be listed as an EEC and there are no alternative solutions which could be considered to allow for some access". Mr Hammersley reiterated that the main objective of developing this site "for the dwelling house is to allow some access roads within the site". On 27 November 2008 a phone call log was generated in relation to a conversation between Mr Scimone and Mr Smithers. The log reports the following "advised Ryan the need for road as part of DA - ie linked to waste disposal". 27On 10 December 2008 BBR made representations to DECC that it should grant a new general exemption under Pt 6 cls 51 and 51A of the Protection of the Environment Operations (Waste) Regulation 2005 ("the POEO Waste Regulations") separate to the published and applicable exemptions, namely, The recovered aggregate exemption 2008 and The recovered fines exemption 2008. BBR proposed that this new exemption would apply to substances processed from waste if the material met threshold specifications that were more tolerant with respect to the presence of certain contaminants and foreign materials than the specifications that applied under the exemptions referred to above. 28On or about 12 January 2009 Mr Foxman lodged a development application with the council seeking development consent to "build a home/dwelling and infrastructure, formalisation of existing trails and bushfire management" ("the DA"). The DA comprised: (a) the DA form; (b) the assessment fee; (c) the authority from the then owners of the land; (d) plans for the dwelling house prepared by Wilk & Partners ("the plans"); (e) a Statement of Environmental Effects prepared by TCG Planning dated 22 December 2008 ("the 2008 SEE"); (f) a flora and fauna assessment report prepared by BES dated December 2008 ("the Flora and Fauna Report"); (g) a bushfire protection assessment report prepared by BES dated December 2008 ("the Bushfire Report"); and (h) a BASIX Certificate no 229582S dated 7 January 2009. 29By notice of determination dated 16 March 2009, the council determined the DA by the granting of development consent, subject to conditions, for a "single storey dwelling, detached garage, pool, spa, water tanks and fire trail" ("the 2009 consent", emphasis added). 30Conditions 1(1) and 1(2) of the 2009 consent were as follows: Development consent is granted for Single Storey dwelling, detached garaged. Swimming pool, water tank and fire trail at Lot:733 DP:811421, No 35 Evelyns Road THE OAKS The applicant is informed that this approval shall be regarded as being otherwise in accordance with the information and particulars set out and described in the Development Application registered in Council's records as Development Application No 010.2009.00000010.001 received on 12/01/2009 except where varied by the following conditions of consent. 31Condition 5(1) of the 2009 consent stated as follows: Construction shall not commence, nor any earthworks or placement of site sheds, prior to the issue of a Construction Certificate by the Principal Certifying Authority. 32Condition 6(3) of the 2009 consent required the works carried out on the land to be accompanied by a sewerage management facility application having been submitted to the council for approval; Prior to issue of construction Certificate, a sewerage management facility application comprising plans and manufactures specifications shall be submitted to Wollondilly Shire Council for approval. All drainage works shall be carried out in accordance with the New South Wales Plumbing & Drainage Code of Practice except where otherwise provided in the Local Government Act 1993, or the Local Government (General) Regulation, 2005. In relation to any approval for the installation of an On-Site System of Sewerage Management Facility (septic tank), including any drainage works associated with the system under Section 68 of the Local Government Act, 1993, the following works shall be inspected by Wollondilly Shire Council, prior to backfilling of drainage lines or the tank: - Internal/External drainage before backfilling; - Septic/wastewater treatment tank prior to backfilling; - Disposal and/or irrigation system. 33Run off and erosion controls were prescribed by condition 8(1) of the 2009 consent: Runoff and erosion controls are to be installed prior to the commencement of any site works and incorporate: a) Diversion of uncontaminated up-site runoff around cleared and/or disturbed areas. b) Containment of the downslope permitter of the cleared and/or disturbed area with a slit fence and/or other devices to prevent sediment and other debris escaping from the land. c) Maintenance of all erosion control measures at maximum operational capacity until the land if effectively rehabilitated after complete of construction. 34Condition 8(2) of the 2009 consent required: Removal and/or disturbance of vegetation is to be confined to the approved building area, the site of permanent access ways and land extending a maximum of 3 metres beyond the outermost projection of the approved building. 35Condition 10(2) of the 2009 consent stated that: No clearing shall occur in the areas defined as Shale Hills Woodland as defined in the map (Figure 3) of the Flora and Fauna Assessment prepared by BES Service December 2008. 36Condition 10(4) of the 2009 consent required a property vegetation plan to be approved by the Catchment Management Authority: Clearing beyond the area authorised by this Development Consent shall not occur without being specified in a property Vegetation Plan approved by the Catchment Management Authority. 37The information in particular referred to in condition 1(2) of the 2009 consent included the following documents: (a) the plans; (b) the 2008 SEE; (c) the Flora and Fauna Report; and (d) the Bushfire Report. 38The 2008 SEE relevantly stated the following (emphasis added): The landowner is seeking to construct a single storey dwelling at the north west portion of the site, reconstruct and upgrade existing trails on the site (to a serviceable standard of the rural bushfire brigade) ... The dwelling and upgrade to trails has been designed to ensure minimal impact upon the natural environment. The dwelling is proposed to be located in an area which is cleared and requires minimal removal of vegetation for development, cut and fill, bushfire management and week removal. It is intended to ensure that minimal disturbance shall occur to the site whilst the site is enhanced with landscaping and ensuring that as much as possible of the existing natural vegetation is retained. ... The proposed upgrade to trails will be within existing cleared areas and in areas that will require removal of exotic vegetation. Minimal cut and fill will be required as the trails are within areas on tops of ridges and spurs (i.e., electrical transmission easement) and follows traditional trails that meander and follow natural contour and less steep areas. The location of the trails will be of low visual impact, will result in minimal erosion, cut and fill and will be low maintenance. 39Neither the DA nor the accompanying documentation indicated that the development proposal involved the placement on the land of fill material comprising processed waste from the Banksmeadow Waste Facility. Likewise, the plans and documentation comprising the DA did not indicate, that the development proposal was to import large amounts of fill and deposit it on the land, as distinct from "minimal cut and fill". 40Apart from the 2009 consent, there is no other development consent on the council's register authorising the impugned works on the land for the purpose either of the WLEP, SREP 20 or the use of the land as a "waste management facility or work" pursuant to cl 32 of Sch 3 of the EPA Regulations. 41On 22 January 2009 DECC wrote to Mr Scimone in response to BBR's application dated 10 December 2008 requesting an exemption for recovered construction and demolition waste. The letter informed Mr Scimone that DECC had conducted an internal review of BBR's application and sought additional information before an assessment could be undertaken. In particular, it requested all characterisation sample analytical test results for the material the subject of the proposed exemption; a detailed explanation justifying the reason for the exemption; and any correspondence with other regulatory authorities. 42On 1 May 2009 Mr Foxman, on behalf of BBR, submitted a modified exemption application for the same class of material as that previously submitted, but this time for a specific exemption for "select fill" from the licensing and waste levy requirements of the POEOA and POEO Waste Regulations. The application stated: It is respectfully suggested that an approval of this proposal for a specific exemption will maximise the re-use of the material in ligament construction and/or landscaping projects. A refusal of the application would then necessitate the disposal of this material by landfill, which is an undesirable outcome. 43Attached to the application was a table setting out the chemical and other material property requirements of the select fill. The table showed elevated levels of lead. 44On 4 May 2009 Mr Foxman, on behalf of BBR, submitted updated information in support of BBR's application for an exemption with respect to "select fill". This letter stated: An approval of BBR's application would be consistent with the DECC's stated requirement of fit for purpose. This material does not need to be disposed of by land fill and its re-use in the defined situation is appropriate. This application aims to maximise the re-use of material and is consistent with DECC's policies of minimising material disposed of by landfill. 45On 11 June 2009 Mr Steve Hartley from DECC wrote to Mr Scimone in respect of BBR's application for an exemption for "select fill" seeking additional information. 46On 7July 2009 further information was provided by Mr Foxman on behalf of BBR to DECC. With respect to processing operations, Mr Foxman confirmed his earlier advice that the material would be subjected to "visual screen" and then to mechanical crushing, a mechanical screen and a further visual screen. 47On 14 July 2009 there was consideration of the matter by DECC by way of internal memo. The "current position" was stated as follows: Two General Resource Recovery Exemptions were gazetted to commence on 1 April 2009 that adequately address the recovery and use of 'select fill' from waste derived from the processing of 'mixed C&D' waste. The Foreign material limits proposed by Botany Building Recyclers are approximately 1000% of the limits prescribed in the current General Exemption for Recovered Fines (from C&D processing). 48By letter dated 30 July 2009, DECC informed BBR that there were insufficient grounds to enable DECC to proceed with the development of the specific exemption for "select fill" for which BBR had applied. This determination was confirmed on 15 September 2009 by DECC, in answer to a letter written by Mr Foxman to DECC on 19 August 2009 expressing his dissatisfaction with DECC's determination. 49On 4 September 2009 Mr Foxman and Mr Scimone on behalf of BBR met DECC, now renamed the Department of Environment, Climate Change and Water ("DECCW") staff, to discuss "their case for a more liberal exemption". 50Mr David McEwan, the Senior Compliance Officer employed by the council, swore an affidavit in these proceedings on 1 October 2010. On 8 September 2009, pursuant to a complaint received by the council, he inspected the land and took a number of photographs. He observed what appeared to be a large excavator, storage sheds, a relocatable office, and other earth moving equipment located on the land. 51In its 15 September 2009 letter, DECCW stated that it had reviewed the decision and was satisfied that there were insufficient grounds to proceed with an exemption based on the information provided by BBR. It was DECCW's view that the current exemptions adequately provided for the land application of waste derived material that could be processed and recovered by construction and demolition waste recyclers. In particular the limits for "Foreign materials" reflected levels that could be "reasonably achieved after the removal of such materials with appropriate processing by construction and demolition recyclers in NSW". 52On 16 September 2009 Mr McEwan inspected the council's files to which the 2009 consent related. This inspection revealed that: (a) no construction certificate had been issued in respect of the 2009 consent; and (b) no earthworks associated with the dwelling appeared to be noted on the plans accompanying the 2009 consent, nor were earthworks conditioned in the 2009 consent. 53Later that day he had a telephone conversation with Mr Scimone, having tried to contact Mr Foxman directly, wherein he informed Mr Scimone that prior to starting any works on the land a private certifying authority had to be appointed and a construction certificate had to be obtained. 54Also on the same day, Mr Foxman telephoned Mr McEwan and the following conversation took place (emphasis added): He said: "I have a DA for a house and fire trails. The works we have started are site prep works for the house." I said: "Council has received a report from the public concerned about the type of material being brought onto the property." He said: "The material we have brought onto the property has been tested prior to it leaving my recyclers at Botany." I said: "The consent requires a CC before you even put a site shed at the property. The issue is that Council has plans for a house that has no requirement for earth to be imported onto the property. Also no CC seems to have been issued as the weed plan has not been approved. We also do not have any information with regards to the fire trail works and without the CC the commencement of works on site is a breach of the consent." He said: "We will do whatever Council requires. I will get Joe to call you and provide the CC plans and the certifiers name and details." 55On 17 September 2009 Mr McEwan forwarded two Notices of Intention to Serve an Order ("NISOs") foreshadowing the issuing of orders by the council to restore the land to the state it was in prior to the works having been undertaken. Later that day Mr Foxman had a conversation with Mr McEwan wherein he stated that the construction certificate would be received "within a couple of days". Mr Foxman requested that the council "hold off" on issuing the NISOs. Mr McEwan indicated that it was his normal practice to issue the NISOs but that if the construction certificate was obtained before 2 October 2009 the orders for restoration may not be issued. Mr McEwan said to Mr Foxman "also the importation of fill onto the property does not seem to be covered by the DA, however the fill issue is a separate issue and is under review". 56On 24 September 2009 Mr McEwan once more attended the land to carry out a further visual inspection. Again, he took photographs recording his observations. In particular he observed a bulldozer and a large amount of material that had been deposited on the land. Vegetation had been cleared and a road cut into the hillside. It was his opinion that the material had been deposited onto the land and the road cut into the hillside within a couple of weeks prior to his inspection given the disturbed nature of the soil. It was his estimate that the fill covered an area of about 25m x 25m and was about 8m deep at its deepest part. It was also his estimate that more than 200 tonnes of material had been deposited onto the land. Mr McEwan also took video footage which was viewed by the Court. 57Mr Trevor Wilson is a Senior Regional Operations Officer employed by DECCW and, at the time of swearing his affidavit on 15 February 2011, was Acting Unit Head in the Waste Management Section of that Department. On 30 September 2009 he conducted an inspection of the land with Dr Helen Prifti and Ms Jacqueline Ingham (both DECCW officers) and Mr McEwan. During the inspection he observed a stockpile of material containing brick, tile, plastics, glass, wood, soil and rock which appeared to have been processed as the materials had the appearance of being broken up to a relatively uniform size ("stockpile 1"). Located down a slope and east of this stockpile were two smaller stockpiles of material which appeared to contain natural material that was consistent with the natural material on the land ("stockpile 2" and "stockpile 3"). A fourth stockpile observed by him appeared to contain material that had been processed to a uniform size including concrete, brick and ceramics ("stockpile 4"). 58Mr Wilson took samples from stockpile 1 and stockpile 2 and submitted them for analysis by DECCW's Environmental Forensic and Analytical Science Section. On 2 November 2009 he was provided with a report of the analysis which showed that one of the samples from stockpile 1 contained Chrysotile asbestos and Amosite asbestos. 59On 2 October 2009 Mr McEwan telephoned Mr Foxman. Mr Foxman told him that he would be providing a construction certificate for the roadworks and that work on the land had ceased. Mr Foxman also told Mr McEwan that "the fill has been deposited for the construction of the fire trail". Mr McEwan responded by telling Mr Foxman that he did not think that the importation of fill had been consented to. 60On 6 October 2009 Mr Foxman attended the council. Mr McEwan told Mr Foxman that "works on the fire trail are not as approved". Mr Foxman produced papers and maps in respect of a construction certificate for the fire trail. He was informed by Mr McEwan that the work on the fire trail exceeded the relevant plans. Mr Foxman responded by stating "I will lodge a new DA ASAP". Later that day Mr Foxman was again advised by Mr McEwan that, in respect of the material stockpiled on the land "for use at a later date for the roads", any works undertaken by Mr Foxman required approval prior to those works commencing. 61Also on 6 October 2009 Mr Foxman wrote to the council making the following representations in response to the NISOs issued by it. Representations were to the effect that the council had issued the 2009 consent for, amongst other things, "fire trails" and that the fire trails had been designed to comply with the requirements of the New South Wales Rural Fire Service ("the RFS") by accredited consulting engineers and surveyors. Accordingly "it is intended to carry out works in accordance with the development consent issued by Council." Therefore, he requested that the NISOs be withdrawn. 62On 7 October 2009 Mr Foxman submitted an application for a construction certificate for road construction for the fire trail to Mr Craig Hardy, the fourth respondent, with respect to the 2009 consent. Mr Hardy determined the application by issuing the certificate ("the construction certificate"). 63It is convenient at this juncture to note that the evidence plainly disclosed that the construction certificate was issued after the construction of the fire trail had commenced. Section 109F(1A) of the EPAA provides that a construction certificate has no effect if it is issued after the building work to which it relates has been physically commenced on the land to which the relevant development consent applies. Accordingly, I find that the construction certificate, having breached this provision, has no effect and is void. It is not necessary to say anything further about Mr Hardy, the council is seeking no orders against him. Mr Hardy did not play an active role in the proceedings. 64Also on 7 October 2009 lawyers for BBR responded to the letter from DECCW dated 15 September 2009 with respect to BBR's application for an exemption. The letter requested an indication of what further information BBR could provide so that "you may see your way clear to grant the exemption". 65On 14 October 2009 Mr McEwan again attended the land to carry out a further visual inspection. Again he took photographs recording his observations. He observed: (a) new fill had been deposited on the land to further develop the road he had observed on the last inspection; (b) a second road had been cut and mounds of fill had been deposited along it; (c) other areas of the land had been recently cleared; and (d) a large dam had been constructed and the fill placed to form the dam wall was beginning to erode. 66On 21 October 2009 the council issued a Penalty Infringement Notice and an Order 12 under s 121B of the EPAA to Mr Foxman requiring him to restore the land by returning and compacting the soil and turfing the areas affected by the works undertaken without consent. The reasons given for the order were that "the works had been carried out unlawfully" insofar as the works were not in accordance with the plans forming part of the 2009 consent. 67On 4 November 2009 Mr Wilson attended the Banksmeadow Waste Facility. During the course of the inspection he inspected material in a storage bay which Mr Foxman indicated to him was the storage bay with the remains of the material that "I arranged to be transported to my property [the land]". Mr Wilson collected two samples of material he suspected to be asbestos from the material in the storage bay. They were submitted for analysis and on 8 March 2010 the results of DECCW's testing confirmed that one of the samples contained Chrysotile asbestos. Mr Wilson again inspected the land on 8 January 2010 and collected seven samples of material which he suspected to be asbestos from stockpile 1. Five of those samples contained Chrysotile asbestos. 68On 10 November 2009 the EPA issued a Notice of Clean-Up Action to Foxman pursuant to s 91 of the POEOA. The Notice directed Foxman to cease transporting, or causing to be transported, material (comprising what "appears to be greater than 200 tonnes" stockpile of soil, rock, tiles, concrete, bricks, glass, wood and plastic) to and from the land and to cease moving it around the land. The Notice was issued pursuant to the inspection of the land on 30 September 2009, during which inspection samples were taken of the stockpiles. 69On 24 November 2009 Mr McEwan carried out a fourth inspection of the land. Photographs were again taken by him, recording the following: (a) new fill had been deposited on the land to further develop the first and second roads; and (b) various earthmoving equipment was visible on the land. 70On 7 December 2009 Mr McEwan carried out a fifth inspection of the land. He observed, as recorded in photographs taken by him, new fill placed on the land and a sediment control barrier around part of the fill. Moreover, a third road had been cut and vegetation had been cleared to construct this road. 71On 16 December 2009 Mr Foxman provided to DECCW sampling data undertaken by ALS Laboratory Group ("ALS") on samples collected on 10 November 2009, to demonstrate compliance with The recovered aggregate exemption 2008. 72On 15 January 2010 Mr McEwan carried out a sixth inspection of the land and again took photographs. Again he observed fill placed on the land and a sediment control barrier around part of the fill. 73Also in January 2010 the EPA issued a Variation of Notice of Clean-Up Action to Foxman under s 110 of the POEOA, which was, as it stated, a variation of the notice issued in November 2009. The Variation Notice required Foxman to survey the stockpile (now deemed to be "waste" under the POEOA) and to remove the waste and take it to a waste facility that was able to lawfully accept asbestos contaminated waste. 74The Variation Notice was issued because the laboratory analysis of the samples taken of the stockpile revealed the presence of asbestos that did not comply with The recovered aggregate exemption 2008 or The recovered aggregate exemption 2010. Subsequent testing and correspondence between DECCW and Mr Foxman demonstrated that the material containing asbestos originated from material at the Banksmeadow Waste Facility. As noted above, further testing of the stockpile was undertaken by DECCW on 8 January 2010, again confirming the presence of asbestos. Accordingly, DECCW determined that the stockpile was "waste" for the purposes of the POEOA. 75Mr McEwan carried out his seventh inspection of the land on 10 February 2010. He observed that the fill previously photographed by him on the sixth and fifth inspections had partly eroded. 76On 2 March 2010 BBR made a new application to DECCW (through Quadro Australia Pty Ltd, or "Quadro") for a specific exemption for processed waste. On this occasion the application specifically sought permission to apply the processed waste to the land. 77Mr David Savage, the council's Team Leader - Compliance, swore an affidavit on 7 October 2010. On 9 March 2010, Mr Savage had caused a stop work order to be issued to Mr Foxman and the Foxman entities. Works did not, however, cease on the land. 78On 12 April 2010 DECCW wrote to Quadro stating that the application had been refused for reasons that included the fact that a "detailed explanation justifying the reason for the proposed foreign material limits was not provided" as requested. Accordingly, DECC could not be satisfied that the material the subject of the exemption was not "fit for purpose" as specified in condition 8.3 of The recovered aggregate exemption 2010. 79On 14 April 2010 Mr McEwan carried out his eighth inspection, again recording what he observed by way of photographs. He observed that a large amount of new material had been placed on the land which included broken pieces of building material. The material appeared to be used as fill to create a fourth road. In addition he observed a bulldozer and that new material had been placed upon the land to create a fifth road. The fifth road had been constructed by fill and also by cutting through the vegetation and landscape. 80On 15 April 2010 he again attended the land to carry out a ninth inspection and took photographs. He observed a bulldozer moving material onto the land apparently to construct the fifth road. 81On 22 April 2010 Mr McEwan carried out his tenth inspection by both road and air and took photographs. On the ground he observed new material had been placed on the land since his eighth inspection. He also noticed a bulldozer moving material onto the land for the apparent purpose of creating the fifth road. By helicopter, Mr McEwan took various aerial photographs of the five roads, the new dam, and the clearing of vegetation. He also observed new clearing and fill had been placed into a creek. Moreover, he saw that new mounds of material had been deposited upon the fourth road. This material had been placed upon the land since his eighth inspection. The aerial photographs demonstrated starkly the extent of the works being carried out on the land. 82On 22 April 2010 Mr Wilson inspected the land with another DECCW officer, Mr Josh Godbee, to inspect the sediment controls around stockpile 1 on the land and to inspect materials that had been deposited upon the land adjacent to Evelyns Range Road (in the Western Fill Area). He observed that the sediment fences were all in working order and no material from stockpile 1 appeared to have been washed into a creek line to the east of that stockpile. Mr Wilson observed a piece of material in stockpile 1 that he suspected could be asbestos. He collected a sample for testing. 83Mr Wilson then inspected the land to the north-east (in the Eastern Fill Area). He noticed that brown soil like material had been deposited on the land in the form of a ramp. The material contained soil mixed with broken glass, wood, brick, rock and roof tiles. He supervised Mr Josh Godbee undertaking sampling of the brown soil like material. Five samples of material suspected to contain asbestos were collected. 84The samples were submitted for laboratory analysis of the constituent material of the fill as against The recovered aggregate exemption 2010 and The fines general exemption 2010. As stated in his affidavit affirmed 10 February 2011, it was Mr Godbee's conclusion, based on the results of that analysis, that the tested fill material did not meet either waste exemption criteria. 85On 3 May 2010 Mr McEwan attended the land to carry out his eleventh inspection. Mr Foxman was present at that time. The following conversation took place between Mr Foxman and Mr McEwan (emphasis added): PF: "The material has been stockpiled on site for future use as road base. Almost all of the material brought on to the Land came from Botany Building Recyclers. DM: "Ok, is it still your intention to lodge a DA for the dam and tracks not covered by the current DA?" PF: "I've been told not to answer any questions by my solicitor, but yes. I intend to lodge a further DA for two dams combined with a continued use DA for any tracks not covered by the current DA. DM: "Do we need masks for the asbestos, has the material been tested?" PF: "The material had been tested and no asbestos had been found." Mr Foxman also told Mr McEwan that the material had been tested prior to being deposited on the land and those tests had been "negative for asbestos". 86On 6 May 2010 the samples taken from the Western Fill Area on 22 April 2010 during Mr Wilson's inspection were found to be contaminated with asbestos insofar as one of the samples tested positive to Chrysotile asbestos. On the same day, the analysis of samples taken from the Eastern Fill Area on 22 April 2010 during the same inspection revealed that three of the five samples contained Chrysotile asbestos and two of the five samples also contained Amosite asbestos. Two of the five samples contained no asbestos. 87Affidavits of Mr Joshua Godbee (affirmed 10 February 2011) and Dr Helen Prifti (sworn 11 February 2011) supported the facts deposed to by Mr Wilson in his affidavit. 88The affidavits of Dr Helen Prifti and Mr Joshua Godbee also served another purpose. In relation to the 30 September 2009 site inspection with Mr Wilson and Mr McEwan, where five samples of waste were collected and subjected to laboratory analysis by DECCW's Environmental Forensic and Analytical Science section, Dr Prifti tested the samples against the requirements under The recovered aggregate exemption 2008. The test results for the composite samples were compared to the "Absolute maximum concentrations" in Table 2 of that exemption. One sample was also sent to Network Geotechnics Pty Ltd for an analysis of foreign materials. The further testing revealed that the sample exceeded the thresholds permitted for lead and physical contaminants, and therefore, the composited sample did not meet the conditions of The recovered aggregate exemption 2008. 89The affidavit of Mr Godbee was similar in nature. The five samples of material he had collected during the 22 April 2010 site inspection with Mr Wilson were submitted for laboratory testing by DECCW. The five samples were composited by the laboratory and tested against the requirements under The recovered aggregate exemption 2010 and The continuous process and batch process recovered fines exemption 2010. Results of the testing of the composite sample, when compared to the Absolute maximum thresholds permitted within The recovered aggregate general exemption 2010, demonstrated that the material contained in the sample exceeded the Absolute maximum threshold (0.3%) for rubber, plastic, paper, cloth, paint, wood and other vegetable matter (0.8%). When the test results were compared against the The continuous process and batch process recovered fines general exemption 2010, the material exceeded the absolute maximum thresholds (10.0) for pH (10.4) and the absolute maximum threshold (0.3%) for glass metal and rigid plastics (0.8%). Accordingly, it was his opinion that the material sampled and tested did not meet the criteria for either exemption. 90The evidence of Mr Wilson, Mr Godbee and Dr Prifti was not challenged by the Foxman entities. 91It was, moreover, consistent with the evidence of Ms Barbara Hanna, an employee of ALS. She deposed in an unchallenged affidavit sworn 25 February 2011 that: (a) on or about 30 May 2008 BBR initially provided to ALS a copy of The recovered aggregates exemption 2008 and The recovered fines exemption 2008; (b) during the period 4 June 2008 to 2 June 2010 samples were provided by BBR to ALS on a regular basis for testing. ALS was not involved in the collection of these samples. ALS was requested to test for asbestos pursuant to work orders dated 23 June 2008, 22 October 2009 and 2 December 2009; and (c) asbestos was found in the sample contained in the work order dated 22 October 2009. ALS notified BBR of the results of this test on 2 November 2009.

