Wollondilly Shire Council v Godfrey and Ors [2026] NSWLEC 21 | Case summary | Zoe

NSWNSWLEC

Wollondilly Shire Council v Godfrey and Ors

[2026] NSWLEC 21

Land and Environment Court (NSW)|2026-02-27|Before: Robson J

View on NSW Caselaw

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2026-02-27

Before

Robson J

Catchwords

ENVIRONMENT AND PLANNING — Civil enforcement — Interpretation
of development consents and conditions — Lapsing of
consent —
Permissible development — Declaratory and injunctive relief

Source

Original judgment source is linked above.

Catchwords

ENVIRONMENT AND PLANNING — Civil enforcement — Interpretationof development consents and conditions — Lapsing ofconsent —Permissible development — Declaratory and injunctive relief

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Wollondilly Shire Council v Godfrey and Ors [2026] NSWLEC 21

Hearing dates: 20 – 23 October 2025

Date of orders: 02 April 2026

Decision date: 27 February 2026

Jurisdiction: Class 4

Before: Robson J

Decision: See orders at [110] and [113]

Catchwords: ENVIRONMENT AND PLANNING — Civil enforcement — Interpretation of development consents and conditions — Lapsing of consent — Permissible development — Declaratory and injunctive relief

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), ss 4, 9.45, 9.46, former ss 80A, 95, 96
Protection of the Environment Operations Act 1997 (NSW), s 96
Uniform Civil Procedure Rules 2005 (NSW), rr 36.17, 42.1
Wollondilly Local Environment Plan 1991, cl 7
Wollondilly Local Environmental Plan 2011

Cases Cited: Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182
Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395
Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement) (2017) 96 NSWLR 434; [2017] NSWCA 263
Cando Management and Maintenance Pty Ltd v Cumberland Council [2019] NSWCA 26; (2019) 237 LGERA 128 Fagin v Australian Leisure and Hospitality Group Pty Ltd [2018] NSWCA 273 J.K. Williams Staff Pty Limited v Sydney Water Corporation [2021] NSWLEC 23; (2021) 249 LGERA 109 James Godfrey v Wollondilly Shire Council [2007] NSWLEC 33; (2007) 151 LGERA 207 K & M Prodanovski Pty Ltd v Wollongong City Council [2013] NSWCA 202; (2013) 195 LGERA 23 Sharp v Hunters Hill Council [2002] NSWLEC 27; (2002) 120 LGERA 155 Sunland Group Limited v Gold Coast City Council (2021) 274 CLR 325; [2021] HCA 35 The Owners - Strata Plan No. 4983 v Canny [2018] NSWCA 275; (2018) 233 LGERA 432 Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74; [2017] 1 All ER 307 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Wollondilly Shire Council v Godfrey (No 2) [2026] NSWLEC 34