The 26 May 2010 Meeting 92On 26 May 2010 Mr Foxman attended the council for a meeting. As Mr McEwan agreed in cross-examination, prior to this meeting Mr Foxman's attitude could be characterised as willing to "do whatever council requires" to rectify the situation he found himself in with respect to the deposited fill on the land. 93Present at the meeting were Mr Foxman, Mr Foxman's legal representative, the council's legal representative, Mr Savage, Dr Daniel Martens (a civil engineer retained by the council) and a secretary taking notes. At the meeting Mr Foxman was told that the council sought the removal of the material that had been brought onto the site. The issue of asbestos present in the material was raised. At one point it was suggested that Mr Foxman surrender his consent and submit a new development application for approval for the works with respect to the construction of the roads, the dam and initial work compaction and management of the land fill. 94As Mr McEwan conceded in cross-examination, Dr Martens suggested that Mr Foxman lodge a development application to deal with the material deposited on the land that would cover the dam and initial work to compact the landfill and to manage it, so that the council could be satisfied that there was no harm to the environment or risk to public health. Dr Martens further suggested that Mr Foxman lodge both a development application and a s 96 modification in this regard. He went on to state at the meeting that an environmental impact statement would be required because the material was, in his opinion, waste comprising, as it did, contaminated fill. However, as Mr McEwan agreed in cross-examination, at the conclusion of the meeting, the issue of whether or not the material deposited on the land was waste or not, remained a live issue. 95Mr McEwan did not disagree with Dr Martens' suggested approach. In fact, it was his opinion, formed "as far back as 6 October [2009]", that a legal planning process should be adopted whereby the work that had been carried out and was proposed to be carried out could be regularised provided it was done so in a manner that ensured that there was no harm to the environment or risk to public health. This regularisation included the retention of some of the material deposited on the land, subject to the appropriate environmental and public health risks being accommodated.

Attempts at Resolution with the Council 96Between 27 May and 13 August 2010, further correspondence passed between the parties in an attempt to resolve the matter. The salient features of this correspondence may be summarised as follows: (a) on 27 May 2010 the lawyers for the Foxman entities wrote to the council referring to the conference held at the council's chambers on 26 May 2010 and proposed that the parties consult with each other and compare test results; (b) on 1 June 2010 the council's lawyers wrote to those of the Foxman entities rejecting this suggestion. Instead, the council requested that the Foxman entities provide to it all test results that it had in respect of the material deposited on the land which were said to demonstrate compliance with The recovered aggregate exemption 2008 and The recovered fines from construction and demolition waste processing exemption 2009. Enclosed was an irrevocable undertaking for the Foxman entities to sign. The undertaking provided that the Foxman entities would: cease carrying out of all works on the land; cease depositing any further material of any composition on the land; cease moving the current deposited material about the land; acknowledge the assertion by the council that the works complained of were unlawful and that the council could commence legal proceedings seeking orders requiring the demolition, removal or rectification/remediation of those works; and within 21 days lodge all applications with the council, and other relevant regulatory authorities, so as to regularise the works/activities on the land. The undertaking would lapse on 30 June 2010 unless extended by agreement; (c) on 9 June 2010 lawyers for the Foxman entities responded expressing concern that DECCW had not provided any test results showing any asbestos contamination and requesting that the council provide such results. The letter went on to say that the Foxman entities would be prepared to lodge a s 96 modification application covering the new tracks and roads constructed and the fill material. The Foxman entities offered to pay the council's legal costs in the sum of approximately $85,000; (d) on 16 June 2010 lawyers for the council summarised the council's position in a letter to the Foxman entities' lawyers as follows: (i) that the Foxman entities pay the council's investigation and legal costs referred to in its earlier letter; (ii) that the Foxman entities give the undertakings set out in the irrecoverable undertaking document provided to them earlier; (iii) that the Foxman entities provide every test result it held in respect of material deposited on the land; (iv) that the Foxman entities needed "to regularise the unlawful depositing of material upon the land"; (v) rejecting any suggestion that a s 96 modification application would suffice because it would not result in a development that was substantially the same development for which the 2009 consent was granted. It stated that the proposed s 96 application "would have little, if any, prospect of success"; (vi) stating that the council was not convinced, in the absence of any testing demonstrating otherwise, that the Foxman entities could avail themselves of the EPA exemptions. The council went on to state that it was prepared to provide copies of the complete testing by Dr Martens "upon your client agreeing to meet Council's costs as previously advised". A summary of Dr Martens' findings and testings was contained in the letter. These tests showed that the fill materials at the site did not meet the criteria outlined in either The continuous process and batch process recovered fines exemption 2010 or The recovered aggregate exemption 2010; and (vii) that the Foxman entities should lodge a development application seeking consent for the use of the first road currently constructed and also a development application for the construction of new fire trails and tracks using the materials on site. Also that a development application be lodged to otherwise dispose of the material on the site in a suitable location on the land, and in addition, development applications should be lodged for the construction of the dam and/or its use, and for the rehabilitation of the creek which had been damaged by the works; (e) on 30 June 2010 lawyers for the Foxman entities responded. The Foxman entities proposed to pay the council's reasonable legal costs and disbursements of approximately $85,000. Also enclosed was a revised set of undertakings which included a clause requiring that they lodge within 90 days all applications with the council and any other relevant regulatory authority necessary to regularise the works/activities on the land; (f) on 30 June 2010 lawyers for the Foxman entities wrote to the council enclosing a signed version of the amended irrevocable undertaking. Enclosed were test results from ALS; (g) between 8 and 9 July 2010, various correspondence passed between the council and the Foxman entities concerning the adequacy of answers given by the Foxman entities to questions earlier posed by the council concerning the nature and the scope of the works and activities on the land; and (h) on 19 July 2010 the council's lawyers wrote to the Foxman entities' lawyers stating that in their opinion, having regard to the evidence obtained from their investigations, the quantity and nature of the material deposited on the land, which included a "wide distribution of asbestos that is classified as Special Waste (asbestos waste)" and lead that exceeded contaminant thresholds and other contaminants, the council had formed the view that the material had to be removed. The council rejected the amended irrevocable undertaking provided by the Foxman entities on 30 June 2010 because it did not require removal of the waste. Accordingly, the council requested the Foxman entities to execute an enclosed irrevocable undertaking by 22 July 2010 that essentially required them to remove the waste from the land within 120 days and remediate the land within 120 days after the removal of the waste. The letter concluded by stating that if the Foxman entities did not give the undertaking, or an acceptable alternative, the council may commence legal proceedings in the Court. 97Mr McEwan confirmed in cross-examination the respective positions of the parties as described above. 98On 1 October 2010 Mr McEwan telephoned WSN Environmental Solutions to confirm what the tipping fees would be regarding the disposal of waste. He was told that waste with asbestos had a minimum charge of $145 for 300kgs and the cost per tonne was $380. Restricted waste was $200 per tonne and general waste was $196 per tonne. It was common ground that no tipping fees have been paid by any of the Foxman entities in relation to the placement of the impugned material on the land. 99Finally, on 19 October 2010 an email was received by Mr Moore at the EPA and copied to Mr Foxman. Attached was a report from VDM Consulting dated 11 October 2010. VDM Consulting had been engaged by Mr Foxman to ascertain the suitability of recycled materials derived from construction and demolition waste to be used for the fire trail road construction. The analysis by VDM Consulting concluded that the proposed material was appropriate, from an engineering perspective, to be used for the construction of the proposed fire trail. As such the material was "fit for purpose". 100The letter further noted that the fire trail was to be constructed pursuant to the 2009 consent. It stated "construction of the fire trail will involve significant earthworks requiring the cut and fill of the fire trail formation, the bulk filling provision of a subgrade improvement layer and finally the placement of a 200mm thick sub-base layer". However, the letter went on to state the following (emphasis added): It is proposed that the following construction materials will be used: Bulk filling and subgrade improvement 50mm recycled concrete aggregate (RCA) Class S or equivalent Sub-base layer 20mm RCA material Class R2 or equivalent

A sample of the proposed recycled crushed concrete material has been tested and analysed by Resource Laboratories. A copy of their rest report is attached to this letter. The 4 day soaked Californian Bearing Ratio (CBR) test produced the following results: CBR Value (%) 60 Foreign Material (Max Allow %)

Asbestos 0 Metal 0 Glass and Ceramics 2.8 Plaster 0.84 Rubber, plastic, paper, cloth and paint 1.2 Wood & vegetable matter 2.1

The above results show that the ex-yard RCA possesses a satisfactory CRB strength but does not satisfy maximum allowable percentages of foreign material nominated by the Protection of the Environment Operations (Waste) Regulations for exempt material. Nevertheless it is noted that RCA exempt material is typically used as an alternative to dense gradebase materials in upper base course layers.

Evidence of the Foxman Entities 101With the exception of experts retained by the Foxman entities, no one, including Mr Foxman, gave evidence on their behalf. It may be assumed that this was because the evidence would not have assisted their case (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298).

Summary of the Works Carried Out on the Land 102In summary, from 8 September 2009 until May 2010, works were carried out on the land involving the importation and placement of fill material on the land, together with associated earthworks and clearing ("the works"). The works involved depositing onto the land fill material sourced from the Banksmeadow Waste Facility. Approximately 15,700m³ were deposited. The fill material was placed primarily in the areas on the land known as "the Western Fill Area" and "the Eastern Fill Area" (or, as was also referred to in the survey plan of cut and fill areas prepared by Lean & Hayward Pty Ltd attached to the amended summons, "Cut/Fill Area 1" and "Cut/Fill Area 2 (Ramp)" respectively). 103The works carried out on the land also included the use of a grader and other earthmoving equipment to create an earthen track for a distance of approximately 650m along where a watercourse ("WC2") had previously been located. Approximately 230m of the left bank and approximately 250m of the right bank of the watercourse were removed. The new bank of the watercourse was the edge of the earthen track referred to above. The works also included creation of a dam towards the northern boundary of the land, using material sourced from the land. The dam impeded the flow of a watercourse ("WC1") in that location causing harm to the local ecology.

The Council's Contentions 104The council contends that the waste material deposited onto the land in both Western and Eastern Fill Areas is significantly contaminated with asbestos, so that it may be classified as "asbestos waste", being a sub-set of "special waste" as defined in Pt 3 of Sch 1 of the POEOA. The material is also asserted to contain elevated levels of lead. 105The council further contends that the placement of the waste on the land has caused and is causing pollution of the land and pollution of waters within the meaning of the POEOA because of the contaminants in the waste material and the possible migration of particulate matter down the steep slopes located on the land to the watercourse, as a result of the structural instability of the fill in certain areas. 106The council claims that the placing of material on the land was carried out without the necessary development consent as required by s 76A(1)(a) of the EPAA, having regard to the requirements of SREP 20 and the definition of "land filling operation" in the WLEP. Moreover, not only was the development consent not obtained as required, but, having regard to the nature of the fill, comprising, according to the council, waste material, the use of the land by the Foxman entities constituted a "waste management facility or works", which was designated development pursuant to cl 32 of Sch 3 of the EPA Regulations. 107Insofar as the works involved the construction and upgrading of fire trails, the works were carried out, the council alleges, in contravention of the 2009 consent in the following respects (as pleaded in the amended points of claim): (a) that the works on the land had been carried out in breach of conditions 1(1) and 1(2), 5(1), 6(3), 8(1) and 8(2) and 10(4) of the 2009 consent; (b) that the placement of fill on the land was permissible only with consent pursuant to the provisions of SREP 20 and that, as required, no consent had been sought or granted under SREP 20 to carry out these filling works; (c) these filling works constituted a "land filling operation" as defined in the WLEP being a work or other activity on land for any purpose which has the effect of materially altering the shape or natural form of land; (d) that the filling works constituted the use of land for the purpose of a "waste management facility or works" as defined in cl 32 of Sch 3 of the EPA Regulations; (e) the carrying out of a "land filling operation" as defined in the WLEP was not permitted under the 2009 consent; (f) the use of the land as a "waste management facility or works" as defined in the EPA Regulations was not permitted under the 2009 consent; and therefore (g) the filling works constituted the carrying out of development without consent in contravention of s 76A(1)(a) of the EPAA. 108In respect of the breaches of the WMA, the council argued that the works involved the carrying out of a work and the deposition of material on "waterfront land" as defined in that Act, and therefore, required, a "controlled activity" approval under the provisions of Pt 3 of the WMA.

POEOA 109Sections 120, 142A, 143 and 144 of the POEOA state: 120 Prohibition of pollution of waters (1) A person who pollutes any waters is guilty of an offence. (2) In this section: pollute waters includes cause or permit any waters to be polluted. 142A Pollution of land (1) A person who pollutes land is guilty of an offence. Maximum penalty: (a) in the case of a corporation-$1,000,000, and in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or (b) in the case of an individual-$250,000, and in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues. (2) In this section: pollute land includes cause or permit any land to be polluted. 143 Unlawful transporting or depositing of waste (1) Offence If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or permits waste to be so transported: (a) the person, and (b) if the person is not the owner of the waste, the owner, are each guilty of an offence. ... (4) Definitions In this section: ... owner of waste includes, in relation to waste that has been transported, the person who was the owner of the waste immediately before it was transported. 144 Use of land as waste facility without lawful authority (1) A person who is the owner or occupier of any land and who uses the land, or causes or permits the land to be used, as a waste facility without lawful authority is guilty of an offence. Maximum penalty: (a) in the case of a corporation-$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or (b) in the case of an individual-$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues. 110"Pollution" is defined in the Dictionary of the POEOA to mean: pollution means: (a) water pollution, or (b) air pollution, or (c) noise pollution, or (d) land pollution. 111In turn, "land pollution" is defined in the same Dictionary to mean: land pollution or pollution of land means placing in or on, or otherwise introducing into or onto, the land (whether through an act or omission) any matter, whether solid, liquid or gaseous: (a) that causes or is likely to cause degradation of the land, resulting in actual or potential harm to the health or safety of human beings, animals or other terrestrial life or ecosystems, or actual or potential loss or property damage, that is not trivial, or (b) that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter, but does not include placing in or on, or otherwise introducing into or onto, land any substance excluded from this definition by the regulations. 112The term "waters" is widely defined in the Dictionary of the POEOA to mean: waters means the whole or any part of: (a) any river, stream, lake, lagoon, swamp, wetlands, unconfined surface water, natural or artificial watercourse, dam or tidal waters (including the sea), or (b) any water stored in artificial works, any water in water mains, water pipes or water channels, or any underground or artesian water. 113"Water pollution" is defined in the same Dictionary to mean: water pollution or pollution of waters means: (a) placing in or on, or otherwise introducing into or onto, waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed, or (b) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any refuse, litter, debris or other matter, whether solid or liquid or gaseous, so that the change in the condition of the waters or the refuse, litter, debris or other matter, either alone or together with any other refuse, litter, debris or matter present in the waters makes, or is likely to make, the waters unclean, noxious, poisonous or impure, detrimental to the health, safety, welfare or property of persons, undrinkable for farm animals, poisonous or harmful to aquatic life, animals, birds or fish in or around the waters or unsuitable for use in irrigation, or obstructs or interferes with, or is likely to obstruct or interfere with persons in the exercise or enjoyment of any right in relation to the waters, or (c) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter, and, without affecting the generality of the foregoing, includes: (d) placing any matter (whether solid, liquid or gaseous) in a position where: (i) it falls, descends, is washed, is blown or percolates, or (ii) it is likely to fall, descend, be washed, be blown or percolate, into any waters, onto the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, or (e) placing any such matter on the dry bed of any waters, or in any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, if the matter would, had it been placed in any waters, have polluted or have been likely to pollute those waters. 114The term "waste" is defined in the Dictionary to the POEOA as follows: waste includes: (a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or (b) any discarded, rejected, unwanted, surplus or abandoned substance, or (c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced the substance, or (d) any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations, or (e) any substance prescribed by the regulations to be waste. A substance is not precluded from being waste for the purposes of this Act merely because it is or may be processed, recycled, re-used or recovered. 115Clause 3B of the POEO Waste Regulations prescribes the following circumstances for the purpose of paragraph (d) of the definition of "waste" referred to in the Dictionary: 3B Definition of "waste" (1) For the purposes of paragraph (d) of the definition of waste in the Dictionary to the Act, the following circumstances are prescribed: (a) in relation to substances that are applied to land, the application to land by: (i) spraying, spreading or depositing on the land, or (ii) ploughing, injecting or mixing into the land, or (iii) filling, raising, reclaiming or contouring the land, (b) in relation to substances that are used as fuel, all circumstances. (2) Subclause (1) (a) does not apply where the substances concerned are either bulk agricultural crop materials or manure. 116Similarly cl 39(1) of Sch 1 to the POEOA is as follows: 39 Waste disposal (application to land) (1) This clause applies to waste disposal by application to land, meaning the application to land of waste received from off site, including (but not limited to) application by any of the following methods: (a) spraying, spreading or depositing on the land, (b) ploughing, injecting or mixing into the land, (c) filling, raising, reclaiming or contouring the land. 117The term "waste facility" is defined in the Dictionary of the POEOA to mean "any premises used for the storage, treatment, processing, sorting, or disposal of waste (except as provided by the regulations). 118Clause 42 of the POEO Waste Regulations states: 42 Special requirements relating to asbestos waste (1) This clause applies to any activity that involves the transportation, disposal, re-use or recycling of any type of asbestos waste, regardless of whether the activity is required to be licensed. (2) A person who carries on an activity to which this clause applies must comply with the requirements specified in this clause in relation to the activity concerned. Maximum penalty: 400 penalty units in the case of a corporation, 200 penalty units in the case of an individual. (3) The requirements relating to the transportation of asbestos waste are as follows: (a) bonded asbestos material must be securely packaged at all times, (b) friable asbestos material must be kept in a sealed container, (c) asbestos-contaminated soils must be wetted down, (d) all asbestos waste must be transported in a covered, leak-proof vehicle. (4) The requirements relating to the off site disposal of asbestos waste are as follows: (a) asbestos waste in any form must be disposed of only at a landfill site that may lawfully receive the waste, (b) when asbestos waste is delivered to a landfill site, the occupier of the landfill site must be informed by the person delivering the waste that the waste contains asbestos, (c) when unloading and disposing of asbestos waste at a landfill site, the waste must be unloaded and disposed of in such a manner as to prevent the generation of dust or the stirring up of dust, (d) asbestos waste disposed of at a landfill site must be covered with virgin excavated natural material or other material as approved in the facility's environment protection licence: (i) initially (at the time of disposal), to a depth of at least 0.15 metre, and (ii) at the end of each day's operation, to a depth of at least 0.5 metre, and (iii) finally, to a depth of at least 1 metre (in the case of bonded asbestos waste or asbestos-contaminated soils) or 3 metres (in the case of friable asbestos material) beneath the final land surface of the landfill site. (5) A person must not cause or permit asbestos waste in any form to be re-used or recycled. (6) In this clause: bonded asbestos material means any material (other than friable asbestos material) that contains asbestos. friable asbestos material means any material that contains asbestos and is in the form of a powder or can be crumbled, pulverised or reduced to powder by hand pressure when dry. 119Pursuant to cls 51 and 51A of the POEO Waste Regulations, the EPA could, in respect of material falling under paragraph (d) of the definition of "waste", grant an exemption that exempts a person or class of persons from complying with licensing requirements for scheduled development work and scheduled activities (premises and non-premises based) and for contributions payable by a licensee of a waste facility contained in the POEOA (ss 47-49 and 88). 120Clause 51A provides as follows: 51A Exemptions relating to certain waste (1) This clause applies to: (a) waste that is waste by virtue of paragraph (d) of the definition of waste in the Dictionary to the Act, and (b) any other waste that is used in connection with a process of thermal treatment, and (c) coal washery rejects (within the meaning of Part 2). (2) The EPA may from time to time grant an exemption under clause 51 that exempts a person or class of persons from any one or more of the following provisions in relation to an activity or class of activities relating to waste to which this clause applies: (a) the provisions of sections 47-49 and 88 of the Act, (b) the provisions of Schedule 1 to the Act, either in total or as they apply to a particular type of activity, (c) the provisions of Part 3 and clauses 45 and 47 of this Regulation. 121The exemptions may be general or specific. Relevantly, two general exemptions had been published in the Gazette pursuant to cl 51A in 2008. These were The recovered aggregate exemption 2008 and The recovered fines exemption 2008. Each exemption was in force during the transportation of the fill from the Banksmeadow Waste Facility to the land. 122The recovered aggregate exemption 2008 provided that the "processor" of the waste had to meet the conditions in section 7 and 8 of the exemption. Relevantly section 7 provided as follows: General conditions 7. This Notice of Exemption is subject to the following conditions: 7.1. The chemical concentration or other attribute of the recovered aggregate listed in Column 1 of Table 2 must not exceed any of the following: 7.1.1. the absolute maximum concentration or other value listed in Column 4 of Table 2, 7.1.2. for characterisation or once-off tests, the maximum average (based on the arithmetic mean) concentration or other value listed in Column 2 of Table 2, and 7.1.3. for routine tests, the maximum average (based on the arithmetic mean) concentration or other value listed in Column 3 of Table 2. 7.2. The recovered aggregate can only be applied to land for road making activities, building, landscaping and construction works. This approval does not apply to any of the following applications: 7.2.1. Construction of dams or related water storage infrastructure, 7.2.2. Mine site rehabilitation, 7.2.3. Quarry rehabilitation, 7.2.4. Sand dredge pond rehabilitation, 7.2.5. Back-filling of quarry voids, 7.2.6. Raising or reshaping of land used for agricultural purposes, and 7.2.7. Construction of roads on private land unless: (a) the relevant waste is applied to land to the minimum extent necessary for the construction of a road, and (b) a development consent for the development has been granted under the relevant Environmental Planning Instrument (EPI), or (c) it is to provide access (temporary or permanent) to a development approved by a Council, or (d) the works undertaken are either exempt or complying development. 123Section 8 provided: Processor responsibilities 8. The following conditions must be met by the processor for this exemption to apply: 8.1. The processor must implement procedures to minimise the potential to receive or process waste containing asbestos. These procedures must be formally documented and the records of compliance must be kept for a period of three years. 8.2. Sampling must be undertaken in accordance with Australian Standard 1141 Methods for sampling and testing aggregates (or equivalent). Sampling and information on sample storage and preparation must be detailed in a written sampling plan. 8.3. Where the recovered aggregate is generated as part of a continuous process, the processor must undertake characterisation and routine sampling according to the requirements listed in Column 1 and Column 2 of Table 3. 8.4. Where the recovered aggregate is not generated as part of a continuous process, the processor may undertake once-off sampling of a batch, truckload or stockpile of recovered aggregate according to the requirements listed in Column 3 of Table 3, for the range of chemicals and other attributes listed in Column 1 of Table 2. 8.5. Where there is a change in inputs that is likely to affect the properties in the recovered aggregate, characterisation must be repeated. Characterisation samples can be used for routine testing and subsequent calculations. 8.6. Processors must keep a written record of all characterisation, routine and/or once-off test results for a period of three years. 8.7. Records of the quantity of recovered aggregate supplied to the consumer and either the consumer's name and address or the registration details of the vehicle used to transport the recovered aggregate, must be kept for a period of three years. 8.8. The processor of recovered aggregate must provide a written statement of compliance to the consumer with each transaction, certifying that the recovered aggregate complies with the relevant conditions of this exemption. 8.9. The processor of recovered aggregate must make information on the latest characterisation and routine test results available to the consumer. 124Sections 10 and 11 of The recovered aggregate exemption 2008 stated: Chemical and other material property requirements 10. This Notice of Exemption only applies to recovered aggregate where the chemical and other attributes listed in Column 1 of Table 2 comply with the chemical concentrations and other values listed in Column 2, Column 3 and Column 4 of Table 2, when analysed according to test methods specified in Column 5 of Table 2. Table 2 Column 1 Column 2 Column 3 Column 4 Column 5 Chemicals and other attributes Maximum average concentration for characterisation Maximum average concentration for routine testing Absolute maximum concentration Test method specified within Section (mg/kg 'dry weight' unless otherwise specified) (mg/kg 'dry weight' unless otherwise specified) (mg/kg 'dry weight' unless otherwise specified)

Mercury 0.5 Not required 1 12.1
Cadmium 0.5 0.5 1 12.2
Lead 50 50 100 12.2
Arsenic 15 Not required 30 12.2
Chromium (total) 40 40 80 12.2
Copper 40 40 80 12.2
Nickel 25 Not required 50 12.2
Zinc 150 50 00 12.2
Electrical Conductivity 1 dS/m 1 dS/m 2 dS/m 12.3
Metal 1% 1% 2% 12.4
Plaster 0.25% 0.25% 0.5% 12.4
Rubber, plastic, cloth, paint, wood and other vegetable matter 0.1% 0.1% 0.2% 12.4

Sampling and testing requirements 11. This Notice of Exemption only applies to recovered aggregate sampled according to the requirements in Table 3. Table 3 Column 1 Column 2 Column 3 Characterisation frequency Routine sampling frequency Once-off sampling frequency 20 composite samples, by taking 1 composite sample from a different batch, truckload or stockpile. This must be repeated every year. 5 composite samples per 4000 tonnes or 5 composite samples per 3 months. 10 composite samples per 4000 tonnes.

125On 1 April 2010 the two 2008 exemptions were replaced and updated by The recovered aggregate exemption 2010 and The continuous process and batch process recovered fines exemption 2010. The 2010 exemptions were updated again on 13 September 2010. 126The recovered aggregate exemption 2010 imposed slightly less stringent threshold criteria for certain contaminants by increasing the maximum average concentration required for characterisation as recovered aggregate (especially for "lead" and "rubber, plastic, paper, cloth, paint, wood and other vegetable matter"). 127Sections 7 and 11 of The recovered aggregate exemption 2010 remained in identical form to the equivalent sections of The recovered aggregates exemption 2008. 128The application of The recovered aggregate exemptions 2008 and 2010 in part depend on: (a) meeting the maximum average concentrations for routine testing criteria under column three of clause 10 of the exemptions; and (b) that the material be used for road making activities, assuming the waste is applied to the land to the minimum extent necessary, or building, landscaping or constructions works. 129The DECCW Guidelines on Resource Recovery Exemptions (Land Application Of Waste Materials As Fill) 2011 outlines the policy and process of applying to DECCW for a resource recovery exemption under cls 51 and 51A of the POEO Waste Regulations. In the section entitled "General Information about Exemptions" the Guidelines state: Adhering to the conditions of an exemption does not provide a defence against offences such as the pollution of land (section 142A) or water (s 120) and special requirements relating to asbestos waste (clause 42). ... Note: Resource recovery exemptions will not be made retrospective. DECCW is able to issue either general or specific exemptions. 130The DECCW Waste Classification Guidelines Part 1: Classifying Waste (April 2008, revised December 2009) stipulate the following relevant "General classification principles": If asbestos is mixed with other waste to form asbestos waste, the waste must continue to be assessed in accordance with these guidelines to enable the disposal of the asbestos waste at an appropriate waste facility. Asbestos waste must then be managed to meet the management and disposal requirements of both asbestos and the other class of waste with which it is mixed (if any). 131Special waste is defined in the Waste Classification Guidelines to mean "any of the following: ... asbestos waste". 132The terms "asbestos" and "asbestos waste" are defined as follows: Asbestos means the fibrous form of those minimal silicates that belong to the serpentine or amphibole groups of rock-forming minerals, including actinolite, amosite (brown asbestos), anthophyllite, chrysotile (white asbestos), crocidolite (blue asbestos) and tremolite. Asbestos waste means any waste that contains asbestos WMA 133Section 91 of the WMA relevantly states: 91 Activity approvals (1) There are two kinds of activity approvals, namely, controlled activity approvals and aquifer interference approvals. (2) A controlled activity approval confers a right on its holder to carry out a specified controlled activity at a specified location in, on or under waterfront land. 134The term "waterfront land" is defined in the Dictionary of the WMA to mean: waterfront land means: (a) the bed of any river, together with any land lying between the bed of the river and a line drawn parallel to, and the prescribed distance inland of, the highest bank of the river, ... where the prescribed distance is 40 metres or (if the regulations prescribe a lesser distance, either generally or in relation to a particular location or class of locations) that lesser distance. Land that falls into 2 or more of the categories referred to in paragraphs (a), (a1) and (a2) may be waterfront land by virtue of any of the paragraphs relevant to that land. 135Section 91E relevantly provides: 91E Carrying out controlled activity without, or otherwise than as authorised by, a controlled activity approval (1) A person: (a) who carries out a controlled activity in, on or under waterfront land, and (b) who does not hold a controlled activity approval for that activity, is guilty of an offence. Penalty: Tier 2 penalty. (2) The holder of a controlled activity approval who carries out a controlled activity in, on or under waterfront land otherwise than as authorised by the approval is guilty of an offence. Penalty: Tier 2 penalty. 136The term "controlled activity" is defined in the Dictionary of that Act to mean: controlled activity means: (a) the erection of a building or the carrying out of a work (within the meaning of the Environmental Planning and Assessment Act 1979), or (b) the removal of material (whether or not extractive material) or vegetation from land, whether by way of excavation or otherwise, or (c) the deposition of material (whether or not extractive material) on land, whether by way of landfill operations or otherwise, or (d) the carrying out of any other activity that affects the quantity or flow of water in a water source. 137A controlled activity approval means an approval referred to in s 91(2) of the WMA.

EPAA and the EPA Regulations 138Section 76A(1)(a) of the EPAA states: 76A Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, ... 139Clause 32 of Sch 3 the EPA Regulations states: 32 Waste management facilities or works (1) Waste management facilities or works that store, treat, purify or dispose of waste or sort, process, recycle, recover, use or reuse material from waste and: (a) that dispose (by landfilling, incinerating, storing, placing or other means) of solid or liquid waste: (i) that includes any substance classified in the Australian Dangerous Goods Code or medical, cytotoxic or quarantine waste, or (ii) that comprises more than 100,000 tonnes of "clean fill" (such as soil, sand, gravel, bricks or other excavated or hard material) in a manner that, in the opinion of the consent authority, is likely to cause significant impacts on drainage or flooding, or (iii) that comprises more than 1,000 tonnes per year of sludge or effluent, or (iv) that comprises more than 200 tonnes per year of other waste material, or (b) that sort, consolidate or temporarily store waste at transfer stations or materials recycling facilities for transfer to another site for final disposal, permanent storage, reprocessing, recycling, use or reuse and: (i) that handle substances classified in the Australian Dangerous Goods Code or medical, cytotoxic or quarantine waste, or (ii) that have an intended handling capacity of more than 10,000 tonnes per year of waste containing food or livestock, agricultural or food processing industries waste or similar substances, or (iii) that have an intended handling capacity of more than 30,000 tonnes per year of waste such as glass, plastic, paper, wood, metal, rubber or building demolition material, or (c) that purify, recover, reprocess or process more than 5,000 tonnes per year of solid or liquid organic materials, or (d) that are located: (i) in or within 100 metres of a natural waterbody, wetland, coastal dune field or environmentally sensitive area, or (ii) in an area of high watertable, highly permeable soils, acid sulphate, sodic or saline soils, or (iii) within a drinking water catchment, or (iv) within a catchment of an estuary where the entrance to the sea is intermittently open, or (v) on a floodplain, or (vi) within 500 metres of a residential zone or 250 metres of a dwelling not associated with the development and, in the opinion of the consent authority, having regard to topography and local meteorological conditions, are likely to significantly affect the amenity of the neighbourhood by reason of noise, visual impacts, air pollution (including odour, smoke, fumes or dust), vermin or traffic. 140"Waste" is defined in Pt 4 cl 38 of Sch 3 of those Regulations to include: waste includes any matter or thing whether solid, gaseous or liquid or a combination of any solids, gases or liquids that is discarded or is refuse from processes or uses (such as domestic, medical, industrial, mining, agricultural or commercial processes or uses). A substance is not precluded from being waste for the purposes of this Schedule merely because it can be reprocessed, re-used or recycled or because it is sold or intended for sale.

Surveying Evidence 141The council relied on a report from Mr Bernard Moriarty, a registered surveyor and director of Vekta Pty Limited. Mr Moriarty prepared an aerial survey report of the land on 31 May 2010. Mr Moriarty has particular expertise in the interpretation of aerial photography. 142Mr Moriarty was requested to compare 2010 aerial photographs (exposed on 15 May 2010) of the land with those in existence as at 2005 (prior to the works the subject of these proceedings) in order to provide an analysis of what trails were in existence before the works commenced, the location of any newly constructed roads and newly cut tracks, an assessment of pre-works land levels, including excavation and fill, to allow a comparison with the post-works levels obtained from a surveyor and an analysis of the Flora and Fauna Report to determine if, having regard to the comparison between the 2005 and 2010 photographs, any clearing had occurred within the EEC on the land (the Shale Hills Woodland). The post-works aerial photographs were obtained by flying over the land. 143A survey of the post-works levels and contours of the land was prepared by Mr Gary (Gus) Warren from the surveyors Lean & Hayward Pty Ltd for this purpose ("the Lean & Hayward survey"). 144The 2005 and 2010 aerial photographs and the Lean & Hayward survey were used to create maps of the land as at 2005 and 2010. 145A comparison of the 2005 and 2010 aerial photographs revealed the following: (a) there were two areas where fill had been added on the land. In the first area, 9,074m3 had been added to the volume of the land and in the second area, the volume had increased by 12,356m3; (b) three new tracks, in the same general location as those nominated in the Flora and Fauna Report forming part of the 2009 consent, could be seen on the 2010 map. However, an additional eight new tracks were also evident that were not depicted in that Report. One of those new tracks coincided with a natural watercourse on the land; (c) there had been clearing within the Shale Hills Woodland EEC. Having regard to Appendix 8 of Mr Moriarty's report, the clearing within the Shale Hills Woodland could be described as being at the lower end of the scale; and (d) a comparison between the Flora and Fauna Report and the construction certificate plans revealed a road in a different location to that approved in the 2009 consent.

Environmental Engineering Evidence 146Dr Daniel Martens was the civil and environmental engineering expert retained by the council. He swore an affidavit on 28 February 2011, upon which there was partial reliance by the council. 147Relevantly, in his affidavit Dr Martens analysed the test results annexed to an affidavit of Mr Foxman (not read in the proceedings). The analysis established that of the 11 sampling runs provided by Mr Foxman, six failed to meet The recovered aggregate exemption 2010 and that if assessed against The recovered aggregate exemption 2008, which was the relevant exemption at the time the tests were carried out, "the failures are even greater". One of the six failures was, Dr Martens noted, occasioned by the fact that the sample run returned a positive result for the presence of asbestos. 148Mr Andrew Lau gave expert engineering evidence on behalf of the Foxman entities. 149The experts, Mr Lau and Dr Martens, provided two joint expert reports dated 2 February and 3 March 2011. In the first joint report, the experts opined as to the following: (a) that the fill material located in the Western and Eastern Fill Areas had been imported to the land. However, the fill material found within the eastern watercourse (WC2) was sourced locally from the adjacent bed and banks and had not been imported, and therefore, was not contaminated; (b) that the imported fill could not be classified as virgin excavated natural material ("VENM"), excavated natural material ("ENM") or recovered fines; (c) in respect of whether or not the imported fill could be classified as recovered aggregates under the 2010 exemption, Mr Lau was of the opinion that 95% or more of the fill materials could be classified as recovered aggregate and that less than 5% could not. The fill material that could not, comprised approximately 600 tonnes. Mr Lau agreed that the asbestos contaminated material could not be classified as recovered aggregate under either the 2008 or 2010 exemptions and he accepted that less material met the criteria for inclusion under the 2008 exemption. By contrast, Dr Martens was of the view that none of the materials met either the 2010 or 2008 exemption. In part, Dr Martens relied on test data provided by Mr Lau. For example, his data showed that the arithmetic mean across all of his sampling sites for lead exceeded the current recovered aggregate exemption criteria. Dr Martens noted that the 2008 criteria were significantly more stringent than the 2010 criteria; (d) for material that did not comply with either the 2008 or 2010 recovered aggregate exemptions the waste could, according to Mr Lau, be classified as either special waste, or general solid waste. The experts agreed that the asbestos waste would be classified as special waste; (e) both experts agreed that the fill material contained asbestos and that the nature of the asbestos was that of bonded asbestos. Soil asbestos fibres had not been detected to date. In this regard, Dr Martens was adamant that more sampling was required to demonstrate that asbestos fibres were not present in the fill material. Dr Martens was of the opinion that "there is risk that, on the basis of the large volume of fill, the high frequency of visible surface asbestos, limited testing and extensive use of earthmoving machinery on the fill, that bonded and friable asbestos would also be present within the fill"; (f) in relation to the extent of the asbestos, the views of the experts differed. Mr Lau noted that no asbestos had been identified at depth throughout the fill profile and that it had only been confirmed as present on the ground surface and in surface soils. In the event that asbestos was present in the fill profile, Mr Lau was of the opinion that neither the nature or the extent of the asbestos present was at levels which posed a risk to human health relying on the Western Australian Department of Health Guidelines for the Assessment, Remediation and Management of Asbestos Contaminated Sites in Western Australia (2009) ("Western Australian Guidelines"). By contrast, Dr Martens was of the view that the fill, not just the fill surface, contained asbestos because: (i) the fill was largely relatively homogenous and from the same source; (ii) there was no physical mechanism in place which would cause asbestos to only occur near the surface; (iii) when fill was placed on the land, earthmoving equipment (graders and trucks) would mix any fill placed, thereby ensuring that the asbestos contained within the fill was evenly distributed throughout the fill profile; (iv) even with the limited testing that had been undertaken, asbestos had been observed below the surface and on the fill batters, exposed by slumping, erosion and slope movements; (v) there had not been sufficient sampling, given the large volume of fill, to conclude with confidence that asbestos was confined to the surface; and (vi) the EPA did not provide criteria for an acceptable level of asbestos in fill, rather it classified all material contaminated with asbestos, irrespective of the quantity, as special waste. To the extent that Mr Lau relied on the Western Australian Guidelines in support of his contentions, Dr Martens noted that the EPA did not formally recognise these guidelines. Moreover, Mr Lau had not undertaken a level of testing and analysis to demonstrate compliance with those guidelines; (g) in terms of sampling, Mr Lau relied on The recovered aggregate exemptions to state that 10 composite samples per 4000 tonnes of material was adequate. In the event that additional sampling was required to confirm the extent of asbestos, Mr Lau accepted a sampling frequency consistent with the Western Australian Guidelines. This sampling density is equivalent to double the sampling density provided in the EPA's Contaminated Sites Sampling Design Guidelines (1995). Dr Martens disagreed noting, first, that The recovered aggregate exemptions criteria were intended for material classification during the production process rather than following the application of fill to land as in the present case. Second, if the 10 composite samples per 4000 tonnes was to be strictly applied, this would equate to 50 discrete sampling locations per 4000 tonnes to ensure that the sampling adequately represented the material placed on the land. Dr Martens relied in this regard on the Lean & Hayward survey that stated approximately 15,700m3 of fill had been imported to the land (equating to approximately 25,000 tonnes) and that, therefore, 313 sites would need to be sampled. Third, and in any case, there had been insufficient sampling undertaken to demonstrate the extent and severity of the asbestos at the site; and (h) both experts agreed that the EPA had undertaken insufficient testing to characterise the entire body of fill material. The limited testing confirmed, however, the presence of bonded asbestos on the land and supported the commonly accepted view that lead and foreign materials in at least some of the fill exceeded the criteria in The recovered aggregates exemptions. 150In their second joint report, the experts expressed the following views: (a) with respect to the future on site management of the asbestos contaminated material, Mr Lau and Dr Martens agreed that all identified asbestos contaminated material should be removed to an appropriate facility licensed to receive it. However, Mr Lau noted that sampling had confirmed the absence of asbestos in parts of the fill material, and therefore, to address any potential risks posed by any possible asbestos contaminated material which may remain in residual fill materials, but which had not yet been identified during the testing conducted to date, an appropriate environmental management plan should be developed and implemented. By contrast, Dr Martens was of the opinion that there had been an adequate level of asbestos testing and visual inspections to confirm that the entirety of the fill was likely to be contaminated with classified asbestos waste and all of it should be removed. This view was based on the following: (i) each time an inspection had taken place more positive asbestos identifications had been made; (ii) the sampling undertaken on the Eastern and Western Fill Areas in no way demonstrated that some areas were unaffected by asbestos contamination; (iii) the very limited time devoted to asbestos identification at any given test site meant that an absence of visual confirmation did not mean the absence of asbestos at that test site. The visual identification of asbestos within the fill was a notoriously difficult and laborious task given the granulated nature of the fill, its relatively uniform colouration, the presence of fines and elevated moisture levels; (iv) as a consequence of the matters referred to immediately above, any environmental management plan that relied on visual identification of asbestos would be "fundamentally flawed"; (v) any fire trail or remedial works which sought to retain existing fill would require extensive earthworks which would result in further exposure and reworking of significant quantities of asbestos; and (vi) once the fill had been removed in its entirety, then it would be appropriate for a management plan to be implemented in order to rehabilitate the site; (b) the experts agreed that asbestos was found at depth within the fill; (c) the experts agreed that no further sampling should be undertaken at the site, although they differed as to the reasons why. It was Mr Lau's opinion that further sampling was not necessary because of the adequacy of the sampling to date. Whereas, it was Dr Martens' opinion that further sampling would only confirm the widespread existence of asbestos throughout the fill; (d) the experts agreed that supplementary testing of the fill demonstrated that average lead levels across the site did not meet The general aggregate exemptions criteria; (e) the experts agreed that no additional testing was needed in relation to The recovered aggregate exemptions; (f) insofar as some of the imported fill material did not meet The recovered aggregates exemption criteria, there was no agreement as to how this material should be managed. Mr Lau was of the opinion that the reported concentrations of lead from the investigations undertaken on the land to date did not indicate a likely unacceptable risk to human health or the environment, and therefore, could remain on site. Moreover, it was his view that the removal of the materials from the land to another location would only result in an increased risk of more adverse environmental impacts. It was therefore recommended by Mr Lau that an environmental management plan be prepared and implemented to appropriately manage the materials. Dr Martens, however, concluded that the fill was properly classified as "special waste - asbestos waste" and as such did not meet the exemptions and should be removed from the land. Moreover, to date, there had been an inadequate level of site investigation to address the issue of potential risks to human health and the environment from other contaminants within the fill; and (g) setting aside the issue of the asbestos contaminated material, the experts did not agree about whether additional testing should be undertaken in relation to the risk that the fill posed to human health and the environment. According to Mr Lau, comprehensive testing had already been undertaken in accordance with relevant guidelines and this testing, and the data obtained from various inspections, resulted in a sufficient level of characterisation of the materials to permit the drawing of conclusions regarding the risks posed to human health and the environment. Dr Martens, however, opined that more testing would be required to characterise the waste material and the potential risk that the waste posed to human health and the environment. 151In summary, Dr Martens and Mr Lau agreed on the following matters. First, that the identified asbestos contaminated material should be removed from the land. Second, that asbestos was found at the surface and at depth within the fill material. Third, that no additional asbestos sampling should be undertaken (according to Mr Lau, because the testing to date was adequate, whereas according to Dr Martens, because the testing to date, together with the visual inspections, permitted the inference that all of the fill was contaminated with asbestos). Fourth, in relation to the exemptions, none of the material could be classified as VENM, none met The recovered fines exemptions and none met The recovered aggregates exemptions. Fifth, one of the primary reasons for The recovered aggregates exemptions not being met was that the average lead levels across the site exceeded the exemption criteria at the time the fill was placed. This was because the arithmetic mean of lead concentrations in the samples taken by Mr Lau in October 2010 across all of his chosen sampling sites was 82.5mg/kg, where as the maximum average concentration for characterisation and routine testing was stipulated as 75mg/kg under The recovered aggregate exemption 2010 and the maximum average concentration for characterisation and routine testing was stipulated as 50mg/kg under The recovered aggregate exemption 2008. 152The concurrent questioning of Mr Lau relevantly revealed the following: (a) he agreed that, had it been occupationally safe to do so, the use of an excavator would have been a preferable method to carry out intrusive investigations for the presence of asbestos in the fill as an alternative to the use of bore holes; (b) he agreed that if material that did not comply with The recovered aggregate exemption 2008, while it was not special waste it should be classified as general solid waste, and that unless it could be classified as another category of waste, it was appropriate to remove the material from the land and take it to a landfill licensed to receive it; (c) it was his evidence that "hot spots" (that is, areas of concentrated levels of contaminants, including asbestos) were dealt with by the absolute maximum concentrations in The recovered aggregate exemption rather than the average concentration. It was his opinion that the average concentration was there to ensure "that the entire body of fill materials is appropriate but the absolute maximum concentrations are there to deal with hot spots" (T154.28-154.29). Thus, once the "hot spots" which exceed the absolute maximums were removed, the remaining average concentrations would decrease. Likewise, once you remove some of the fill material, the remaining average concentration of particular contaminants would decrease. Therefore, it could not be concluded that if, for example, the average concentration of lead contained in a localised area failed the relevant exemption then all of the material from which the average was derived also failed. In other words, the fact that the average of the samples taken did not comply with the threshold specification in The recovered aggregate exemption did not mean that the material tested did not meet the exemption, rather only a small part of the material did not meet the criteria specified in the exemption; (d) he was of the opinion that because there were some parts of the fill material which had higher lead concentration than others, it was possible to remove those parts of the fill material as distinct from removing all of the fill material; (e) he agreed that he had engaged in an exercise with Dr Martens to go through the process of removing lead hot spots in order to decrease the average lead concentration of the materials on the land. He accepted that there were "a number of spots required to bring that average down" but he did not agree that it was unworkable or impracticable. On the contrary, he was of the view that "it's still much simpler than removing all of the raw material from the site" (T218.22-218.25); (f) that the median concentration of lead derived from the testing was significantly above the threshold specified in the relevant exemption and that the lead values which exceed the average were widely distributed amongst the data notwithstanding that there were a significant number of samples which were below the average criteria contained in the exemption; (g) he accepted that the method of transportation and deposition of the fill material from BBR to the land resulted in the grinding up into very small pieces of the demolition waste contained in the fill material; (h) he agreed that "with any fill material there may well be other contaminants which have not been identified through the testing process" (T181.32). In relation to the material to be retained on site, Mr Lau agreed that the Foxman entities proposed to excavate, mix, compact and break up the fill with the following attendant risk (T182.11-182.24): HOWARD: If there are any small asbestos fragments in the fill material then you would accept, would you not, that the process of compacting it for example would create a risk of releasing airborne fibres from the fragments? WITNESS LAU: There is a potential for that, yes. That is why I've proposed and why I am of the belief that an environmental management plan setting out the procedures to address those possible risks is put in place. HOWARD: You're not suggesting that either you or anyone else has prepared such a plan? WITNESS LAU: Not at this stage, no, but I've certainly prepared similar plans for other sites. (i) he was not aware when he prepared his evidence that there had been a positive finding by ALS of asbestos in material tested by it at the storage bay at BBR, which was also consistent with asbestos contaminated material tested from samples taken on the land; (j) he accepted "that asbestos fragments are difficult to find in any fill and including the fill for this site" but it was nevertheless his opinion that the Court could only conclude that asbestos was present in locations where it was actually found (T173.10); (k) he did not accept that Dr Martens' assessment was based on random sampling; (l) the opinion expressed by him that approximately 90 to 95% of the fill material on the land met The recovered aggregate exemption 2010 was only in respect of chemical criteria and foreign material. Mr Lau did not take into account the criteria contained in either conditions 7.2 or 8 of the exemption when assessing whether or not the test data met the exemption; (m) he agreed that it was not appropriate to apply the 2010 exemption retrospectively, that is to say, in an attempt to analyse material that had already been applied to the land and retrospectively determine whether or not it fell within the exemption. Accordingly, for the period September 2009 through to March 2010 The recovered aggregate exemption 2008 was the relevant exemption to use in classifying the deposited material. The 2010 exemption did not commence until September of that year; (n) he agreed that he had not followed the "backfill material validation" procedure stipulated in the EPA's Contaminated Sites Sampling Design Guidelines (September 1995) in section 4.1.2. This was because the history of the fill placed on the land precluded its application, namely, that the materials were from aggregates and building demolition waste which had been transported to the Banksmeadow Waste Facility prior to being transported and placed on the land; (o) he accepted that the composite samples were not lateral composites, but were vertical composites only. This was also contrary to the Contaminated Sites Sampling Design Guidelines. In particular, Mr Lau accepted that he had not carried out the procedure specified in paragraph 4.1.2 to determine to a 95% upper confidence limit that the majority of the fill material was exempt under The recovered aggregate exemption. Similarly Mr Lau had not applied the Minimum Sampling Points Required for Site Characterisation Based on Detecting Circular Hot Spots by Using a Systematic Sampling Pattern contained in Table A of the Contaminated Sites Sampling Design Guidelines because in his opinion it was "potentially the most inappropriate sampling regime which could be applied to this material" (T185.32) because the materials placed on the land were deposited in layers and the only way to collect a composite sample of the material was vertically; and (p) he stated that an environmental management plan to manage residual asbestos in the soil at a site would generally identify what remained at the site or what may remain at the site; the potential risks posed by those materials; the responsibilities and control measures to manage those risks; the monitoring and clearance procedures; and the auditing procedures to ensure that over time the provisions of the plan were implemented. Any environmental management plan would include an element of visual identification of asbestos but that would not be all that the plan contained. 153The concurrent questioning of Dr Martens revealed that: (a) he agreed that it was "very difficult to strictly apply" the guidelines contained in The recovered aggregates exemption and the sampling regime in the exemption to the site; (b) he accepted that one of the consequences of the material complying with The recovered aggregate exemption was that it was deemed to be acceptable environmentally for material of that composition to be used for the purpose identified in the exemption; (c) he agreed that the only reference in that exemption to asbestos was in relation to a processor's responsibility to minimise asbestos, which was a recognition that it was very difficult to remove it completely from the material sought to be classified as recovered aggregate; (d) he did not accept that the material on the land fell within the category of being used for the purpose described in The recovered aggregate exemption 2010 because the fill had not been placed to the minimum extent required or necessary for the construction of the road pursuant to condition 7.2.7(a) in that exemption; (e) it was his opinion that the only way of retaining the asbestos contaminated material was entombment whereby the contaminated material would be covered with some other material both underneath and on top. However, he accepted that if the asbestos contaminated material was taken to a licensed facility able to receive such waste it would be treated by being dumped on the surface of the facility and then covered with soil and ultimately buried; (f) in examining alternatives to offsite removal, such as entombment on site, it was difficult for him to envisage any other practical alternatives to that of offsite disposal. In particular, entombment would be "quite a difficult matter to progress at this site because of the steep slopes and the nature of the soils and the ridge lines and valleys that are present on the site" (T224.33); (g) he understood that the asbestos found "to date" on the land was bonded asbestos. But he maintained his position that, unless entombed, even bonded asbestos posed a risk because it could suffer a trauma that would break it down and this could occur by way of water action, sediment action, compaction or rolling. However, he accepted that if a piece of asbestos located a metre below the surface and the material was compacted, so that the piece was not exposed or handled, then the risk would be "close to negligible"; (h) he later qualified his evidence that "to date" only bonded asbestos had been found in the fill material. He stated the sampling undertaken in relation to the asbestos had been in relation to a very small volume of material. It made him feel "very uncomfortable" that only 0.25m3 out of around 16,000m3 had been sampled; (i) nevertheless in his opinion all of the asbestos contaminated material had to be removed because (T202.19-T202.40): WITNESS MARTENS: Well it needs to be removed - it is special waste, it is asbestos waste. Mr Lau and I disagree I suppose in the sense that he believes some of it can stay and whatever stays has to be very significantly reworked through earthworks and that will further expose any material that is at depth and on the surface. It will further crush it, remobilise it, shift it, compact it, break it down. CLAY: Each of the same processes which occur when it's removed? WITNESS MARTENS: Not at all. When it's removed it's taken with a bucket and an excavator and put into a truck. It's not reworked, it's not crushed-- CLAY: There's compaction. WITNESS MARTENS: --it's not broken up. ... WITNESS MARTENS: It's a very different process. The truck is covered, the covered truck is taken to a disposal facility. At this site here the material has been so poorly placed that to actually make the material stable requires extensive civil engineering works and I know we're digressing here but-- Thus he was critical of the proposal by Mr Lau to "cherry pick" certain parts of the fill and leave other parts which could be dealt with by an environmental management plan. Dr Martens noted that this would leave "large holes" in the fill which would, in order to remediate them, involve a degree of reworking; (j) he maintained his opposition to Mr Lau's proposal to remove only those parts of the fill which had a higher lead content, rather than removing all of the fill by reason of its high average lead content. It was his view that it would be very difficult to make that work on the land. This conclusion was based on the trial exercises using Mr Lau's test results undertaken during the first joint conference between himself and Mr Lau, the result of which was to produce a site "that had lots and lots of holes in it". Accordingly, it was his opinion that it was a very impractical way of removing everything that was recorded as exceeding the exemption criteria in order to "massage" the average. Furthermore, it would be difficult to recalculate the averages based on the remaining fill material and further testing would be required. He stated, by way of conclusion, "I just think it's a very impractical manageable process that's going to leave you with the entire site riddled with excavation points" (T217.46); (k) he agreed that sampling requirements contained in guidelines may require variation depending on the individual site, for example an individual assessor may judge that the nature of the site was such as to require more sampling; (l) he acknowledged that he had never prepared an environmental management plan for asbestos. His recommendation had always been to remove any asbestos contaminated material from the site. He was aware, however, that there were environmental management plans dealing with the retention of asbestos on sites and that these plans regularly provided that visual inspection, identification and removal of asbestos were part of those plans. But Dr Martens went on to express the view that in relation to the land the subject of these proceedings, any environmental management plan that relied solely on visual inspection of asbestos would be "fundamentally flawed" because the very small amount of material that had been sampled meant that it was difficult to confidently identify all of the asbestos contained in the fill material. In addition, identification was difficult because the asbestos was "partly crushed up, it's moist, it's covered with sediment" (T202.2-202.3). However, he agreed that if the environmental management plan stated that the asbestos contaminated material should be entombed on site by way of remediation then its retention on the land would be possible; (m) while he recalled stating at the meeting on 26 May 2010 that Mr Foxman should lodge a development application together with an environmental impact statement to regularise the deposited fill material on the land, he noted that he had not, at that stage, received any testing data from Mr Foxman nor had the council calculated the volume of fill. Nevertheless he agreed that at that meeting a process had been discussed by which some or all of the material would be retained on the land subject to the council being satisfied that there was no harm to the environment or risk to public health. He again reiterated that if the asbestos contaminated material could be safely entombed on the site, it was possible that this position remained a viable alternative to total removal. However, because no detailed environmental management plan or remediation action plan had been prepared with respect to this alternative, he could not comment further. Subsequently, he acknowledged that he had not been shown any prepared remediation action plan; (n) he accepted that if sufficient information at a development application stage was put before the council, it was possible that a condition of any consent could be to require an approved environmental management plan prior to the commencement of any works necessary to allow appropriate retention of the contaminated fill and any associated remediation works; (o) he accepted that there were some practitioners that used the Western Australian Guidelines in New South Wales. He also accepted that there were draft national guidelines for the assessment, remediation and management of asbestos contaminated sites and that the draft incorporated the Western Australian Guidelines. Accordingly, Dr Martens was not critical of practitioners who applied the Western Australian Guidelines where they considered that they applied. Dr Martens agreed that the Contaminated Sites Guidelines for the NSW Site Auditor Scheme (2006) was also a document relevant to the circumstances under consideration; and (p) he accepted as a matter of environmental outcome, that if waste material could be recycled and reused it was preferable for it to be used as landfill and that "there may well be an environmentally sound way to retain some of the material on site" but that it had not yet been demonstrated to him (T212.43-212.47).