On 8 June 1994, Mr Godfrey lodged a development application with Council (being development application 179/94) which sought consent for the construction of a “Dwelling & Shed for storage of earthmoving equipment”.
On 11 August 1994, Council granted development consent 179/94 to Mr Godfrey for the construction of a “Dwelling & Shed for storage of earthmoving equipment” subject to conditions (‘D179/94’). A condition of the consent was that the development was to be carried out “substantially in accordance with” plans dated 8 June 1994. The plans provided for a shed approximately 24m x 15m x 6.5m (high). The development application and Council’s internal reporting provided for the shed to be used for “storage of earth moving equipment”. A condition of consent specifically provided that storage of tanks and servicing of vehicles was to be conducted “within the building”. In accordance with D179/94, Mr Godfrey thereafter constructed a dwelling and a shed on the Land.
On 28 January 1997, Mr Godfrey lodged a development application with Council (being development application 70/97) which sought consent for the development of a “Sand & Soil Yard”. The development application stated that, inter alia, first, the development would operate six days a week and eight hours per day; second, no plant and machinery was to be installed; and third, approximately 100 tonnes of various landscape and garden supplies would be stored, made or transported. The estimated cost of the proposal was $2,000.
On 18 August 1997, Council granted development consent 70/97 to Mr Godfrey for use of the Land for a “Wholesale Sand & Soil Yard” subject to conditions (‘D70/97’) relevantly including:
Condition 2.3, which required three sealed truck parking spaces to be detailed in a plan to be submitted to Council prior to the commencement of works;
Condition 4.1, which required engineering design plans for the proposed car parking area, loading area, accesses and stormwater drainage to be submitted to, and approved by, Council prior to the commencement of construction;
Condition 5.1, which required a soil and water management plan to be submitted to, and approved by, Council;
Condition 6.1, which required the details of any proposed security fencing to be submitted to Council prior to the commencement of works;
Condition 7.2, which required a detailed landscape plan to be submitted to Council prior to the commencement of works;
Condition 8.3, which stated: “The use being conducted between the hours of 7.30 am and 3.30 pm Mondays to Fridays inclusive, and between 8.00 am and 4.00 pm Saturdays. The industry is not to be conducted on Sundays and Public Holidays”; and
Condition 11.1, which required the details of the storage and disposal of trade waste to be provided to Council with the commencement of works.
It is convenient to note that Council maintains that although Mr Godfrey commenced using part of the Land as a sand and soil yard, he did not comply with any of the above conditions of consent, and, although he has continued to use the Land as a sand and soil yard since at least 1997, Council’s primary position is that D70/97 has lapsed. Alternatively, Council maintains that Mr Godfrey’s ongoing and present use of the Land for that purpose has not been in accordance with either the approved plans or the above-noted conditions imposed under D70/97.
The plan approved under D70/97 showing “Proposed Sand & Soil Bays to hold Landscaping Supplies” is annexure “A” to this judgment.
On 4 February 2000, Mr Godfrey lodged a development application with Council (being development application 144/00) which sought consent for the development of a “Retail Landscape & Nursery Supplies” including a “colour bond” building described as an “office and storage shed”.
On 29 June 2000, Council granted development consent 144/00 to Mr Godfrey for use of the Land as a “Retail Plant Nursery” (which was modified by Council on 18 October 2001 to include a 3m x 3m mezzanine level in part of the “storage shed”) subject to conditions (‘D144/00’) relevantly including:
Condition 1.3, which provided: “This consent does not permit the retailing (other than in a minor nature) of landscaping supply materials (eg. sand, soil, mulches, etc.)”;
Condition 2.3, which provided: “The activity shall be limited to between the hours of 7.30am and 5.00pm Mondays to Fridays inclusive, and between 8.00am and 12 noon Saturdays, Sundays and public holidays”; and
Condition 2.4, which provided: “The business being conducted in such a manner so as not to interfere unreasonably with the amenity of the neighbourhood by reason of the emission of discharge of noise, sediment, waste water or waste products”.
One of the approved plans under D144/00 showing the location of the “Proposed Shed/Office” and “Sand & Soil Bays” is annexure “B” to this judgment.
Various activities described later in this judgment undertaken on the Land since at least 2004 have caused impacts from noise, dust, and vibration on two neighbouring rural residential properties owned by Mr and Mrs Walker (who live on a property adjoining the western boundary of the Land), and Mr and Mrs Kalpaxis (who live on a property adjoining the southwestern boundary of the Land).