Town Planning Evidence 154Over the objection of the council, the report of Mr Andrew Darroch, a consultant town planner, was admitted into evidence and relied upon by the Foxman entities. Mr Darroch had, at their request, prepared a development application in respect of the land for the purpose of: Remediation of imported fill; remediation and restoration of watercourses; use of fire trails, across roads and northern dam, bulk earthworks to complete fire trails and across roads, bush regeneration and wood eradication, construction of welling, pooling and garage with infrastructure, bushfire management. 155Attached to the development application was a Statement of Environmental Effects prepared in December 2010 ("the 2010 SEE"). 156The 2010 SEE relevantly stated the following with respect to "Asbestos Containing Materials on Ground Service" (footnotes omitted): A total of nine fragments of ACM were observed on the ground surface during these investigations. All of the fragments of ACM observed during these investigations were present in a bonded (i.e., cement matrix) form and not friable. The ACM fragments identified during these investigations were removed from the site. Should any other ACM fragments remain present on the ground surface at the site then these fragments are classified as Special Waste (Asbestos Waste) under DECC 2009 and must be removed from the site and taken to an appropriately licensed waste facility. Air monitoring conducted as part of these investigations did not report any detectable concentrations of asbestos fibres in the air near the fill areas or at the property boundaries. On this basis, it is considered that the minor quantity of isolated fragments of bonded ACM on the ground surface of the fill materials do not pose any risk to site occupants or the surrounding environment (including neighbouring residents). Since no asbestos was fibres [sic] were reported above the laboratory limit of reporting (0.1 g/kg) in samples of fill materials throughout the fill profile in both these investigations and in previous investigations (MA 2010), it is considered that the fill materials have not been impacted with asbestos at levels able to be detected using the sampling and analytical methods employed as part of the investigations. As such, the fill materials have not been identified as containing asbestos and are considered not to be Special Waste (Asbestos Waste), as defined under DECC 2009. It is noted that, during the previous investigations (MA 2010), ACM fragments were reported at the surface of the fill materials at sample location TP8. It is unclear from the documentation provided in the previous report (MA 2010) whether the ACM was observed on the surface (0.0 mbgs) or in the upper sampling interval (0 - 0.3 mbgs). Since ACM was identified only on the ground surface during this investigation, it has been assumed that the ACM identified at location TP8 as part of the previous investigations was also identified on the surface. However, given the uncertainty surrounding the precise depth of the identified ACM as part of the previous investigation at location TP8, as a precaution, a shallow scrape of fill materials at location TP8 should be undertaken and the small quantity of shallow surface will material at this location also removed from the site as Special Waste (Asbestos Waste). Following removal of the isolated fragments of ACM on the ground surface of the fill materials in both the eastern fill area and western fill area, together with the shallow surface scrape of fill materials at location TP8 for precautionary reasons, the ground surface should be inspected by a suitably qualified and experienced environmental or occupational hygiene professional and validated as being free of any visible fragments of ACM. 157With respect to the "Classification of the Fill Materials", the 2010 SEE described the remaining fill as follows:

More than 95% of the fill materials meet the acceptable levels of Recovered Aggregates and are not considered to be waste.
Less than 5% of the fill materials are not able to be classified as Recovered Aggregates, being present in two separate areas:
Western Fill Area - in a cluster of three adjoining sample locations (JSB18, JSB27 & JSB28), located in the northern portion of the western fill area. It is estimated that approximately 250 tonnes of material out of a total estimated quantity of 15 647.25 tonnes do not meet the Recovered Aggregates Exemption. The causes of the exceedance are marginally elevated foreign materials (0.36% - 0.41% in comparison to the allowable limit of 0.3%) and a marginally elevated level of lead (200 mg/kg in comparison to the allowable limit of 150 mg/kg).
Eastern Fill Area - at a single isolated location (JSB03), located midway down the fire access trail constructed in the eastern fill area. It is estimated that approximately 150 tonnes2 of materia out of a total estimated quantity of 15 647.25 tonnes do not meet the Recovered Aggregates Exemption. The cause of the exceedance is a marginally elevated level of lead (160 mg/kg in comparison to the allowable limit of 150 mg/kg).
The waste classification of the <5% of the fill materials which are not able to be classified as Recovered Aggregates is General Solid Waste, based on total and leachable concentrations in accordance with DECC 2009. None of the waste fill materials are classified as Restricted Solid Waste or Hazardous Waste.
None the [sic] fill materials are able to be classified as Recovered Fines, due to the proportion of foreign materials retained on the 9.5 mm and 26.5 mm sieves. In addition, a single pH value marginally exceeds the allowable levels. 158The additional fill estimates in the 2010 SEE were based on the assumptions contained in a report by Jeffery and Katauskas Pty Ltd ("Jeffery and Katauskas"), consulting geotechnical and environmental engineers, dated 2 December 2010 and annexed to the 2010 SEE ("the Jeffery and Katauskas Report), were that an additional "17,870m3 or 33,000 tonnes" of fill material would be required to be imported to the site. 159At 4.4.22 of the Jeffery and Katauskas Report, Mr Bruce Walker, the author of the Report, opined: The fill being used is predominately a granular processed demolition material, which I assess would typically be a sandy gravel with some fines, based on my observation and limited tactile assessment at two locations (for example, refer paragraph 3.4.3) and the specification grading for R2 Sub-base attached to the VDM Consulting letter of 12 October 2010 (Appendix B). Such material would usually be amendable to compaction using appropriate rollers and with the addition of water to aid compaction. I note that these materials provide an 'all weather' surface with superior trafficability in wet weather to the natural clay soils present at the site, as discussed further below. During my supplementary site visit the 'sloping' tracks with a grassed or clay surface were judged not to be trafficable by four-wheel drive due to rainfall. 160The 12 October 2010 VDM Consulting letter, provided with the Jeffery and Katauskas Report, was very similar to the 11 October 2010 VDM Consulting letter sent to the EPA on 19 October 2010. It was provided at the request of Mr Foxman to "ascertain the suitability of recycled materials derived from construction and demolition waste to be used as fire trail road construction material" on the land. The letter noted that the fire trail was to be built from the following construction materials sourced from the BBR yard at the Banksmeadow Waste Facility. The test results inexplicably differed from those contained in the 11 October 2010 version of the VDM Consulting letter. Relevantly there was no mention of asbestos: A sample of the proposed recycled crushed material has been tested and analysed by Resource Laboratories. A copy of their test report is attached to this letter. The 4 day soaked Californian Bearing Ratio (CBR) test produced the following results:

Foreign Material (Max Allow %) Metal 0.1 Glass and Ceramics 4.9 Plaster 1 Rubber, plastic, paper, cloth & paint 0.3 Wood & vegetable matter 1

The above results show that the ex-yard RA possesses a satisfactory CBR strength but does not satisfy maximum allowable percentages of foreign material nominated by the Protection of the Environment Operations (Waste) Regulations for exempt material. Nevertheless it is noted that RCA exempt material is typically used as an alternative to dense grade base materials in upper basecourse layers. 161In conclusion, the 2010 SEE stated: The site analysis undertaken as part of this environmental assessment has been comprehensive. There are no significant environmental issues that have arisen in any of these analyses and as such the proposed development will have negligible environmental impact. In fact the restoration of the natural watercourses, riparian corridors and woodland areas will have a significant environmental dividend for the site and the broader landscape. The visual impact has been ameliorated via the retention of the most significant tree specimens across the site and the wooded area. The rehabilitation and regeneration will occur around the fire trail and access road batters to integrate these elements into the site. Significant weed eradication and management is proposed. ... The site is suitable for the proposed development which is considered to have acceptable environmental impacts and no significant amenity impacts on the locality. The proposal is considered to be in the public interest and is supported for approval in the form proffered. 162Also attached to the 2010 SEE was a Remedial Action Plan from JBS Environmental Pty Ltd ("JBS") dated December 2010. The JBS recommendations contained at section 5.2 were as follows: Based on the findings of this investigation and taking into account the findings of the previous investigation (Martens 2010), it is recommended that a Remedial Action Plan (RAP) be prepared and implemented which includes the following elements: Removal of Isolated Quantities of Asbestos Waste

A systematic surface inspection of the eastern fill are and western fill area should be undertaken by a licensed asbestos removalist and any visible fragments of ACM collected and removed from the site to a facility lawfully able to accept Special Waste (Asbestos Waste) in accordance with regulatory requirements.
It is noted that, during the previous investigations (Martens 2010), ACM fragments were reported at the surface of the fill materials at sample location TP8. It is unclear from the documentation provided in the previous report (Martens 2010) whether the ACM was observed on the surface (0.0 m bgs) or in the upper sampling interval (0 - 0.3 mbgs). Given the uncertainty surrounding the precise depth of the identified ACM as part of the previous investigation at location TP8, as a precaution, a shallow scrape of fill materials at location TP8 should be undertaken and the small quantity of shallow surface fill material at this location also removed from the site as Special Waste (Asbestos Waste).
Following removal of the isolated fragments of ACM on the ground surface of the fill materials in both the eastern fill area and western fill area, together with the shallow surface scrape of fill materials at location TP8 for precautionary reasons, the ground surface should be inspected by a suitably qualified and experienced environmental or occupational hygiene professional and validated as being free of any visible fragments of ACM. Removal of <5% of fill materials not classified as Recovered Aggregate
Removal of the following fill materials present in two separate areas, to a facility lawfully able to accept General Solid Waste:
Western Fill Area - in a cluster of three adjoining sample locations (JSB 18, JSB27 & JSB28), located in the northern portion of the western fill area. It is estimated that approximately 450 tonnes3 of material out of a total estimated quantity of 15647.25 tonnes requires removal
Eastern Fill Area - at a single isolated location (JSB03), located midway down the fire access trail constructed in the eastern fill area. It is estimated that approximately 150 tonnes4 of material out of a total estimated quantity of 15 350 tonnes (BBR 2010) requires removal.
Following the removal of the estimated 600 tonnes of General Solid Waste, validation sampling/analyses and reporting should be undertaken by a suitably qualified and experienced environmental consultant to confirm that the effective removal of the materials from the site. 163Mr Darroch was cross-examined. He conceded that: (a) he was not aware that the proposed construction of roads contained in the 2009 consent was linked to the proposed disposal of waste from the Banksmeadow Waste Facility; (b) in terms of any proposed development application for the future use of the land, he understood, first, that any areas that were determined to have been contaminated and required to be removed from the land would be removed; second, that the Eastern and Western Fill Areas and stockpiles would be removed and rehabilitated; and third, that the fill would be stabilised so that the roads could be completed. The introduction of additional fill material onto the land was required to complete the roads; (c) he had expressed his opinions regarding the environmental acceptability of the proposal based on an assumption that a total of nine fragments of asbestos contaminated material were observed on the ground surface during investigations. This was based on an opinion given by Mr Lau in an earlier report. It was not based on the results of the inspection and testing carried out by the EPA on the land. Mr Darroch was not aware that asbestos had also been found in a storage bay at the Banksmeadow Waste Facility operated by BBR; (d) he expressed the views contained in his report under the heading "Asbestos Containing Materials on Ground Surface", including that the minor quantity of isolated fragments of bonded asbestos contaminated material on the ground surface of the fill materials did not pose any risk to site occupants or the surrounding environment, including neighbouring residents, because a person he regarded as an expert in the field had expressed this view, namely, Mr Lau. He did not independently hold this view based on any assessment of the material available to him; (e) in light of the knowledge that more asbestos had been found on the land he could not necessarily maintain the view that he expressed in his report; (f) his area of expertise was that of planning, that is to say, considering the intended use of the land given its location, the amenity impacts on neighbouring sites and the land's relationship to the surrounding area; (g) with respect to any future reworking of the fill placed in the Eastern and Western Fill Areas, this involved the exposure, digging out, compaction and replacement of the fill, followed by additional fill being brought onto the land in those areas; (h) he did not agree with the proposition that the proposed development would make a very significant change to the land form having regard to the height of the fill batters in the Eastern Fill Area and the placement of fill on top of ridge lines; (i) his report made no reference to the POEOA; (j) he did not consider, in expressing the views in his report, the position of whether an environmental protection licence was required for the placement of the fill material on the land; (k) he only took into account Dr Martens' reports to the extent that he had discussed them with Mr Lau and Mr Lau had had regard to them. That is to say he had not independently reviewed Dr Martens' reports; and (l) he was not aware that the VDM Consulting letter dated 12 October 2010 was in almost the same terms as the 11 October 2010 letter from VDM Consulting which was provided to the EPA in support of an exemption application by BBR, but which was rejected by the EPA. 164Given these limitations affecting, as they did, the credibility of the opinions he expressed, I placed very little weight on Mr Darroch's evidence.

Geotechnical Evidence 165Mr Bruce Walker of Jeffery and Katauskas (on behalf of the Foxman entities) and Dr Martens (on behalf of the council) gave expert geotechnical evidence on the construction of the existing fire trails and the remedial works required if the road and fill design levels were to be retained. They prepared two joint reports dated 10 February and 4 March 2011, respectively. 166In their first joint report, the experts disagreed as to whether the works accorded with the 2009 consent in terms of the location of trails and the scale of the earthworks. While Dr Martens expressed the opinion that the fire trails, creek works, land clearing and substantial stockpiles had not been constructed wholly within the locations approved in the 2009 consent, Mr Walker concluded that one of the trails built was in accordance with the consent. The remaining trails only partially conform to the consent alignment and with respect to at least one of those trails "the extent of fill is greater than might have been understood/expected". 167In relation to whether it would have been possible to construct the proposed fire trails at the locations shown in Figure 2 in the plan attached to the Bushfire Report (forming part of the 2008 DA) as a "proposed track" in order to comply with RFS requirements, Dr Martens stated that based on his site inspection he considered that less than 2m of cut and fill would have been required, whereas Mr Walker stated that earthworks well in excess of 1m of cut and fill and probably up to 5 to 6m height would have been required. Both experts agreed however that for the Eastern Fill Area, from the available survey data, the fire trail could have been constructed in its present location without the extent of the earthworks carried out, and in the Western Fill Area, whereas the extent of cut and fill was considered to be reasonable for the fire trail, the end turning circle could have reduced the extent of the fill by adopting a lower level. For the contour fire trails the extent of the earthworks was considered to be generally reasonable. 168Both experts agreed that the fire trails were not adequately stable because the edge batters were too steep and there had been inadequate compaction and inadequate surface water drainage provision. While Dr Martens stated that it was not possible to complete the works to an acceptable engineering standard and RFS design criteria without fundamentally removing all the fill placed and reworking and replacing it in stabilised compacted layers, Mr Walker was of the opinion that it was not necessary to remove all fill. It was only necessary for the Eastern Fill Area to form properly compacted outer zones to the fill embankments. Moreover, as they currently existed, both experts agreed that the fire trails did not comply with relevant RFS standards. Dr Martens did not consider that the fire trails were trafficable under all weather conditions nor designed to prevent soil erosion and other land degradation, whereas Mr Walker considered that the portions of the fire trails that were surfaced with granular materials were trafficable under all weather conditions but would require maintenance. He agreed with Dr Martens that the fire trails with a clay surface were not trafficable under all weather conditions. 169The experts disagreed as to whether the engineering standards of the council were relevant. Dr Martens considered that they were relevant because they set out standard engineering practices, but Mr Walker was of the opinion that the standards were aimed at normal subdivision roads and not fire trails, which would not be expected to be designed and constructed to the same standard. Assuming, however, that these standards were relevant, the experts agreed that the existing earthworks and fire trails did not comply with them. 170The experts also agreed that the requirements of AS 3798-2007 Guidelines on Earthworks for Commercial and Residential Developments ("AS3798") were relevant insofar as the Guidelines set out the broad requirements for the placement of fill, together with testing and compliance standards. 171The experts agreed that the sediment erosion works were currently inadequate because some areas did not have adequate silt control fences. Dr Martens noted that without immediate urgent rectification there remained the risk that sediment would continue to migrate from the placed fill areas to other areas on the site, including watercourses and various EECs on the land. 172In relation to the remedial works required if the road and fill design levels were to be retained, Dr Martens and Mr Walker agreed that the fill batters needed to be stabilised by excavation and recompaction. A detailed ground survey and further detailed design work were required. Dr Martens was further of the opinion that for the Eastern Fill Area, additional width would be required for drainage and the erection of safety bollards. The consequence of such works would be that the basal width of the fill would need to be considerably increased. 173As for the stockpile areas, both experts agreed that unless approved to remain, they should be removed and the area reinstated. If approval was granted, the fill batters would require removal, suitable compaction and regrading and the provision of adequate drainage measures. 174Between the provision of the first and second joint reports, there had been a "small slope failure" in the Eastern Fill Area fire trail at the edge of the batter. Consequently, the experts were requested to provide an opinion on what remedial works were required. They agreed that further stabilisation works would be required assuming that the cut area adjacent to Evelyns Range Road could be lowered in elevation (an assumption that was "confidently made" by the experts in cross-examination: T261.27) and the remaining existing granular fill along the batter to the east of the north-south fire trail ought to be removed. Mr Walker noted that while he did not observe the edge batter failure whilst inspecting the land on 21 February 2011, he did observe that further settlement and tension crack formation had occurred at the crest of the batter adjacent to the north-south fire trail. 175In relation to the north-south aligned arm of the Eastern Fill Area, both Dr Martens and Mr Walker agreed that remedial works would ultimately depend on the design levels adopted for the completed fire trail. If the current form of the existing fire trail was to remain, then additional compaction over the full width of it would be required. Moreover, if the works were to be completed to a grade fire trail, then the granular fill material would need to be removed and the fire trail constructed in accordance with RFS criteria. The experts noted that if the existing fire trail levels were to remain, this would considerably extend the filling footprint down the hill. 176In relation to the remedial works required for the Western Fill Area, these included the removal of all existing granular fill material to reinstate natural slopes in the upper bench/stockpile area; the removal of edge batter material to enable a compacted shoulder at the lower turning head area to be constructed; and the removal of all existing granular fill to reinstate the natural slopes at the lower bench area. These remedial works were based on an assumption that bench areas were not to remain on completion, but if they were, then in addition to the works described above, any additional fill had to be adequately compacted, together with the implementation of appropriate surface water drainage provisions and revegetation. In relation to any placed fill, final surface grades had to be formed to promote runoff and prevent ponding; drains needed to be built to adequately direct surface water down completed batter faces; and discharges from any drains should include sediment traps. Batter faces were to be revegetated in accordance with a vegetation management plan. 177Mr Walker and Dr Martens gave concurrent evidence amplifying material contained in their first and second joint reports. The evidence was highly technical in nature. In particular, the experts disclosed that compaction testing had been undertaken by them at ten locations in the Eastern Fill Area and that while the surface layer was more compacted than the underlying material, generally it was "poorly to moderately compacted ... not a well compacted fill" (T264.38). The results disclosed that 13 out of 20 tests failed the 95% standard compaction test if the requirements of AS3798 were applied. 178In cross-examination Mr Walker stated that if the fill material was to remain in the Eastern Fill Area, his original opinion was that remedial works would be required to construct a well compacted shoulder in layers from a benched surface. This would involve stripping away the topsoil, benching into the surface and bringing up granular fill and compacting it in layers. Considerable disturbance of the granular material would be required insofar as it was being excavated and reused. He estimated that approximately 33,900 tonnes, give or take 20%, of additional fill material would be required and approximately 50% of the original fill material would be removed. The removed material, however, could be reused on site. 179Mr Walker was also of the opinion that in order to create a suitable truck turning area and platform off the entrance to Evelyns Range Road, fill would be required, but there was excess fill presently on the land that could serve this purpose. Moreover, material could be used from and on other parts of the land, for example, to complete the construction of the remainder of the fire trails as approved by the council in the 2009 consent. 180Finally, it is important to note that, as he conceded, the evidence of Mr Walker given in the two joint reports and orally during the hearing, was inconsistent with, and he therefore resiled from, the opinions that he had earlier expressed in the Jeffery and Katauskas Report attached to the 2010 SEE forming part of the 2010 development application, including the opinion stated in section 4.4.22.

Ecological Evidence 181A joint expert report on ecology and the river systems on the land was prepared by the parties by Mr Andrew Macleod and Ms Elizabeth Ashby for the Foxman entities and Dr Daniel Martens and Ms Alex Stengl for the council. 182It is not necessary to repeat all of the opinions recorded in the report, which has, however, been considered in full. Importantly, the report concluded the following: (a) that the extent and location of the works undertaken on the land did not match the plans attached to the 2009 consent; (b) that the relocated western contour fire trail was in a preferred location, notwithstanding the unapproved removal of vegetation and the fact that the trail was longer than that approved; (c) that the works had resulted in the clearing, albeit to a minimal extent, of the following EECs: Western Sydney Dry Rainforest and Cumberland Plain Woodland. It was agreed that applying the seven part test (under s 5A of the EPAA) to the Cumberland Plain Woodland, there was unlikely to be a significant adverse impact arising from the works undertaken on the land. Ms Stengl nevertheless believed that the impact of the works had been significant. With respect to the Western Sydney Dry Rainforest there was disagreement amongst the experts as to the impact of the works on that EEC. While they accepted that the works were deleterious to the Rainforest because of the impact of the works on, in particular, one of the watercourses affected by the works, it was Ms Stengl's view that the works had significantly compromised this vegetation community; (d) all of the experts agreed that a suitably qualified expert should prepare a sediment and erosion control plan with respect to the works; (e) they agreed that, to compensate for permanent loss of EECs, offsets and management of the remainder through a property vegetation plan should be implemented; there should be a management plan with respect to the control of weeds; and where temporary loses of EECs had occurred, these portions of the land should be rehabilitated; (f) the two watercourses located on the land at WC1 and WC2 "generally" constituted rivers as defined under the WMA; (g) in relation to remedial action required to mitigate the impact of the construction of the dam at the northern boundary of the land, a suitably qualified expert should be retained to prepare a creek rehabilitation and revegetation management plan which should include the following steps: removal of earthworks; reinstatement of the former channel; placement of appropriate topsoil over exposed banks and the immediate stabilisation of those banks and the revegetation of all disturbed areas within the channel and banks; (h) because the works described in the previous paragraph would be a "controlled activity" under the WMA, it would be necessary to obtain consent from the NSW Office of Water ("NOW"); and (i) in relation to the remediation of the watercourse affected by the works, although there was some disagreement in relation to the original form of the watercourse, the experts agreed that there had been an impact on the system and that remediation should be undertaken. In particular, a Creek Rehabilitation Management Plan ought to be prepared by a suitably qualified expert incorporating: the re-establishment of a defined channel bed and banks; the cessation of additional fill being imported to the watercourse; no vehicular or stock access to the watercourse upon completion of rehabilitation works; ongoing weed control works; and the stabilisation of all disturbed areas to prevent erosion. Similar to the proposed rehabilitation with respect to the watercourse affected by the construction of the dam, the Creek Rehabilitation Management Plan would require consent from NOW because it would be a "controlled activity" under the WMA. 183Ultimately, it was common ground that the impacts of the works on WC2 included that: (a) the original character and form of WC2 has been largely obliterated, with a consequential loss of large parts of the natural function of the creek. For example, the current channel form no longer contains significant pools, rifles, bedrock outcrop, woody debris or floodplain materials; (b) substantial vegetation has been removed including removal of aquatic vegetation, riparian vegetation and remnant dry rainforest communities; (c) modification of the flow characteristics, including localised high flow velocities with high risk of significant in channel erosion and sediment loss of downstream areas; and (d) with the obliteration of channel form and removal of riparian vegetation, there has been a considerable loss of stream habitat areas for a length of 600 to 650m, leading to changes in micro-climate within the valley floor (for example, increased sunlight, increased evaporation and reduced base-flow) with likely affectations to valley floor ecosystems in the future. 184In addition, the clearing and slashing work, together with the placement of fill material, involved the loss of native vegetation including some areas of EECs. 185Ms Ashby and Ms Stengl conferred and considered appropriate remediation orders conforming to the opinions expressed by the ecological experts, which the parties ultimately agreed were appropriate.

Which Foxman Entity is Liable 186In their closing submissions the Foxman entities raised the question of who was the appropriate entity liable for the various breaches of statutes alleged by the council. As the council submitted, the issue, raised as it was for the first time on the penultimate day of the hearing, took it by surprise. But the arguments ventilated by the Foxman entities raise matters of importance, especially with respect to the question of relief, demanding determination by the Court. 187In the amended points of claim the council alleges that: (a) Foxman and Mr Foxman have breached s 76A of the EPAA; (b) all of the Foxman entities have breached s 143 of the POEOA; (c) Foxman and Mr Foxman have breached s 144 of the POEOA; (d) all of the Foxman entities have polluted land and waters in contravention of s 142A and s 120 of the POEOA respectively; and (e) Foxman and Mr Foxman have breached s 91E of the WMA. 188Declaratory, injunctive and remedial relief is sought against each of the Foxman entities in the amended summons in conformity with the pleaded contraventions. 189While it is convenient to deal with the liability of each of the Foxman entities for the specific breaches alleged to have been committed by them in the discussion of those breaches below, it should be recalled that the Court has no power to make orders against persons not actually, or potentially, in breach of the EPAA (Wilkie v Blacktown City Council [2002] NSWCA 284; (2002) 121 LGERA 444 at [60]; Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472 at [47]; Gosford City Council v Verde Terra Pty Ltd (No 2) [2013] NSWLEC 62 at [31] and Dobrohotoff v Bennic [2013] NSWLEC 61 at [90]). A not dissimilar result had been reached in respect of the Environmental Offences and Penalties Act 1989 (one of the suite of statutes repealed upon the enactment of the POEOA) (Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 at [98]-[102]). Although the remedies available under the EPAA, the POEOA and the WMA will turn on the specific wording of each Act, the broad general principle articulated in these decisions is nevertheless applicable. 190On 9 July 2010 the council's lawyers wrote to the lawyers for the Foxman entities, enclosing letters to Foxman, BBR, Mr Foxman, Foxman Holdings and Foxy's. The letters, which were not identical, essentially sought particulars of the transport and placement of the fill material and of the works on the land. A single letter in reply was sent by the lawyers for the Foxman entities on 13 August 2010. The responses and hence admissions contained in that letter may be summarised as follows: (a) that Mr Foxman is the sole director of each of the Foxman entities; (b) that Mr Foxman is also the sole director of the corporation whose trucks transported the waste from the Banksmeadow Waste Facility to the land (Foxy's) and of the corporation which owns the Banksmeadow Waste Facility (Foxman Holdings); (c) that Mr Foxman had the day to day management of each of the corporations above; (d) that Mr Foxman directed the material to be deposited upon the land; (e) that Mr Foxman supervised the depositing of the fill material upon the land; (f) that Mr Foxman directed the truck drivers to deliver and deposit the fill material upon the land; (g) that Mr Foxman supervised the truck drivers who delivered and deposited the fill material upon the land; (h) that BBR owned the earthmoving equipment that moved the fill material about the land and employed the driver of the earthmoving equipment who moved the material about the land; (i) that Mr Foxman directed the earthmoving equipment drivers to move the fill material upon the land; (j) that Mr Foxman employed the persons who carried out the works in respect of constructing the roads and access tracks on the land in the relevant period between September 2009 and May 2010; (k) that Mr Foxman directed Foxman to carry out the works in respect of building the roads and access tracks on the land between September 2009 and May 2010; and (l) that Mr Foxman supervised the carrying out of the works in respect of building the roads and access tracks on the land between September 2009 and May 2010.

Breach of the POEOA 191In order to determine if there was a breach of ss 143 and 144 of the POEOA, it must be determined if the fill material transported from BBR to the land was "waste" and whether the land was being used as a "waste facility".

The Fill Material is "Waste" 192As stated above, the parties agreed that the fill material sourced from the Banksmeadow Waste Facility had been, prior to its processing, received as waste at the Facility. After having been received at that Facility, the material was processed on site. At the conclusion of the evidence, it was further conceded that insofar as asbestos contaminated material was received at the Banksmeadow Waste Facility, processed, and then taken to the land, (emphasis added) "some of the material deposited on the land" did not meet the requirements for the application of any of the 2008 or 2010 exemptions, this material was "waste" as defined in the Dictionary to the POEOA. 193Highly contentious was whether the remaining material deposited on the land constituted "waste" for the purposes of the POEOA and whether the land was used as a "waste facility" as defined under that Act, and therefore, contravened ss 143 and 144 of the Act because, in particular, the remaining material did not meet the requirements of either the 2008 or 2010 exemptions. 194Applying each of paragraphs (a) to (d) of the definition of "waste" in the POEOA to the evidence, all of the processed waste transported from the Banksmeadow Waste Facility and deposited on the land constituted, in my view, "waste" for the purposes of that Act. This finding is made both in respect of the asbestos contaminated waste and the non-asbestos contaminated waste. 195First, the fill material comprised substances that were deposited in the environment in such volume, constituency and manner as to cause an alteration to the environment. The sheer volume of the fill, its placement in stockpiles, the dam and fire trails, and its contamination with asbestos, lead and other foreign materials, caused an alteration to the environment (paragraph (a)). This finding alone is sufficient to characterise the material as "waste" for the purpose of the POEOA. 196Second, the fill material comprised, at the very least, surplus or discarded substances that BBR did not want (there was no evidence that it was sold to Foxman or Mr Foxman, for example, as part of BBR's business). 197This finding is consistent with the reasoning by Pearlman J in Environment Protection Authority v HTT Huntley Heritage Pty Ltd [2003] NSWLEC 76; (2003) 125 LGERA 332. That case concerned the rehabilitation of an old colliery. Building rubble was brought onto the site in stockpiles from the Collex waste facility. Waste was received at the Collex facility, sorted, processed and transported by Collex to the old colliery. It was determined that the material was waste at the time it was received at the Collex waste facility because neither the owner of the original material at the source site nor the transporter of the material to the waste facility wanted it for any purpose or demonstrated need. Her Honour went on to hold that the material did not lose its character as "waste" at the site merely because it was intended to re-process the material and use it for the purpose of rehabilitation. The ultimate intended use of the material did not, when regard was had to its statutory definition in the POEOA in existence at that time (prior to 1 May 2006 when the Act was amended), alter its character as "waste" (at [20]). 198In Environment Protection Authority v Shannongrove Pty Ltd [2010] NSWLEC 162; (2010) 176 LGERA 31, Craig J was required to determine whether a liquid by-product of a process carried out at a waste facility retained its character as "waste" when transported by tanker from the facility and applied to agricultural land for beneficial purposes. His Honour made the following apposite observations (at [90]-[91]): 90 On the evidence, there can be no doubt that the liquid transported by the defendant was an unwanted, surplus by-product of the waste treatment process carried out at the UR-3R Facility. So much appears to be conceded by the defendant and, in any event, is apparent from the evidence of Mr Bonanno. He described the UR-3R process as generating "various liquid wastes" which he then described. Those liquid wastes, so described were "digester liquid", "excess process water", "denitrification reactor waste", "percolate" and "fire water". 91 The words "unwanted" and "surplus" are not defined. They are words of ordinary English usage. They are used as words within the statutory definitions of "waste" which are, in turn, inclusive definitions. This allows the words to be understood in their ordinary meaning so long as the included words are taken into account when applying that ordinary meaning. Relevantly, the terms "unwanted" and "surplus" should be understood in a way which is harmonious with the ordinary concept of waste. This, in turn, brings focus upon the categorisation of the material at its source when determining whether it has some general utility or value, in the sense of making it wanted, rather than embarking upon an inquiry as to whether the transporter wanted the material. Such an approach to the interpretation of "waste" is supported by the qualifying sentence contained in each of the definitions, stating that a substance is not precluded from being waste "merely because it may be reprocessed, re-used or recycled". 199Justice Craig came to a different conclusion, however, in Environment Protection Authority v Terrace Earthmoving Pty Ltd [2012] NSWLEC 216. In that case the defendant was engaged to construct an internal road for the owners of land. The construction involved the use of fill obtained from sites at which the defendant was carrying out demolition and excavation works. The material was taken from those sites and transported to the land for the purpose of building the road. The defendant was charged with two counts of transporting waste to a place that could not lawfully be used as a waste facility for that waste under s 143 of the POEOA. His Honour drew a distinction between the act of transporting waste and the act of depositing material, a distinction, the significance of which, determined at what point in time the material to be transported was categorised as "waste". His Honour held that the defendant did transport a substance to the land, namely, the demolition material. The remaining question therefore was whether what was transported was "waste" within the meaning of the POEOA. 200To the first count Craig J applied the definition of "waste" in s 143(4) in existence at the time of the charge period ("waste includes any unwanted or surplus substance"). He noted that it was narrower than the definition of that term currently contained in the Dictionary to the POEOA (at [174]). His Honour construed the term as follows (at [181]-[184] and [210]): 181 Nothing contained in the definition found in s 143(4) suggests the identity of the person or entity whose opinion determines that particular material is "unwanted" or "surplus". This fact, coupled with the ordinary meaning of "waste", to the extent to which it uses expressions different from those included in the statutory definition, point to the need for an element of objectivity when determining that material is waste. 182 While the desire of a person wishing to put land to a particular purpose will not determine the material removed from the site is "waste" simply because it is material unwanted by or surplus to the requirements of that person, so also the desire of the transporter to have that substance removed, will not be determinative that the substance is wanted and therefore cannot be "waste". The contaminated by-product of an industrial process that the industrial operator must have removed from its premises, does not cease to be "waste" simply because it has value to a carrier because that carrier is paid to remove it to another place lawfully able to receive it. Particularly will this be the case if there is no recognised demand or quality inherent in the material, as removed. 183 The consequence of considering these matters causes me to conclude that there is no formula or formulaic expression to be applied to all cases in which the determination of material as "waste" is to be made. 184 Without intending to be exhaustive, the factors relevant for consideration are: (i) the nature of the substance; (ii) whether there is an identified demand for that substance; (iii) circumstances in which the substance is obtained and removed from its source; (iv) whether the substance is being transported to a place at which it is intended to be used for the purpose for which demand for the substance has been shown; and (v) the period of time that elapses or is expected to elapse after the substance is transported to the place of its intended use before it is put to that use. A consideration of factors of this kind, in the context of the inclusive definition of "waste", seems to me to accord with a commonsense approach to the interpretation of "waste" in s 143 (Owen v Willtara Construction Pty Ltd (1998) 103 LGERA 137 at [86]-[90]). ... 210 The "commonsense" approach to the application of the definition of "waste" which I have identified, seems to me to be consistent with a purposive approach to the interpretation of the legislation as a whole. One of the expressed objects of the POEO Act, as expressed in s 3, is "to assist in the achievements of the objectives of the Waste Avoidance and Resource Recovery Act 2001". An object of the latter legislation, as expressed in s 3 of that Act, is to ensure that resource management options are considered in the context of "resource recovery (including reuse, reprocessing, recycling and energy recovery)". These legislative provisions support the need to focus upon a number of factors of the kind earlier identified when determining whether material is "waste" rather than making the assessment wholly upon the position of the party or entity initially determining the material surplus to its requirements and therefore unwanted by it. 201Critically for present purposes, Huntley was distinguished in the following way (at [221]): 221 The circumstances considered in Huntley are significantly different from those that pertain in the present case. Unlike Huntley, the materials transported by Terrace have not been through a process of deposit at a waste facility. These materials have been identified by nature and separation from other materials as being needed for road construction, with the intention that they should be so used immediately upon delivery to the road construction site. No stockpiling awaiting some future intention for re-use was involved. So much is apparent from the evidence of the prosecutor's investigating officers. As earlier recorded, Ms Playford recognised that the only material on Lot 132 that could be said to resemble a stockpile was that at the northern end of the road awaiting deposit into the hole that had been dug for the purpose of further construction. The use of that material in the excavated hole did not occur simply because Council officers had requested that work cease. The absence of stockpiles on the subject site were in contrast to the position that pertained on the adjoining site to the east. 202Applying the objective criteria he had articulated, Craig J held that the substance transported was not "waste" for the purpose of s 143 (as it existed prior to 1 May 2006) (at [211] and [223]). 203In relation to the second charge period, Craig J applied the definition of "waste" as presently found in the Dictionary to the POEOA. He noted the following (at [228]-[229]): 228 The provisions of paragraph (b) of the definition are, in substance, to the same effect as was the definition of "waste" in s 143(4) prior to its deletion by the amending legislation that took effect from 1 May 2006. The determination that I have earlier made in relation to the definition and, in particular, the expressions "unwanted" and "surplus" remain apposite to the present paragraph (b). 229 Further, I do not consider that the additional descriptor of a substance as one that has been "discarded", "rejected" or "abandoned" detract from the argument. In the ordinary use of language, it could not be said that the material which I have determined were transported by Terrace were, at any point in time, either "rejected" or "abandoned". As to whether those materials were "discarded", they were in a sense "cast aside" by the owner of the land on which they were initially located but this acknowledgement does no more than enliven the enquiry earlier addressed. That is, whether in the context of any inclusive definition of "waste", the motive of the proprietor seeking to cast aside the material is the sole factor in determining that the material is waste. For the same reasons earlier articulated, the entire factual matrix requires consideration in order to address the definition and in so doing no different conclusion is reached by me from that earlier expressed when determining that the material was not waste. 204Thus the result was the same in respect of the second count, namely, that the defendant had not transported "waste", as defined, for the purpose of s 143 of the POEOA. 205In my opinion, the facts of this case may be distinguished from those of Terrace in the same way that Craig J differentiated the decision in Huntley. Unlike Terrace, the material transported to the land had been deposited at the Bankstown Waste Facility prior to being transported to the land. There was no evidence that the material had been identified by nature or was separated from other material as needed for road construction. On the contrary, the material was taken from a storage shed at BBR's waste facility, where it had been accepted as waste, transported to the land, and placed in various stockpiles prior to it being re-used on the land. No attempt was made to ascertain the nature of the substance at the BBR site, for example, whether it contained any contaminants such as asbestos, lead or other foreign materials, other than to identify it as demolition and construction material. In my view, the material was, therefore, "waste" pursuant to paragraph (b) of the definition. 206Furthermore, I am inclined to draw the inference urged upon me by the council that BBR wanted to divest itself of the material and that the 2009 consent provided the mechanism by which to effect this purpose. Put another way, the proper characterisation of the transportation of the material from the Banksmeadow Waste Facility to the land was not because it was required by the Foxman entities for development pursuant to the 2009 consent, but it was to facilitate the disposal of the waste from the BBR site and the land provided a suitable vehicle for doing so. This inference is, in my view, rationally and reasonably available on the evidence set out above detailing the background to the dispute and in light of, in particular, the surveying and geotechnical evidence. For example: (a) the extensive volume of the fill as evidence by the survey evidence (15,700 m³ or 25,000 tonnes, which was in excess of that permitted to be kept at the Banksmeadow Waste Facility) was demonstrably in excess of that required to build a dwelling house and "fire trail", which, as the DA stated, was a development that envisaged only "minimal cut and fill". As the geotechnical experts agreed, the roads and tracks constructed were not constructed to standard, even considering that they were designed to be fire trails; were not properly compacted; were not trafficable in all weather; and were not stable. Both Mr Walker and Dr Martens agreed that in the Western and Eastern Fill Areas, based on the survey evidence, the fire trails could have been constructed without the extensive earthworks that were carried out; (b) in the same month that the EPL was issued prescribing limits on the volume of allowable material at the BBR waste site (10,000 m³ or 20,000 tonnes), BBR, through its General Manager, sought advice from the council as to whether it could build a golf course on the land and was told that consent would be needed and foreshadowed difficulties given the presence of two watercourses on the land. This prompted BBR, not Foxman (the entity that lodged the DA), to engage TCG Planning to provide advice; (c) the staged development that was envisaged was described, in relation to stage 1, as "a land fill site" that would need significant filling and contouring. TCG Planning, in its fee proposal, informed BBR that a development application would be required for landfill and for the golf course and could constitute designated development. BBR advised TCG Planning that the fill material would meet various waste exemptions; (d) it was reasonable to infer that by 2 September 2008 BBR was aware that the proposed fill material did not comply with the 2008 waste exemptions, especially with respect to lead and foreign material levels, because BBR had applied to DECC for a new exemption to apply to material processed from waste ("select fill"), permitting more tolerant threshold specifications of certain contaminants (lead and foreign material, in particular) than those applicable under the existing 2008 exemptions. The source of this waste, I infer, was the Banksmeadow Waste Facility. The reason for the need for a new exemption was, it can also be inferred, the high levels of lead and other foreign materials in the waste stored at the BBR site that would not satisfy the 2008 exemptions. For example, the draft set of chemical and other material criteria sent from BBR to the EPA on 2 September 2008 showed higher than permissible concentrations of lead; (e) correspondence between BBR and TCG Planning in November 2008 strongly suggests that the purpose of the construction of the dwelling house was subordinate to the development of internal roads and tracks consistent with a method of disposing of waste, but that this would be impeded by the fact that EECs were found on the land. For example, the 27 November 2008 phone call log stated (emphasis added), "advised Ryan the need for road as part of DA - ie linked to waste disposal"; (f) BBR persisted in seeking an exemption for "select fill". Mr Foxman lobbied the EPA on 1 May 2009 stating that "an approval of this proposal...will maximise the re-use of material in legitimate construction and/or landscaping projects. A refusal of the application would then necessitate the disposal of this material by landfill, an undesirable outcome" (emphasis added). This is precisely what occurred; (g) while seeking to obtain an exemption for "select fill" from DECC, the Foxman entities commenced work on the land purportedly pursuant to the 2009 consent. Thus Mr Foxman told Mr McEwan in a conversation on 16 September 2009 that "the material we have brought onto the property has been tested prior to it leaving my recyclers at Botany". This was a reference to the BBR site; (h) the Foxman entities continued to deposit fill on and about the land notwithstanding the issuing of two NISOs, a clean-up notice and a varied clean-up notice (putting the Foxman entities, through Mr Foxman, on notice that the fill contained asbestos), and a stop work order, all demanding the cessation of the works and ultimately the removal of the fill material by reason of its contamination; (i) the Foxman entities, through Mr Foxman, knew that that the 2009 consent did not permit the works undertaken on the land, including the depositing of the fill material. He was put on notice of this fact in 2008 by TCG Planning. He was advised of the fact by Mr McEwan on 16 September 2009 and again on 6 October 2009. And it was, in effect, admitted by him in his conversations with Mr McEwan on 6 October 2009, 3 May 2010 and later at the council meeting on 26 May 2010; and (j) Mr Foxman told Mr McEwan on 16 September 2009 that the material brought onto the land had been tested prior to leaving the Banksmeadow Waste Facility. This carried with it an implicit representation that the fill material was not contaminated. He again repeated this representation on 3 May 2010 when he expressly told Mr McEwan that there was no asbestos in the fill material. This was said in circumstances where ALS had notified BBR that there was asbestos present in the material on 2 November 2009. Both representations were, it may be inferred, knowingly false. 207I have drawn the inference above having regard to the principles in Briginshaw v Briginshaw ([1938] HCA 34; (1938) 60 CLR 336) as explained in subsequent cases (for example, Palmer v Dolman [2005] NSWCA 361 at [35]-[37] and Asim v Penrose [2010] NSWCA 366 at [140]-[143]). I am aware of the serious implications regarding the Foxman entities' conduct in making this finding. 208Accordingly, I additionally find, for the reasons given immediately above, that the material deposited on the land was a substance that was "discarded, rejected, unwanted or surplus", for the purpose of paragraph (b) of the definition of "waste". That the material was to be re-used on the land does not matter (see paragraph (e) of the definition). 209Third, I find that the material is a substance satisfying paragraph (d) of the definition of "waste" in the Dictionary of the POEOA. For the reasons given above, it can be concluded that the fill material imported onto the land from the Banksmeadow Waste Facility was a re-used substance produced wholly or partly from waste that was applied to land. This finding is consistent with the definition of "waste" for the purpose of paragraph (b) of the definition contained in cl 3B of the POEO Waste Regulations and similarly cl 39(1) of Sch 1 of the POEOA. 210I therefore find that the material was "waste" for the purpose of the POEOA. 211To the extent that it is necessary to do so, I also find, having regard to the evidence of Dr Martens, Mr Lau, Mr Wilson, Ms Hanna, Dr Prifti and Mr Godbee, that the fill material constitutes "asbestos waste" applying the criteria contained in the DECCW Waste Classification Guidelines, and moreover, is "special waste" for the purpose of those Guidelines. The relevance of this finding is that, according to those Guidelines, asbestos waste can only be disposed of at a waste facility that can lawfully receive this waste (see cl 42 of the POEO Waste Regulations). And as those Guidelines state, "the potential impacts of special waste need to managed to minimise the risk of harm to the environment and human health."

The Waste Exemptions Do Not Apply 212The Foxman entities submitted that, notwithstanding that the material was "waste" under the POEOA, it was exempt from the licensing requirements (see s 48 and cl 39 of Sch 1 of the Act) and waste levy provisions of the POEOA (the material nevertheless remains "waste" under the Act) pursuant to The recovered aggregate exemption 2010. During the hearing it was conceded that the 2008 exemptions could not apply due to the elevated levels of asbestos, lead and other foreign material contaminants contained in the fill material. 213The Foxman entities relied upon the evidence of Mr Lau that between 90% to 95% of the material satisfied the stipulated chemical criteria in the 2010 exemption. 214Dr Martens' evidence, by contrast, was that none of the material did. 215From the outset there were two difficulties with the reliance placed by the Foxman entities on the 2010 exemption. First, as Mr Lau conceded in cross-examination and is stated, for example, in the DECCW Guidelines on Resource Recovery Exemptions (Land Application of Waste Materials as Fill), the exemptions cannot be applied retrospectively. The appropriate question therefore is whether the material complied with the 2008 exemption in force at the relevant time, which, as the evidence makes tolerably clear (see, for example, the evidence of Mr Wilson, Dr Martens, Dr Prifti, Mr Godbee, Ms Hanna, Mr Lau and the 11 October 2010 VDM Consulting letter), it did not. Second, as the council argued, the application of the 2010 exemption does not merely depend on satisfying the requirements of condition 10. The Foxman entities have also not demonstrated compliance with conditions 7 or 8 of that exemption, especially condition 7.2.7(a), namely, that the relevant waste was applied to land to the "minimum extent necessary for the construction of a road". As Mr Lau admitted, he had not seen any documents in compliance with condition 8.1 of the exemption. 216In any event, the waste material did not satisfy condition 10 of the 2010 exemption because of: first, the presence of asbestos; second the elevated concentrations of lead; and third, the excessive amount of foreign material at item 12 in Table 2 in condition 10 (see the evidence of Dr Martens, Dr Prifti, Mr Godbee and Ms Hanna). 217In relation to the presence of asbestos, the evidence demonstrated that asbestos was found in multiple locations on the land. It was Dr Martens' strong and compelling view that it was highly likely that asbestos was present throughout the fill material and that no further testing was required to verify this conclusion given the nature of the fill, its source (from material at BBR that had tested positive to asbestos), and the sampling and visual inspections undertaken. According to Dr Martens, the fill material was properly classifiable as "special waste - asbestos waste". 218Mr Lau disagreed because no asbestos had been identified at depth throughout the fill profile, some samples had tested negative to asbestos, and the sampling to date, which he felt was adequate, demonstrated that asbestos was not present throughout the fill material. According to Mr Lau, only isolated fragments were present in the fill. 219While both witnesses were impressive, on balance I prefer the evidence of Dr Martens and agree with the expert opinions he expressed, especially concerning the widespread presence of asbestos throughout the fill material and the consequent risks it presents to human safety and the environment. This is principally because Mr Lau: accepted that fragments of asbestos were difficult to find in any fill including the fill on the land; accepted that the composite samples taken by him were only lateral and not vertical; had not followed the procedures contained in the EPA's Contaminated Sites Sampling Design Guidelines in testing the fill material; was unaware of the testing undertaken by Dr Martens demonstrating asbestos was more prevalent than he had estimated; was not aware of the November 2009 ALS positive asbestos results; and was unaware that the remaining fill material at the Banksmeadow Waste Facility had tested positive for asbestos. 220Implicit in this finding is a rejection of Mr Lau's methodology for calculating the average concentration of permissible contaminants under the exemption, namely, the identification and removal of fill that was highly concentrated ("hot spots") in order meet the average threshold criteria contained in the exemption. Not only is this, as Dr Martens indicated, impractical insofar as it would require continual further recalculation and retesting as "hot spots" were removed from the fill, it would result in the fill on the land being "riddled" with holes necessitating extensive remediation. It is for these reasons that Dr Martens had tested and rejected a similar approach during joint conferencing prior to the preparation of the first joint expert report. 221With respect to the elevated lead levels, a similar result follows. The testing by Mr Lau and Dr Martens revealed that the average lead concentration was 82.5mg/kg as against 50mg/kg specified in the 2008 exemption and 75mg/kg specified in the 2010 exemption. The median concentration of 88mg/kg dispels any argument that the average has been, as was suggested by Mr Lau, distorted by "hot spots". Rather, in my view, it establishes non-compliance for the purposes of the exemptions across the sample data, and by inference, across the fill material on the land. 222To the extent that the Foxman entities sought to rely upon Mr Darroch's report and the JBS Remedial Action Plan attached to the 2010 SEE (especially the conclusions stated at 5.2 concerning the removal of "isolated quantities of asbestos waste" and the "5% of fill materials not classified as Recovered Aggregate"), little, if any, comfort can be drawn from this material. Mr Darroch conceded in cross-examination that: his opinion was based on an assumption that only nine fragments of asbestos had been found in total on the land; he was not aware of further testing identifying further asbestos contamination; he was not aware that asbestos had also been found at the BBR storage bay; he had based his conclusion on Mr Lau's reports, that is to say, it was not based on any independent analysis of the fill material by him; and he was not aware that the 12 October 2010 VDM Consulting letter was in almost the same terms to the 11 October 2010 VDM Consulting letter that had not been accepted by the EPA as sufficient to warrant granting the exemption applied for by BBR for "select fill". As stated above, I placed very little weight on Mr Darroch's evidence. 223I therefore find that none of the relevant waste exemptions apply to the fill material placed on the land.

The Land Was Used as a "Waste Facility" 224Under the POEOA a "waste facility" is relevantly defined to mean "any premises used for the storage, treatment, processing, sorting, or disposal of waste". In making the allegation the council is not required to demonstrate that the use of the land is for the purpose of a waste facility, only that in the circumstances there is such a use. The issue of use is "a question of the nature and extent based on the circumstances of each case" (Blacktown City Council v Pace [2002] NSWLEC 142; (2002) 121 LGERA 432 at [20] and Environment Protection Authority v Hardt [2006] NSWLEC 438; (2006) 148 LGERA 61 at [107]). 225In the present case, the extent of the waste on the land, its contaminated nature, the use to which it has been put (that is to say, in a manner inconsistent with and in contravention of the terms of the 2009 consent), and the manner of its placement, namely, as I have found above, to use the land for the purpose of the disposal of processed waste from the Banksmeadow Waste Facility, are all indicative of the use of the land as a "waste facility", as defined.

Breach of s 143 of the POEOA 226It was the council's assertion that by transporting the fill material to the land each of the Foxman entities had breached s 143 of the POEOA. There are four elements to this offence. First, that a person, or the owner of waste, transports, or causes or permits the transportation of waste. Second, that the substance transported is "waste". Third, that the waste is transported to a place that cannot be lawfully used as a "waste facility". Fourth, that the place is used as a "waste facility" for that waste. 227Having determined above that the fill material taken to the land from the Banksmeadow Waste Facility was "waste" for the purpose of the Act and that the land was being used as a "waste facility", only the first and third elements of the offence fall to be determined.

Which Foxman Entity Transports Waste to the Land 228There is no evidence before the Court, leaving aside Mr Foxman, that either Foxman or BBR actually transported the fill material to the land. Rather the evidence discloses that Foxy's was the entity that, on Mr Foxman's instruction, transported the waste fill material to the land. 229To the extent that there was a suggestion that either BBR or Foxman were involved in the deposition of the waste on the land, this is also insufficient to engage the provision. Section 143 is directed towards the transportation of waste to a place. So much so is manifested by the plain unambiguous language of the provision. It is not, despite the title to the section ("unlawful transporting or depositing of waste") directed to the act of depositing the waste on to the land (in coming to this view I have considered s 35 of the Interpretation Act 1987). For this purpose, other provisions of the POEOA are available, for example, ss 142A, 144 and even s 145). 230In any event, even if the offence encompassed the act of depositing the waste onto the land, on the material before me, I do not accept that BBR or Foxman were responsible for depositing the fill material on the land. 231Is there, however, sufficient evidence that either BBR or Foxman caused or permitted the waste to be so transported? This will depend on whether, applying principles of corporate attribution, BBR and Foxman have contravened s 143 of the POEOA by reason of the acts of Mr Foxman, the sole director of BBR, Foxman and Foxy's. 232In a detailed analysis in Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232; (2009) 172 LGERA 225, Biscoe J set out the legal principles that are applicable in determining whether the conduct of a director of a corporate defendant, by instructing a third party, in this case Foxy's, can be regarded as the conduct of the defendant itself (at [78]-[95], cited in Department of Environment and Climate Change v Olmwood Pty Ltd [2010] NSWLEC 15; (2010) 173 LGERA 366 at [343]-[345] and quoted in Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 2) [2010] NSWLEC 73 at [268]). Specifically, his Honour stated (at [79], [82]-[83]): 79 A company can only act through living persons. In determining whether criminal liability should be attributed to a company for the conduct of a person, a distinction has been drawn between, on the one hand, a person who is the embodiment of the company because, often, he is its relevant "directing mind and will" and, on the other hand, an agent or servant for whom the company is vicariously liable. The former represents an organic theory of liability, the latter an agency theory of liability. The distinction is particularly significant for offences in which mens rea is an element where prima facie (absent a contrary legislative intention) a principal is not vicariously responsible for the acts of agents: The King v Australasian Films Ltd [1921] HCA 11, 29 CLR 195 at 214-215. That inhibition is absent in strict liability offences because mens rea is not an element: Presidential Security Services Pty Ltd v Brilley [2008] NSWCA 204, 73 NSWLR 241 at [150]. ... 82 Although the formula "directing mind and will" is often the most appropriate description of the person designated by the relevant rule attributing personal conduct to a company, that is not so in all cases. The real question is, on the proper construction of the statute, whose act is intended to count as the act of the company? see Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500 at 511 per Lord Hoffman delivering the judgment of the Privy Council. 83 The act of a high-level employee or director may count as the act of the company because they represent the company's directing mind and will. But even the act of a low-level employee may count if that is required by the terms of the offence and the achievement of the policy objectives of the statute: ABC Developmental Learning Centres Pty Ltd v Wallace [2006] VSC 171, 161 A Crim R 250 at [10] - [14]; affirmed on appeal [2007] VSCA 138, 172 A Crim R 269. Conduct of low-level employees, who did not represent the company's directing mind and will, has repeatedly been held to be sufficient in cases concerning regulatory offences where legislation regulated a sphere of social or economic activity in the public interest (see the cases reviewed in the ABC Developmental Learning Centres case at first instance at [10]-[14]). They are analogous with the present case. 233Applying these principles (mindful that they have been stated in the context of criminal, and not civil, prosecutions), as a general proposition it may be accepted that the conduct of Mr Foxman, as the sole director of BBR and Foxman, can be attributed to those corporate entities. At issue therefore is whether BBR and Foxman either caused or permitted the waste to by transported by Foxy's to the land. 234The meaning of "cause" has been considered in a number of cases (Environment Protection Authority v Multiplex Constructions Pty Ltd [2000] NSWLEC 6; (2000) 112 LGERA 1 at [238]-[262]; Olmwood at [351]-[355]; Walker (No 2) 2010 at [272] and [274]; Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change and Water [2012] NSWCCA 210; (2012) 82 NSWLR 12 at [80]-[87]; and Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229 at [108]). 235In Walker the Court of Criminal Appeal set out the relevant principles in determining the interpretation of the word "cause" (at [80]): 80 The appellant accepted that appropriate guidance in the resolution of these issues could be found in Environmental Protection Authority v Multiplex Constructions Pty Ltd [2000] NSWLEC 6; (2000) 112 LGERA 1 at [238]-[260]. The respondent did not contend otherwise. The relevant principles were accepted to be that: (a) "causing" should be given its common sense meaning: Alphacell Ltd v Woodward [1972] AC 824 at 834, 847; (b) a person causes a result where he or she deliberately and intentionally does an act which naturally produces a certain outcome: Alphacell at 839; (c) the defendant must engage in a positive act to "cause" something to occur and this act need not be an immediate cause: Environment Agency (formerly National Rivers Authority) v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 at 27-28; (d) the active involvement of a third party may, but does not necessarily, break the causal connection: Empress Car Co at 33, 36-37; and (e) in determining whether the involvement of a third party excludes the defendant as a causative factor, the court should consider whether the actions of the third party were an ordinary occurrence or something extraordinary. This is a question of fact: Empress Car Co at 36. 236Although the statutory context was different in Walker (s 44 of the Native Vegetation Act 2003 ("the NVA") provided a defence to a landholder who did not "cause or permit" another person to carry out the clearing), the language of s 44 of the NVA and s 143 of the POEOA is relevantly similar so that the principles articulated above are presently applicable. 237In summary, for a person to cause another person to carry out a breach of s 143 of the POEOA, there must be a positive act on the part of the first person. The causal nexus may exist by some active operation or chain of operations that leads to the other person carrying out the act of transportation (Walker (No 2) 2011 at [108]). And the positive act does not have to be the only cause - the fact that someone or something else could be said to have caused the other person to carry out the transportation is not inconsistent with a person, by his or her positive act, having caused that other person to carry out the transportation (Walker (No 2) 2011 at [108]). 238Applying the above reasoning to the present case, can it be said, on the available material, that BBR or Foxman deliberately and intentionally did a positive act that caused a particular outcome, namely, the transportation of waste to the land? In my opinion they did. As the directing mind and will of both Foxy's and BBR, it is a rational, if not common sense inference, that BBR, acting on instruction from its sole director, Mr Foxman, deliberately and intentionally allowed the waste fill material to be taken from the Banksmeadow Waste Facility, that it was operating, to the land for use as a waste facility. Equally, Foxman, deliberately and intentionally, it may be logically inferred, acting on the instructions of Mr Foxman, allowed the waste fill material to be taken to and deposited on the land it owned to be used as a waste facility. In each instance, therefore, BBR and Foxman caused the transportation of the waste to the land for the proscribed purpose. 239But even if I am wrong, and neither caused the transport of the waste by their actions, there can be no question that both entities permitted the transportation of the waste to the land. 240Again, this concept had been examined in a number of analogous decisions (Multiplex at [258]-[259] and [263]; Olmwood at [356]-[359]; Walker (No 2) 2010 at [272] and [274]; Walker at [87] and Walker (No 2) 2011 at [109], quoted above). In Walker (No 2) 2010 the Court, after reviewing the authorities, summarised the position as (at [274(g)], citation omitted): (g) seventh, to "permit" means to intentionally allow. That is to say, with knowledge or awareness rather than any intentional failure to act. Further, knowledge that something that is a contravention is likely to be done in the future is to "permit" it to be done. However, mere carelessness or negligence in failing to prevent an act giving rise to a contravention is not to "permit" it to occur. 241It is inconceivable, given the unique position of authority Mr Foxman held in the affairs of BBR, Foxman and Foxy's, and in light of the instructions he gave to move the waste from the Banksmeadow Waste Facility to the land, that BBR and Foxman did not know, or were not aware of, the act of transportation at the relevant time to the land. On any view, both entities permitted the waste to be transported in contravention of s 143 of the POEOA. 242In respect of Mr Foxman, his liability for breach of s 143 of the Act is more obvious. As he has admitted, he directed Foxy's (of which he was the sole director) to transport the waste from the Banksmeadow Waste Facility to the land and has the day-to-day management of that company. On any view, he either transported the waste directly, or he caused or permitted the transport of the waste to the land, through Foxy's. Alternatively, Mr Foxman was vicariously liable for Foxy's actions in transporting the waste to the land insofar as he directly authorised and instructed the very act of transportation by that entity (Walker (No 2) 2010 at [312]-[314] and the authorities referred to thereat and Walker (No 2) 2011 at [115] and the authorities referred to thereat). 243Finally, are any of the Foxman entities liable under s 143 of the POEOA as owners of the waste? On the material before me, it is not clear who owned the waste at the relevant time. In respect of BBR, it is the entity that operated the waste storage and processing facility at Banksmeadow but not the entity, as I understand it, that owns the site, which is Foxman Holdings (not a party to these proceedings). There is, moreover, no evidence before me that Mr Foxman, in his personal capacity owns the waste. As for Foxman, as the owner of the land it may be inferred to be the ultimate owner of the waste upon its placement on the land and this is arguably sufficient to attach liability to it on the basis that it caused or permitted the waste to be transported to its land for the impugned use.

The Land Cannot Lawfully be Used as a Waste Facility 244A place cannot be lawfully used for a particular purpose if it does not have such lawful authority as is required for that use (Hardt at [72] and [97]). In the absence of any development consent (the 2009 consent did not approve this use) or licence permitting the use of the land as a "waste facility", I find that the land cannot lawfully be used for this purpose (see generally Hardt at [69]-[79] and [97]-[98]). 245In conclusion, I find that all of the Foxman entities either transported, or caused or permitted to be transported, waste to the land for the unlawful use as a waste facility in breach of s 143 of the POEOA.

Breach of s 144 of the POEOA 246The council alleged that Foxman and Mr Foxman were in breach of s 144 of the POEOA. There are three elements to s 144. First, an owner or occupier of land uses, or causes or permits the land to be used, as a "waste facility". Second, the use of the land is as a "waste facility". And third, that there is no lawful authority to do so. It is convenient to deal with the second and third elements first. 247Applying the reasoning above, the council has demonstrated that the land was being used as a "waste facility" (the second element). 248Moreover, and consistent with my finding above in relation to s 143, in the absence of any development consent to use the land as a "waste facility" or a licence permitting this use, there was no lawful authority to do so (the third element). I note in this regard that s 144 employs the language of "without lawful authority", whereas s 143 speaks of a place "that cannot lawfully be used". In my opinion, it is unnecessary for me to parse the text of the two provisions in order to determine the consequences, if any, of the different language employed. In my view, nothing turns on the textual differences for the purpose of these proceedings. 249Turning to the first element of this offence, the evidence clearly discloses, in my opinion, that both Foxman, as the owner of the land, and Mr Foxman, as the sole director of Foxman, either used, or caused or permitted the land to be used, as a "waste facility", as that term is defined, in breach of s 144 of the Act.

Breach of s 142A of the POEOA 250At the conclusion of the evidence the Foxman entities admitted that "some" (they did not specify which) of the fill material deposited on the land constituted "land pollution", as that term is defined in the Dictionary of the POEOA, in contravention of s 142A of that Act. 251Having regard to the evidence and findings I have made above concerning the nature of the fill material ("waste", by reason of its contamination with asbestos, lead and other foreign materials), the volume and extent of the placement of the waste on the land, the manner of its placement, and, in particular, the evidence of the ecologists, the environmental and geotechnical engineers, Mr McEwan, Mr Wilson, Dr Prifti and Mr Godbee, and the definition of "land pollution" contained in the Act, it is tolerably clear that in respect of all of the unapproved waste fill material placed and handled on the land, pollution of the land has occurred for the purpose of s 142A of the POEOA. 252The land has, in my opinion, been degraded by reason of the depositing and re-use of material contaminated with asbestos, lead and other foreign materials which has been placed in a way that has, at least in one instance, for example, resulted in slope slippage and erosion. It has resulted in, at the very least, potential harm to the health and safety of human beings, and actual harm to ecosystems (for example, the clearing of EECs), both of which are not trivial. 253A person is liable for a breach of s 142A if that person actually pollutes land as defined (s 142A(1)), but also if they cause or permit land to be polluted (s 142A(2)). In light of the evidence and the admissions made by Mr Foxman on behalf of the Foxman entities, I find that each of Foxman, BBR and Mr Foxman either polluted the land or caused or permitted the land to be polluted. With respect to BBR, it must be remembered that it owned the earthmoving equipment and employed the driver that moved the waste material about the land.

Breach of s 120 of the POEOA 254The Foxman entities again conceded that "some" of the fill material deposited on the land was placed in a manner that constituted water pollution (again they did not specify which fill material), as that term is defined in the Dictionary, in breach of s 120 of that Act. 255Having regard to the evidence and findings I have made above concerning the nature of the fill material ("waste" by reason of its contamination with asbestos, lead and other foreign materials), the volume and extent of the placement of the waste on the land, the manner of its placement and, in particular, the evidence of the ecologists, the environmental and geotechnical engineers, Mr McEwan, Mr Wilson, Dr Prifti and Mr Godbee, and given the broad definition of "water pollution" contained in the Act, it is also clear that pollution of "waters", namely, WC1 and WC2, has occurred for the purpose of s 120 of the POEOA. 256Further, having regard to the evidence and the admissions made by Mr Foxman on behalf of the Foxman entities, I similarly have no hesitation in finding that both Foxman and Mr Foxman either polluted WC1 and WC2, or caused or permitted WC1 and WC2 to be polluted, in contravention of s 120. 257The evidence is more equivocal in respect of BBR, but permits, in my view, a rational and reasonable inference to be drawn given the admission by Mr Foxman that BBR owned and operated the earthmoving equipment (it employed the driver of that equipment) that moved the material on and about the land. I infer that these works, not limited in any way by Mr Foxman, included the works that caused the pollution of WC1 and WC2. Accordingly, BBR also caused or permitted water pollution in contravention of s 120.

Summary of Findings Under the POEOA 258The council has proved the breaches alleged by it against the Foxman entities under the POEOA. It follows that the council is entitled to relief pursuant to s 252 of the POEOA. These breaches include both past breaches and, to the extent that the waste remains on the land, continuing breaches. The nature and scope of the relief sought is discussed below.

Breach of the WMA 259As ultimately conceded by the Foxman entities, it is clear that the works carried out to and within WC1 and WC2 involved the carrying out of work and the deposition of material on "waterfront land" as defined in the Dictionary to the WMA, and therefore, required "controlled activity" approval under that Act. 260Because there was no controlled activity approval in force under the WMA in relation to the carrying out of the works affecting WC1 and WC2, the works were in breach of s 91E of that Act. 261The Foxman entities submitted that only Foxman was in breach of s 91E of the WMA. The council submitted that both Foxman and Mr Foxman had breached s 91E. In light of the admissions made by Mr Foxman concerning his involvement in the works and activities carried out on the land and given he is the sole director of Foxman, I find that both Mr Foxman and Foxman have contravened the WMA. Were it necessary to do so, I would have found that BBR was also in breach of s 91E for the reasons given above. 262It follows that pursuant to s 336 of the WMA, the injunctive relief sought against Foxman and Mr Foxman in the amended summons should be granted and remediation orders consistent with those proposed by Ms Ashby and Ms Stengl, and which were not in dispute, should be made.

Breach of the EPAA 263At the conclusion of the evidence it was agreed that the evidence disclosed breaches of s 76A(1)(a) of the EPAA in the following respects: (a) the works were carried out without a sewerage management facility application having been submitted to the council for approval in contravention of condition 6(3) of the 2009 consent; (b) the works were commenced and carried out without all the runoff and erosion controls as prescribed by condition 8(1) of the 2009 consent; (c) the works involved the removal and/or disturbance of vegetation outside of the approved building area, outside the site of permanent access ways and outside land extending a maximum of three metres beyond the outermost projection of the approved building, in contravention of condition 8(2) of the 2009 consent; (d) part of the western fire trail was constructed outside of the areas defined in the map at Figure 2 of the Flora and Fauna Report in contravention of conditions 1(1) and 1(2) of the approved 2009 consent, being that part shown to be outside the approved area on the marked up aerial photo appended to the affidavit of Mr Moriarty; (e) clearing was carried out within areas within at least one EEC (Shale Hills Woodland) as defined in the Figure 3 of the Flora and Fauna Report in contravention of condition 10(2) of the 2009 consent. At the time this clearing was carried out, a property vegetation plan had not been approved by the Catchment Management Authority as required by condition 10(4) of the 2009 consent; (f) because the design of parts of the fire trails was manifestly in excess of what would be required for that use, the work constituted, at least in part, a "land filling operation" as that term was defined in the WLEP, and hence development consent was required; and (g) the design and construction of fire trails, as depicted in the construction certificate, was inconsistent with the 2009 consent because the trails as shown on the construction certificate plans were constructed otherwise than in the location contained in the 2008 SEE and Figure 2 of the Flora and Fauna Report, contrary to condition 1(2) of the 2009 consent.

The Works Constituted "Filling" and a "Land Filling Operation" 264Although not conceded, I find that the evidence also disclosed that, in contravention of the SREP 20, the works breached s 76A(1)(a) of the EPAA insofar as no consent was sought or granted to carry out "filling", which the works plainly were when regard was had to the definition of that term in cl 11 of the SREP 20. There can be no doubt that in this case the "filling exceeds 1 metre in depth, or an area of 100 square metres". 265Foxman and Mr Foxman similarly denied that the works constituted a "land filling operation" for the purpose of the WLEP. However, when regard is had to the definition of that term in cl 6 of the WLEP, it is likewise clear that it was not just the design of the fire trails that infringed the WLEP, but also the placement of excessive amounts of fill on the land also (see cl 6 of the WLEP). 266As such, development consent was required. Because no such consent was obtained - the 2009 consent was not adequate to cover the scope of the works actually undertaken, travelling as they did well beyond the parameters of the construction of a residential dwelling and "fire trail" - s 76A(1)(a) of the EPAA was contravened.

The Works Constituted the Use of the Land as a "Waste Management Facility or Works" 267Lastly, Foxman and Mr Foxman refuted the allegation that the works constituted the use of the land for the purposes of a "waste management facility or works" as defined in cl 32 of Sch 3 of the EPA Regulations, contrary to the WLEP and in breach of the 2009 consent. I have found, however, that the works did constitute such a use of the land. 268This is because, first, having regard to the factual findings that I have made earlier in these reasons, there can be no doubt that the fill material was "waste" as that term is defined under Pt 4 of Sch 3 the EPA Regulations. The fill material is, in my view, both matter that was discarded from the Banksmeadow Waste Facility or alternatively refuse from the processing activities that took place at that Facility. I note that the fill material is not precluded from being waste merely because it was being reprocessed, re-used or recycled either prior to or after its placement on the land. And second, because the works on the land consisted of, at the very least, the use or re-use of material from waste and the disposal of that waste pursuant to either cl 32(1)(a)(iv) (comprising more than 200 tonnes per year) or cl 32(1)(d)(i) (within 100m of a natural waterbody, that is to say WC1 and WC2) of Sch 3 of the EPA Regulations. 269On any proper construction of the 2009 consent, having regard to a consideration of the consent as a whole in order to give effect to its apparent intention and the objective circumstances, which include the documents comprising the DA (Winn at [4]; Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 at [40]-[41] and CTI Joint Venture Company Pty Ltd v CRI Chatswood Pty Ltd (In Liq) (Receivers and Managers Appointed) (No 3) [2012] NSWLEC 6 at [77]), it cannot be concluded that the 2009 consent permitted the placement of the processed waste fill material on the land in the manner and the extent that occurred. 270Viewed objectively and at the appropriate level of generality having regard to the nature, extent and volume of the fill material deposited on the land, together with the manner of its placement, the proper characterisation of the development constituted by those acts was the use of the land for the purposes of a "waste management facility or works" as defined (Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529 at 534; Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 310; and Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 at [27]-[36]). 271In light of the admissions made by Mr Foxman concerning his involvement in the acts giving rise to the alleged breaches of the EPAA and in the activities of Foxman, the owner of the land, I find that both Foxman and Mr Foxman have breached the EPAA as described above. To the extent that the waste fill endures on the land, these breaches are both past and present contraventions of the Act. 272It follows that pursuant to s 124 of the EPAA, the council is entitled to some or all of the relief it seeks. The nature and scope of the appropriate relief is discussed below.

Discretion to Declare, Restrain and Remedy 273The orders that the council requested the Court to make to remedy and restrain the breaches of the EPAA, POEOA and the WMA in light of the contraventions found above fell into three categories: first, declarations that the works carried out were in breach of the EPAA and the POEOA; second, orders restraining Foxman and Mr Foxman from engaging in any further unlawful works on the land in contravention of the EPAA, the POEOA and the WMA; and third, orders requiring Foxman and Mr Foxman to take certain actions to remedy, remediate and rehabilitate areas of the land affected by the unlawful works and activities occasioning the contraventions of the abovementioned statutes.

The Declarations Sought Ought to be Made 274In light of my findings that the Foxman entities have, in their various capacities, breached the EPAA, the POEOA and the WMA, the declaratory relief sought by the council was curiously restrictive. 275The council seeks only two declarations. First, that the 2009 consent does not permit the carrying out of works constituting "filling" or the use of the land for the purpose of a "land filling operation" or as a "waste management facility or works", as those terms are defined under the EPAA and relevant planning instruments. And second, that the land cannot lawfully be used as a "waste facility" under the POEOA. 276In my opinion, it is appropriate for the Court to grant the declarations sought in light of the fact that the current use of the property constitutes unlawful development in breach of s 76A(1)(a) of the EPAA as found above (cf Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1). 277This is because, first, the Foxman entities have continued throughout the proceedings to deny most of the breaches of the EPAA and POEOA (Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118 at [279]) and put the council to strict proof on most matters pleaded in the points of claim. Moreover, when ultimately concessions and admissions were proffered they came largely after the evidence had concluded. Second, the breaches cannot be said to be merely technical (Simpson v Wakool Shire Council [2012] NSWLEC 163; (2012) 190 LGERA 143 at [84]). Third, many of the breaches are continuing (Marrickville Council v Tanwar Enterprises Pty Ltd [2009] NSWLEC 127 at [37] and Venn at [280]). Fourth, there is a demonstrable purpose in making the declaration insofar as it serves to declare the law and advances the regulatory objects of the EPAA and the POEOA. The making of the declarations will assist in serving the public interest by ensuring compliance with the EPAA and the POEOA (Council of the City of Sydney v Mae [2009] NSWLEC 84 at [29]). 278As I stated in Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 (at [20], quoted with approval in Venn at [281]): ...the making of the declarations marks the disapproval of the Court of conduct that Parliament has proscribed. It also serves to discourage others from acting in a similar way and may, therefore, be seen to have a deterrent and educative element. The granting of the declaration may accordingly be seen as advancing the regulatory objects of the EPAA (s 5 of the EPAA and Humane Society v Kyodo Senpaku [2006] FCAFC 116; (2006) 154 FCR 425 at [22]-[27]). 279A similar sentiment was expressed in Winn (at [308]), Venn (at [282]) and Ryde City Council v Chen ([2012] NSWLEC 63 at [84]). The comments are equally apposite here, especially having regard to the regulatory objects of the POEOA (contained in s 3, especially at (a), (b), (c) and (d)) and the EPAA (contained in s 5, especially at (a)(i), (ii), (vi), (vii) and (c)).

The Injunctive and Remedial Relief Sought Ought to be Made 280Given the commonality between the submissions made by the parties for and against the granting of the injunctive and remedial relief sought by the council pursuant to the breaches found above, it is convenient to deal with the arguments concerning both forms of relief together. 281The powers conferred on this Court to grant injunctive relief in s 124 of the EPAA, s 252 of the POEOA and s 336 of the WMA are broad but not wholly unfettered, and must be exercised having regard to the scope and objects of each Act (Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308; (2011) 82 NSWLR 171 at [149]; Hunters Hill Council v Fraser [2006] NSWLEC 744 at [25] and Glaser v Poole [2010] NSWLEC 143 at [60]-[63]). 282The principles governing the exercise of the discretion are well settled. They can be found in the decisions of the Court of Appeal in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 and ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67. They have been applied countless times in this (for example, Venn at [338]-[343] and Dobrohotoff v Bennic [2013] NSWLEC 61 at [82]-[85]) and other courts (Tynan v Meharg [1998] NSWSC 592; (1998) 101 LGERA 255 at 260). 283In a seminal passage in Sedevcic, Kirby P stated the following guidelines (at 339-341, citations omitted): Guidelines for the exercise of discretion: A number of guidelines may usefully be stated as applicable to the exercise of the Court's discretion in a case such as the present: 1. The discretionary power conferred on the Court by s 124 of the Act is wide. Relevantly to the present case, it is as wide as the discretion enjoyed by the Supreme Court in its equitable jurisdiction: Attorney-General and Down County Council v Newry No 1 Rural District Council [1933] NI 50 and Associated Minerals Consolidated Ltd v Wyong Shire Council [1974] 2 NSWLR 681 at 692. 2. It is undesirable to endeavour, by drawing upon decisions in differing fact situations which have presented in earlier cases, to attempt to catalogue or classify all of the circumstances which will enliven the exercise of the discretion in cases yet to come. By the statute, the discretion is not fettered. It is not limited either to particular classes of case or to limited or special cases: Blacktown Municipal Council v Friend (1974) 29 LGRA 192 at 197. Nonetheless, keeping that salutory warning in mind, it can be instructive, and helpful in the achievement of the generally consistent application of the law (which the creation of a specialist Land and Environment Court facilitates) to consider the variety of circumstances in which the discretion conferred by the section has been exercised. The Council itself conceded that relevant factors would include the fact that the breach complained of was a purely technical breach which was unnoticeable other than to a person well versed in the relevant law (cf Parramatta City Council v R A Motors Pty Ltd (1986) 59 LGRA 121 at 125f) or the fact that the local authority had delayed the bringing of its action (ibid at 125), or the fact that, far from having an adverse effect on the environment or the amenity of the locality, the breach, in reality, had been shown to have a beneficial effect: cf, eg Woollahra Municipal Council v Carr (1982) 47 LGRA 105 and cf North Sydney Municipal Council v Ekstein (1985) 54 LGRA 440. 4. [sic] In exercising the discretion, it must be kept in mind that the restraint sought is not, in its nature, the enforcement of a private right, whether in equity or otherwise. It is the enforcement of a public duty imposed by or under an Act of Parliament, by which Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment. Attorney-General v BP (Australia) Ltd (1964) 83 WN (Pt 1) (NSW) 80 at 87; 12 LGRA 209 at 218. Because s 123 of the Act permits any person (and not just the Attorney-General or a person with a sufficient interest), to bring proceedings in the Court for an order to remedy or restrain a breach of the Act, there is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid: cf Attorney-General v Harris [1961] 1 QB 74 at 94; Trimboli v Penrith City Council (1981) 48 LGRA 323 and Deane J (dissenting) in Lizzio v Ryde Municipal Council (1983) 155 CLR 211. 5. It is only in this sense that "special" circumstances need to be established to secure a favourable exercise of the discretion provided by s 124. There is nothing in the Act by which the discretion is fettered or limited to "special cases", as Mahoney J, as he then was, pointed out in analogous circumstances in Blacktown Municipal Council v Friend (at 197). But the obvious intention of the Act is that, normally, those concerned in development and use of the environment will comply with the terms of the legislation. Otherwise, if unlawful exceptions and exemptions became a frequent occurrence, condoned by the exercise of the discretion under s 124, the equal and orderly enforcement of the Act could be undermined. A sense of inequity could then be felt by those who complied with the requirements of the Act or who failed to secure the favourable exercise of the discretion under s 124. 6. Where the application for the enforcement of the Act is made by the Attorney-General, or a council, a court may be less likely to deny equitable relief than it would in litigation between private citizens: Associated Minerals Consolidated Ltd v Wyong Shire Council (at 692). This is because the Attorney-General or the Council are seen as the proper guardians of public rights. Their interest is deemed to be protective and beneficial, not private or pecuniary: cf Rowley v New South Wales Leather Trading Co Pty Ltd v Woollahra Municipal Council (1980) 46 LGRA 250. Of course, as the development or administrative law demonstrates, administrators who advise the Attorney-General or councils can sometimes act from motives which are less disinterested. Courts will be alert to insensitive, unthinking administration in this as in other fields of law. 7. Where the relief is sought against a "static" development (ie the erection of a building) which, once having occurred can only be remedied at great cost or inconvenience, the discretion may, in the normal case, be more readily exercised than where what is involved is a continuing breach by conduct which could quite easily be modified to bring it into compliance with the law: see Blacktown Municipal Council v Friend (at 197). But this observation is simply a reflection of the judicial perception in balancing, on the one hand, the public interest in equal compliance with the law and, on the other, the degree of irremediability occasioned by the breach and the expense or inconvenience which would follow the law's enforcement: cf Associated Minerals case (at 692). It does not amount to a hard and fast exception to the discretion. That discretion must be exercised in every case in which it is invoked. Nor is it a reason to refuse relief where no "static" development can be proved. 8. The wide discretion has been described as "an adequate safeguard against abuse of a salutary procedure": see Menzies J in Cooney v Ku-ring gai Municipal Council (1964) 114 CLR 582 at 605; (1963) 9 LGRA 290 at 306. It permits the court to soften, according to the justice of particular circumstances, the application of rules which, though right in the general, may produce an unjust result in the particular case. Sometimes this "softening" can be achieved by postponing the effect of injunctive relief: see, eg, Woollahra Municipal Council v Carr. Sometimes that evidence will not achieve a just result. The remedy of injunction, with its powerful sanctions, is not, after all, the only remedy available to a local government authority for breaches of the Act. Criminal prosecution, with its heavier onus of proof and rigorous procedures may offer an inadequate means, in the typical case, for the enforcement of environmental law in the public interest. Furthermore the provisions of s 123 of the Act indicate an enlargement of the availability of injunction for breach of that law. However the refusal of a court to grant an injunction, in the exercise of its discretion, does not necessarily conclude the authority's remedies. 284In ACR the President further noted (at 82, with whom Samuels JA and Hunt AJA agreed at 86): Nevertheless, it is important to appreciate the wide scope and purpose of the discretion conferred by s 124 of the Act. Clearly, it is not a warrant to set at nought the complicated and sensitively balanced provisions of the legislation, substituting for the operation of the law laid down by Parliament, the personal opinions of the judge hearing the case. On the other hand, it would be equally erroneous to ignore the discretion or to give it an unduly restricted operation. It is just as much part of the structure and scheme of the Act, for the enforcement of planning law, as are the other parts. In Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, I collected the authorities and the principles which are applicable to the approach to be taken by a judge exercising the discretion conferred by s 124(1). That discretion is a mollifying one. It permits, in appropriate cases, the refusal of injunctive relief where to grant such relief would work such an injustice as to be disproportionate to the ends secured by enforcement of the legislation including by injunction. 285The council seeks a number of orders restraining Foxman and Mr Foxman from carrying out any development in breach of the EPAA by using the land as a "land filling operation", carrying out "filling" or using the land as a "waste management facility or works". It also seeks an order restraining Foxman and Mr Foxman from using the land as a "waste facility" or transporting waste to the land absent lawful authority, under the POEOA. Finally, it seeks an order restraining Foxman and Mr Foxman from carrying out any further "controlled activity" on any "waterfront land" in breach of the WMA. 286The council also seeks orders to remedy the breaches of the EPAA, the POEOA and the WMA. The reference to "remedy" in each of s 124 of the EPAA, s 252 in the POEOA and s 336 in the WMA is sufficient to encompass orders by the Court requiring the removal of the unlawfully deposited waste material and the rehabilitation of the land harmed by the unlawful conduct (Winn at [105]-[106], [309] and [315] and Venn at [307]). In addition, the Court has jurisdiction under ss 20(2) and 20(3)(a) of the Land and Environment Court Act 1979 to enforce obligations imposed by the EPAA and the POEOA, including through the making of remedial orders. 287Other than the rehabilitation orders agreed to by Ms Stengl and Ms Ashby for the rehabilitation of the EECs and WC1 and WC2, Foxman and Mr Foxman opposed the injunctive and remedial relief sought by the council. In particular, they opposed the removal of the waste fill from the land. To summarise, this was because: (a) the works carried out on the land, including the importation of the fill material, at least in part fell within the terms of the 2009 consent; (b) they believed the works to have been certified; (c) by reason of the meeting at the council on 26 May 2010 and the conduct of the council thereafter, it was the council's and Dr Martens' position that remediation of the land absent total removal of the fill was possible, but not preferable. This was consistent with the evidence given by Dr Martens in cross-examination (T212.42-212.48). They submitted that the Court has previously allowed for the continued presence of unlawful fill by making orders to accommodate this activity (Pittwater Council v Schiliro [2000] NSWLEC 175 and Pittwater Council v Nix [1993] NSWLEC 162), or at least considered that a person who has undertaken such activity should be given the opportunity to see what modifications to the land form can be permitted by agreement with the appropriate regulatory authority (Holroyd City Council v Murdoch (1994) 82 LGERA 197). This principle was, it was contended, enshrined within the EPAA (s 124(3)); (d) there was no scheme by which the Foxman entities intentionally sought to move non-exempt fill material from the Banksmeadow Waste Facility to the land for its use as a waste facility; (e) the majority of the fill material was not properly classifiable as "waste" because it was exempt under The recovered aggregate exemption 2010; (f) the fill material was not as unsafe as Dr Martens suggested. The asbestos was bonded and both it and any lead "hot spots", as the evidence of Mr Lau demonstrated, could be removed and managed and the remaining fill and affected land remediated and rehabilitated. As the evidence of Mr Darroch indicated, the remediation and rehabilitation works proposed in the 2010 development application and 2010 SEE would more immediately respond to the environmental impacts caused by the carrying out of the works on the land and produce a better environmental outcome having regard to the objects of the EPAA and the POEOA; (g) thus the continued presence and use of the fill material on the land is acceptable in planning terms according to the evidence of Mr Darroch; (h) the fire trails can be made stable according to the evidence of the geotechnical experts, thereby serving the important purpose of bushfire protection; (i) the disposal of the material to landfill elsewhere would be contrary to social and governmental policy. The re-use and recycling of material fulfils a laudable social purpose as reflected in numerous government policies (T212.33-212.36), such as the Western Australian Guidelines and the EPA's Contaminated Sites Guidelines for the NSW Site Auditor Scheme; and (j) the ordering of the removal of the fill material would be inconsistent with draft national guidelines for dealing with the remediation of sites containing asbestos. 288In light of the reasons given and findings made above, these arguments may be briefly disposed of as follows: (a) as I have found, given the extensive nature of the earthworks carried out on the land and the characterisation of the fill material as "waste", the works fell outside the terms of the 2009 consent; (b) the construction certificate, issued as it was after work had commenced, provides scant reassurance to either party; (c) it is true that the council contemplated, at the 26 May 2010 meeting (while the stop work order and the clean up notices were extant) and thereafter, the regularisation of the works on the land by lodging a development application and a s 96 modification application in respect of the works. It is equally correct that the council maintained this position between 27 May and 13 April 2010. However, at all times the council and Dr Martens made it clear that the issue of whether or not the material deposited on the land was waste remained extant. It was for this reason that at that meeting Dr Martens stated, in his view, that an environmental impact statement would be required with any application lodged. It was his opinion that by reason of the presence of asbestos, the fill material was waste. At all times the concern of Dr Martens and of the council was to ensure that there was no harm to the environment or risk to public health. The retention of some of the material on the land was always subject to the appropriate environmental and public health risks being accommodated. Thereafter, it was the council's determination that the relevant waste exemptions did not apply and that there was a "wide distribution of asbestos that is classified as Special Waste (asbestos waste)" and lead exceeding contaminant thresholds, that resulted in the council concluding that the material had to be removed. It was the refusal of Mr Foxman to sign an undertaking to this effect that resulted in the commencement of these proceedings. Thus while the council, and Dr Martens, initially believed that the retention of some of the fill was possible, once it became apparent that the fill material contained significant amounts of, in particular, asbestos and lead, their attitude to retention understandably changed; (d) contrary to the submission put, I have found that the Foxman entities intentionally sought to move non-exempt fill material from the Banksmeadow Waste Facility to the land for its use as a waste facility. I repeat the reasons above at [206]; (e) contrary to the submission put, I have found that the majority of the fill material is not properly classifiable as "waste" under either The recovered aggregate exemption 2008 or The recovered aggregate exemption 2010 by reason of the presence of asbestos, lead and other foreign contaminants in quantities exceeding the criteria stated in those exemptions. In doing so, I have rejected the evidence of Mr Lau; (f) I have accepted the evidence of Dr Martens as to the likely quantity of asbestos distributed throughout the fill material and the risk that the continued presence of the asbestos and lead on the land poses to the environment and to human safety. Although the asbestos is bonded, the fill will require further handling by earthmoving machinery in order to remediate it and render it stable. This brings with it the risk of breaking or further breaking down the asbestos and releasing harmful fibres. While entombment was possible, this would be difficult on the land because of "the steep slopes and the nature of the soils and ridge lines and valleys". It was also not possible, as the evidence of Dr Martens demonstrated, to simply remove any "hot spots". In these circumstances, it is incumbent on the Court, in my view, to apply the precautionary principle in any determination of the appropriate relief to be granted. The precautionary principle, which is a principle of ecologically sustainable development (see s 3(a) of the POEOA, s 3(a) of the WMA and s 5(a)(vii) of the EPAA), is directed towards the prevention of serious and irreversible harm to the environment in situations of scientific uncertainty. Its premise is that where uncertainty exists concerning the nature and scope of environmental harm, caution should be exercised (Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270 at 282; Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256 and Barrington-Gloucester-Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure [2012] NSWLEC 197 at [150]-[151]); (g) any conclusion that the continued presence and use of the fill material on the land was acceptable in planning terms based on the evidence of Mr Darroch and as contained in the 2010 SEE and the 2010 development application, cannot be maintained given that the views that he expressed in his report were based on incomplete information and given that Mr Walker resiled in large part during the hearing from the views he had expressed in the Jeffery and Katauskas Report attached to the 2010 SEE forming part of the 2010 development application; (h) the fire trails can be made stable but, as Dr Martens noted, not without the risk of disturbing the asbestos present and, as Mr Walker and Dr Martens stated, not without the importation of considerable quantities of additional fill and the completion of further significant earthworks, excavation, recompaction and drainage works. The comment made above in (g) concerning Mr Walker's evidence is reiterated; and (i) the disposal of the material to landfill elsewhere would not be contrary to social and governmental policy as submitted by Foxman and Mr Foxman. While the re-use and recycling of material fulfils a commendable social purpose as reflected in numerous government policies, this purpose must be balanced against the risks to the environment and to human safety posed by land contaminated with asbestos on a continuing basis. Furthermore, as the council submitted in reply, although these guidelines express a general preference, where possible, for asbestos contaminated fill to be left in situ, this, as the Western Australian Guidelines note, depends on the level of contamination (here, unacceptably high); adequate asbestos contamination investigations and risk assessments having taken place (here, questionable); and whether or not other contaminants or additional demolition debris are present (here, they are, namely, lead and other foreign materials). According to the Contaminated Sites Guidelines for the NSW Site Auditor Scheme, regard must also be had to whether the on-site treatment proposed will destroy or reduce to an acceptable level the asbestos and other contaminants present (here, unlikely) and whether a large quantity of soil is involved (here, it is), both factors which militate against on-site remediation. Moreover, as the Contaminated Sites Guidelines for the NSW Site Auditor Scheme state in sections 4.3.7 and 4.3.9, when reviewing proposals relating to the management of contaminated waste, site auditors "must" have regard to the POEOA and the POEO Waste Regulations, which, in the case of asbestos and asbestos waste, would include cl 42 of those Regulations. Finally, both guidelines are just that, and while undoubtedly a relevant consideration, as Dr Martens stated in his oral evidence, the guidelines are not universally applied by all practitioners in the field; and (j) while the ordering of the removal of the fill material may be inconsistent with draft national guidelines for dealing with the remediation of sites containing asbestos, the precise detail of these guidelines is not known and, in any event, each case turns on its individual facts and circumstances. 289These facts and circumstances presently include: (a) the objects in s 3 of the POEOA and s 5 of the EPAA (as cited above), balancing as they do, the need for economic development and the need to protect the environment; (b) the fact that the deposition of the waste onto the land has involved serious contraventions of the POEOA, the EPAA and the WMA that were more than merely trivial or technical breaches of those statutes. Having established this, Foxman and Mr Foxman should be restrained from continuing any further breach of the EPAA, the POEOA or the WMA (Venn at [288] and the authorities referred to thereat); (c) there is a public interest in the proper enforcement and public administration of environmental and planning statutes and the protection of the environment (Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1 at [56] and Venn at [339]); (d) all of the fill material is significantly contaminated with asbestos and has concentrations of lead and foreign materials, which falls outside the waste exemption requirements and, in its current state, it therefore poses a risk to human safety and the environment; (e) the waste deposition has left an unstable structure from a civil engineering perspective, with a slope slippage having already occurred on the land and fire trails and roads that are not trafficable in all weather conditions. Erosion, sedimentation and drainage problems continue to be an issue. Further earthworks will be required in order to stabilise the deposited waste material, exacerbating the risk of harm described above. In short, it is not a "static development" (Sedevcic at 340 and Venn at [341]-[342]); (f) the Foxman entities have acted in deliberate and determined contravention of the directions of the council and other regulatory agencies in importing the waste fill material to the land in the following manner (Venn at [344]): (i) they were on notice as early as August 2008 from TCG Planning that the placement of the fill would require specific development consent for this use; could constitute designated development; and could impact EECs and watercourses present on the land; (ii) they were aware that the material proposed to be use as fill on the land, and was in fact used as fill, was waste. They were aware that the material did not fall within the waste exemptions and that BBR had been unsuccessful in its application for a waste exemption for "select fill" to displace the licensing requirements of the POEOA and the requirements of the EPAA; (iii) with the desire to use the material as landfill, Mr Foxman, and not BBR, applied for development consent for fire trails and a residential dwelling utilising "minimal cut and fill" without disclosing to the council the intention to deposit a large volume of processed waste material on the land from the Banksmeadow Waste Facility; (iv) they continued to import fill onto the land after the council had raised its concerns as early as October 2009, and despite the council having issued two NISOs and a stop work order and a restoration order issued under s 121B of the EPAA; (v) they were on notice as early as November 2009 that the fill contained or was likely to contain asbestos; (vi) they continued to transport and deposit waste fill onto the land in defiance of a clean-up notice and a varied clean-up notice issued under the POEOA, with the knowledge at that time that the material contained asbestos and failed to meet waste exemption requirements; and (vii) I repeat the facts set out above at [206]; (g) as the entities responsible for causing harm to the environment occasioned by their contraventions of the EPAA, the POEOA and the WMA, Mr Foxman and Foxman should be responsible for remedying it. Such a course implements the polluter pays principle, which is also one of the principles of ecologically sustainable development (see, for example, s 3(a) of the WMA, s 5(a)(vii) of the EPAA and s 3(a) of the POEOA). "Expressed simply, this principle holds that those who generate pollution or waste should bear the costs of containment, avoidance or abatement" (Venn at [328]-[329]); (h) there is no evidence before the Court that either Mr Foxman or Foxman cannot afford to pay for the removal of the fill and the rehabilitation of the land harmed by their conduct (Venn at [336]). In any event, any economic prejudice to Mr Foxman or Foxman caused by making the orders needs to be balanced against the prejudice to the public interest if the orders are not made (Venn at [337]); and (i) there is no conduct on the part of the council which would preclude the granting of the relief. I do not accept the suggestion that the council, in seeking to resolve the matter at the 26 May 2010 meeting and thereafter, gave tacit acceptance to the retention of the waste fill on the land. 290In my opinion, having regard to all of the facts and circumstances of this case, the weighing exercise falls heavily in favour of making the orders restraining any future breach of the EPAA, the POEOA or the WMA, and to remediate and rehabilitate the land by, amongst other things, removing the entirety of the waste fill material unlawfully brought onto the land. It is therefore appropriate that the injunctive and remedial relief sought by the council in the 2010 proceedings be granted.

The 2011 Proceedings: Designated Development 291In the 2011 proceedings, the applicant, Foxman, seeks declaratory relief, namely, that the development described in the 2010 SEE in respect of the land is not "waste management facilities or works" as that term in defined under cl 32(1)(d) of Sch 3 of the EPA Regulations and is therefore not "designated development" within the meaning of that term pursuant to s 77A of the EPAA and Sch 3 of the EPA Regulations. 292The facts relevant to the 2011 proceedings were not in contention and were contained in the affidavit of Mr Charles Lethbridge, a solicitor retained by Foxman. 293On 20 December 2010, Foxman lodged with the council a development application in respect of the works on the land comprising: (a) the development application form; (b) the 2010 SEE (referred to above with respect to the 2010 proceedings); (c) a Flora and Fauna Assessment Report; (d) a Remedial Action Plan by JBS (also referred to above with respect to the 2010 proceedings); (e) an Ecological Review; (f) a Geotechnical Opinion by Mr Bruce Walker of Jeffery and Katauskas dated 2 December 2010 (the Jeffery and Katauskas Report referred to above with respect to the 2010 proceedings); (g) a Bushfire Hazard Assessment Report; (h) a Fluvial Geomorphology and Impact Assessment; and (i) a BASIX certificate. 294The documents were delivered by hand to the council on 20 December 2010. 295On 21 December 2010 the council rejected the development application. In doing so, the council stated that: (a) the proposed development concerned works that stored waste, or used or re-used material from waste, and that these works were located within 100m of a natural waterbody; (b) as a consequence, the proposed development was for "waste management facilities or works"; (c) as a consequence, the development was "designated development"; and (d) that therefore the development application had to be accompanied by an environmental impact statement, which was absent. 296Further particulars of the council's rejection of the development application were contained in a letter dated 1 March 2011 from the council's lawyers. The letter stated that: Broadly speaking, the proposed development has two components. Firstly it involves the retention on site and use or re-use of the waste material which has already been deposited on the land. Secondly it involves the proposed importation of a large amount of additional processed waste material from the Banksmeadow Waste Facility onto the Land and the disposal or use or re-use of that material. Having regard to the two components of the proposed development, it would constitute a waste management facility or works within the meaning of clause 32 of Schedule 3 by reason of it falling within the ambit of both the chapeau to that clause and also subparagraphs (a) and (d) of that clause. 297Under Pt 1.1 of the 2010 SEE the proposed development is described as follows: This development application seeks consent for the use of those works which have been carried out on the site, rectification works to restore watercourses and bushland areas, rectification and remediation works to improve the performance of works carried out to date, and works to complete the fire access trails including compaction, cut and fill, battering, vegetation and landscaping, bush regeneration and weed eradication. The application includes the erection of a dwelling and its attendant infrastructure and the carrying out of bushfire management works. The application includes the importation of further fill to complete the fire access trails in a manner which would comply with the 4.3.2 Property Access Roads under "Planning for Bushfire Protection" 2001. 298Including "the erection of a dwelling and its attendant infrastructure" the works contemplated in 2010 SEE may be summarised as: (a) the rectification and rehabilitation of WC1 and WC2 in accordance with the Fluvial Geomorphology and Impact Assessment; (b) the regeneration of bushland areas by a vegetation management plan, including an effective weed eradication program. The weed eradication would "unavoidably" cause some clearing of native vegetation; (c) the completion, including rectification works, of fire trails and tracks in accordance with the Jeffery and Katauskas Report and the Fluvial Geomorphology and Impact Assessment annexed to the 2010 SEE; (d) re-vegetation using dense hardy vegetation; (e) the clearing of some native vegetation; (f) the addition of 17,870m³ or 33,900 tonnes of fill material to be imported to the site comprising 50mm recycled aggregate for bulk filling and sub-grade improvement and 20mm recycled aggregate material for the sub-base layer in accordance with the VDM Consulting report dated 12 October 2010; (g) remediation works, including the removal of asbestos and other likely contaminants from the fill by a licensed asbestos removalist and suitably qualified environmental consultants; (h) the construction of the dwelling and attendant infrastructure; and (i) bushfire management works to create an asset protection zone.

The Statutory Framework 299Section 77A(1) of the EPAA states: 77A Designated development (1) Designated development is development that is declared to be designated development by an environmental planning instrument or the regulations. 300Clause 4(1) of the EPA Regulations states: 4 What is designated development? (1) Development described in Part 1 of Schedule 3 is declared to be designated development for the purposes of the Act unless it is declared not to be designated development by a provision of Part 2 or 3 of that Schedule. 301As quoted above, cl 32 of Sch 3 of the EPA Regulations provides a definition of "waste management facilities or works". 302Also as quoted above, the term "waste" is defined under Pt 4 of Sch 3 at cl 38 and applies that definition throughout Sch 3 (see cl 4(2) of the EPA Regulations). 303Finally, cl 37A of Sch 3 of the EPA Regulations provides that development of a kind specified in Pt 1 (which includes cl 32) is "not designated development" if it is "ancillary" to "other development" and "is not proposed to be carried out independently of that other development".

The Proposed Development is "Designated Development" 304Foxman submitted that the development was not "designated development" because, first, the proposed development as described in the 2010 development application was not a "waste management facility or work". The works proposed involved the use of existing fill and the importation of further fill, for the purpose of constructing fire access roads in preparation for the erection of a dwelling on the land, and not for a waste management facility or works to be carried out on the land. Further, it submitted, that there was no evidence that any "waste", as defined, would be involved in the proposed development. Second, Foxman submitted any use of the waste would be "ancillary" to the dominant purpose of using the land for residential purposes. 305The submissions must be rejected. First, applying my reasoning and findings made with respect to the 2010 proceedings, to the extent that the works in the proposed development involve the use of the existing "waste" fill, the land is to be used as a "waste management facility or works", as that term is defined under the EPA Regulations (see above at paragraphs [267] - [271]). 306Second, to the extent that the 2010 development application relied on the geotechnical opinion of Mr Walker (the Jeffery and Katauskas Report), as the geotechnical evidence in the 2010 proceedings demonstrated, Mr Walker resiled from the opinions he expressed in that Report and the geotechnical solutions presently proposed by him to remediate the land are inconsistent with the proposal described in the 2010 development application and contained in the 2010 SEE. 307Third, having regard to the nature (containing asbestos, lead and other foreign material "waste" under the EPA Regulations) and volume of the fill (approximately 25,000 tonnes) already deposited on the land; the manner and circumstances of its placement; the fact that a further 33,900 tonnes of fill material is required to be imported to the site in accordance with the VDM Consulting report dated 12 October 2010 (which was in relevantly identical terms to the 11 October 2010 letter sent to and rejected by the EPA as the basis for any exemption for "select fill" applied for by BBR); and the extensive remediation and rehabilitation works proposed, it cannot seriously be said that proposed development is ancillary to the use of the land for residential purposes (see Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 160; Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 at 409 and Penrith City Council v Waste Management Authority (1990) 71 LGRA 376 at 387. Cf Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294; Silverwater Estate Pty Ltd v Auburn Council [2001] NSWLEC 60 and Moore v Yarrowlumla Shire Council [2002] NSWLEC 62; (2002) 120 LGERA 109, the latter two decisions having been relied upon by the Foxman entities, and which are, in my opinion, distinguishable on their facts). That what is proposed in the development application and 2010 SEE is not described as a waste management facility or works is not, of itself, sufficient. The dominant use of the land is, and will be, that of a waste management facility or works and not the use of the land for residential purposes. 308Because I have determined that the proposal is designated development, it is not necessary to decide the question of relief, and the summons in the 2011 proceedings must be dismissed.

Costs 309The parties submitted that in each matter costs ought to be reserved. Given the complexity of the proceedings, it is appropriate that this course be followed.

Orders 310In conformity with the reasons given above in the 2010 proceedings (40578 of 2010), the Court grants the following relief:

Relief Under s 124 of the EPAA (1) a declaration that the 2009 consent, dated 16 March 2009 and issued by the applicant to the second respondent, does not permit the carrying out on the property being Lot 733 in DP 811421 known as 35 Evelyns Range Road, The Oaks ("the land") of any of the forms of development identified in order 2 below which are in contravention of s 76A(1)(a) of the Environmental Planning and Assessment Act 1979 ("the EPAA"); (2) an order that the first and second respondents be restrained from carrying out, or causing or permitting to be carried out, any of the following forms of development on the land unless and until development consent under the EPAA is granted permitting such development to be carried out on the land: (a) the use of the land for the purpose of a "land filling operation" as that term is defined in the Wollondilly Local Environmental Plan 1991; (b) the carrying out of works constituting "filling", as that term is defined in the Sydney Regional Environmental Plan No 20, without development consent; and (c) the use of the land for the purpose of a "waste management facility or works" as that term is defined in cl 32 of Sch 3 of the Environmental Planning and Assessment Regulation 2000; (3) an order that, within 90 days of the date of these orders, the first and second respondents remove, or procure the removal of, the fill material from the land as identified in the Lean & Hayward survey dated 26 May 2010 annexed hereto and marked 'A' and dispose of the waste at a waste facility or facilities licensed under the Protection of the Environment Operations Act 1997 ("the POEOA") to accept such waste; (4) an order that, within 90 days of the removal of the fill material referred to in order 3 above, the first and second respondents remediate, or procure the remediation of, the land in accordance with a Remediation Management Plan approved by the applicant; (5) an order setting aside construction certificate number 3002786 dated 7 October 2009 and issued by the fourth respondent;

Relief Under s 252 of the POEOA (6) a declaration that the land is a place that cannot lawfully be used as a "waste facility" as that term is defined in the POEOA; (7) an order restraining the first, second and third respondents from transporting "waste", as that term is defined in the POEOA (the "waste"), to the land or causing or permitting waste to be transported to the land, including any waste from the waste facility operated by the third respondent at 38 McPherson St, Banksmeadow, unless and until all requisite lawful authorities have first been granted to use the land as a waste facility for such waste; (8) an order restraining the first and second respondents from using the land, or causing or permitting the land to be used, as a waste facility for the waste, or any other waste, unless and until all requisite lawful authorities have first been granted to use the land as a waste facility for such waste; (8A) an order that, within 90 days from 18 September 2013, the third respondent removes, or procures the removal of, the waste fill material from the land as identified in the Lean & Hayward survey dated 26 May 2010 annexed hereto and marked 'A', and disposes of the waste fill material at a facility or facilities licensed under the POEOA to accept such waste.

Relief Under s 336 of the WMA (9) an order restraining the first and second respondents from carrying out any "controlled activity" within 40m of any "waterfront land", as those terms are defined in the Water Management Act 2000 ("the WMA"), on the land unless and until a controlled activity approval is granted under the WMA; (10) an order that, within 90 days of the date of these orders, the first and second respondents carry out the following works to reinstate the beds and banks of waterfront land and to rehabilitate and revegetate waterfront land, where controlled activities have been carried out on waterfront land on the land in contravention of s 91E of the WMA: (a) to the extent not covered by any order above, remove the earthworks/dam adjacent to the northern boundary of the land generally in the location marked '5' on the plan annexed hereto and marked Annexure 'B' and rehabilitate the creek known as WC1 in the vicinity of the dam in accordance with the schedule of works in Schedule 1; (b) rehabilitate the creek known as WC2 in the north-eastern section of the land in accordance with the schedule of works in Schedule 2; (c) carry out stabilisation, drainage and erosion control works on the tracks generally on the land in the locations marked '2' on the plan at Annexure 'B' in accordance with the schedule of works in Schedule 3; and (d) revegetation and/or rehabilitation of the land in accordance with Schedule 4; (11) that the costs be reserved; (12) that the exhibits be returned; (13) liberty to the parties to apply on five days' notice for any further or other orders (including orders revoking, varying, supplementing or replacing these orders, in whole or in part, upon sufficient cause, such as, but not limited to, unforeseen or changed circumstances being shown); and (14) liberty to restore generally on five days' notice. 311In the 2011 proceedings (40062 of 2011), the Court orders that: (1) the summons be dismissed; (2) the costs be reserved; and (3) the exhibits be returned.

WC1

For the purposes of this Schedule, the "remedial works area" is defined as extending from the upstream extent of stored water behind the dam wall and downstream to the edge of the dam wall. Works
The works comprise: (1) remove earthworks that have been placed in the remedial works area in an appropriate manner which may include re-use on other parts of the property, such as areas that have been cut, if part of a management plan approved under the orders of the Court; (2) reinstate the former channel to match upstream and downstream channel profiles; (3) place appropriate topsoil over exposed banks and immediately stabilise using a biodegradable erosion control blanket; (4) revegetate all disturbed areas within the channel and banks using local provenance material appropriate to Western Sydney Dry Rainforest endangered ecological community ("EEC"). From the top of the bank to a distance of 10m from the top of each bank, all disturbed areas shall be revegetated with local provenance material appropriate to Cumberland Plain Woodland EEC; and (5) maintain the vegetation in accordance with an approved rehabilitation and revegetation management plan, that explicitly includes weed control. Consent
A suitably qualified expert is to prepare a creek rehabilitation and revegetation management plan incorporating the works and, prior to commencement of the works, consent shall be obtained from NOW pursuant to the WMA.

WC2 Works

The works comprise: (1) re-establish a defined channel bed and banks that includes features such as steps, pools, rock bars and riffles. The channel can be discontinuous from the point at which the dam tributary enters WC2; (2) there should be no additional fill imported to WC2 as part of the rehabilitation process; (3) there should be no vehicular or stock access to WC2 once rehabilitation works have been completed; (4) the management objective for the rehabilitated vegetation in WC2 is for it to ultimately represent the natural form and function of Western Sydney Dry Rainforest. Some active revegetation may be required in parts but it is believed that the natural resilience of the Western Sydney Dry Rainforest may be sufficient to return the vegetation to its pre-works condition along much of the disturbed reach of WC2. However, these areas and strategies are to be delineated in a site plan and closely monitored as part of a Vegetation Management and Rehabilitation Plan ("VMRP") and adaptive management strategies applied according to the outcomes observed. On-going weed control works will be required using low impact bush regeneration techniques as specified in the VMRP; and (5) all disturbed areas shall be stabilised using biodegradable erosion control blankets (for example, jute matting). Consent
A suitably qualified expert is to prepare a creek rehabilitation and revegetation management plan incorporating the works and, prior to commencement of the works, consent shall be obtained from NOW pursuant to the WMA.

Western Contour Fire Trail Location '2' Work

The works comprise: (1) design drawings for the stabilisation of pavement and batters to minimise erosion and to provide granular all weather surface to widths required under PFBP 2006, including passing bays, that are to be approved in writing by the council; and (2) works are to be carried out in accordance with the approved design, including implementation of: (a) effect road drainage at the WC1 crossing (for example, by culverts and/or causeway); (b) effective drainage control to assist in minimising ongoing erosion for the balance of the trail; (c) weed control in accordance with the approved VMRP contained in Schedule 2; and (d) revegetation in accordance with the VMRP contained in Schedule 2. Plan
A suitably qualified expert shall prepare a detailed sediment and erosion control plan that incorporates the works.

Rehabilitation

The principal components of the VMRP are: (1) definition of the management issues that are applicable or likely to be applicable; (2) identification of management zones across the site that have common features, outcomes or actions; (3) recognition of the natural resilience of the vegetation in the management zones; and (4) description of appropriate management responses in clear and easy to follow plans, using best practice, low impact techniques.
The management issues will include: (1) weed control; (2) riparian habitat protection, revegetation and rehabilitation; (3) threatened species and endangered ecological community habitat protection, revegetation and rehabilitation; (4) feral animal control; (5) fire - both control and establishment of an appropriate fire regime as a management tool; (6) grazing; (7) edge effects; (8) monitoring; and (9) adaptive management.
Fundamental to the plan is the identification of suitable offset areas to compensate for the loss of three hectares of Cumberland Plain Woodland EEC. This analysis will be guided by the methodology embodied in the Biobanking Assessment Methodology to achieve an "improve or maintain" outcome. Suitable vegetation types occur in large patches in the eastern part of the property to offset the permanent losses of Cumberland Plain Woodland, particularly in polygons classified as 7 (Native Woodland) and 4 (Exotic Forest) shown in "Attachment B" of the Joint Report on Ecology and River Systems Evelyns Range Road, The Oaks (the joint report of Mr Macleod, Ms Ashby, Dr Martens and Ms Stengl: Exhibit H).
These offset areas will be explicitly delineated on a site plan arising from the analysis and shall be managed in perpetuity as conservation and compensation areas.
Importantly, the VMRP must be guided by the Recovering Bushland on the Cumberland Plain: Best practice guidelines for the management and restoration of bushland (DECC, 2005) and the Approved Cumberland Plain Recovery Plan (DECCW, 2011) and comply with the checklist for Bush Regeneration Activities in the Habitat of Threatened Species, Endangered Populations and Endangered Ecological Communities (NSW National Parks and Wildlife Service, undated).
Appropriate actions must include: (1) regular sweeps across each management zone to identify major weed species; (2) species-appropriate best practice weed control responses formulated and implemented, with particular emphasis on noxious weeds; (3) collection of local seed or cuttings for propagation or fruiting bodies for self-seeding brush matting; (4) stabilisation of open soil on batters and in riparian zones using mulch, matting, dense plantings and spreading of seed for local provenance; (5) planting out of batters and nominated riparian zones - choice of species, structural diversity and densities appropriate to the habitat; (6) exclusion of stock from riparian zones and rehabilitation areas; (7) use of fauna-friendly fencing; (8) use of small scale ecological burns, as appropriate; and (9) monitoring of new weed incursions into bushland. Annexure 'A' Annexure 'B'

Amendments 19 September 2013 - Amended pursuant to slip rule Amended paragraphs: 310 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 September 2013

(2002) 121 LGERA 432

(2007) 151 LGERA 400

(2010) 173 LGERA 366

(2009) 172 LGERA 225

(2003) 125 LGERA 332

(2002) 120 LGERA 109

(2012) 190 LGERA 143

(1998) 101 LGERA 255

(2002) 121 LGERA 444

(2001) 130 LGERA 508

(1998) 103 LGERA 137

At a glance

Court

Decision date

Before

Source

Judgment (98 paragraphs)

Parties

Cases Cited (78)

Cited By (11)