In 2005, Council, having received numerous complaints in relation to intrusive noise as well as dust and vibration emanating from the Land and raising concerns that operations on the Land were being conducted outside any approved uses including well outside any approved hours of operation, issued a “Direction to Take Preventive Action” pursuant to s 96 of the Protection of the Environment Operations Act 1997 (NSW) (‘Direction’) to Mr Godfrey. This gave rise to disputes between Council and Mr Godfrey in relation to both the scope of operations that were being undertaken on the Land and, whether those operations had been approved under D179/94, D70/97 and/or D144/00. As Mr Godfrey failed to take remedial action specified in the Direction, Council commenced Class 4 civil enforcement proceedings against Mr Godfrey seeking orders requiring compliance with the Direction (‘2005 Class 4 proceedings’).
On 10 October 2005, Mr Godfrey, apparently to address concerns expressed in relation to the manner and lawfulness of operations being conducted on the Land, lodged a fresh development application with Council (being development application 884-05) which sought consent for various uses on the Land including for “a rural industry, extension to an existing building and new shed, construction of silt ponds, underground fuel tank, formalising primary product stockpiles and ancillary activities”. Upon Council’s refusal on 9 August 2006 of development application 884-05, Mr Godfrey commenced a Class 1 appeal in this Court against that refusal (‘Class 1 proceedings’) which proceeded to hearing before Jagot J in December 2006.
On 15 September 2006, Council commenced further Class 4 civil enforcement proceedings against Mr Godfrey and his then related companies, seeking relief including, first, declarations that Mr Godfrey (and related companies) had breached the E**nvironmental P**lanning and A**ssessment Act 1979 (NSW) (‘EPA Act’); second, declarations that D179/94, D70/97 and D144/00 had each lapsed and were of no effect; and third, injunctive relief restraining various activities on the Land (‘2006 Class 4 proceedings’).
On 20 September 2006, in the 2006 Class 4 proceedings, Mr Godfrey and his then related companies gave an undertaking (“until further or other order”) to the Court in relation to the conduct of various activities on the Land (‘Undertaking’), including that the Land would not be used for, first, the conduct of a retail plant nursery otherwise than during the hours permitted by D144/00; second, the conduct of a wholesale sand and soil yard otherwise than during the hours permitted by D70/97; and third, that other operations would not be conducted on the Land between certain hours.
Development application 884-05 was amended during the hearing in December 2006 before Jagot J and as recorded by her Honour, ultimately sought development consent for the following activities:
The storage, servicing, maintenance and repair of vehicles, plant and equipment proposed to be limited to nominated classes (with maximum numbers and weights identified) with the servicing, maintenance and repair activities to be carried out wholly within the existing shed on the western boundary of the Land. An enclosed truck wash area adjacent to the existing shed was proposed, as well as a new adjoining shed for storage (both to be subject to acoustical treatment). This was submitted (to Jagot J) to be development for the purposes of an “earthmoving establishment” (a defined term in the WLEP 1991).
The stockpiling of nominated primary products in designated areas (both in bins and loose stockpiles) for the purpose of wholesale to builders and tradespeople. It was proposed that buyers would drive their vehicle to the relevant stockpile or bin where it would be loaded using a front-end loader. This was submitted to be development for the purposes of a “rural industry”, a defined term in the Environmental Planning and Assessment Model Provisions 1980 (‘Model Provisions 1980’), adopted in the WLEP 1991.
The use of the existing shed on the northern boundary such that 300m² of the shed was to be occupied by indoor plants and aquatic plants in pots available for retail sale with the balance of the area of that shed to be used for the retail sale of sand, soil and related products. This was submitted to be development for the purposes of a “retail plant nursery”, a defined term in the Model Provisions 1980, adopted in the WLEP 1991.
The decommissioning of an existing above ground and an underground fuel tank and bowser to be replaced by a new underground fuel tank and bowser in an area identified on plans as part of the “earthmoving establishment”.
Two sediment control ponds (one with a capacity of 600m² and the other of 400m²) on the eastern boundary, located 40m and 50m respectively from the bank of Pack Gully Creek.
Ancillary parking, water tanks, septic tanks, sediment control fences, acoustical walls, and acoustical treatment of existing and proposed sheds was to be provided.
The southernmost part of the Land was proposed to be an “exclusion zone”.
On 30 January 2007, Jagot J delivered judgment in the Class 1 proceedings: James Godfrey v Wollondilly Shire Council [2007] NSWLEC 33; (2007) 151 LGERA 207 (‘Class 1 judgment’), and on 24 May 2007, her Honour found, contrary to Council’s contentions that aspects of the proposal were prohibited, that the various components of the proposal fell within three permissible uses (noted above at [24(1)-(3)]), and made orders granting deferred development consent 884-05 (‘D884-05’) for the use of the Land (including six deferred commencement conditions) for: “earthmoving establishment”; “retail plant nursery”; and “rural industry” (confined to wholesale sand and soil supply being limited to the handling, storage and distribution (but not processing) of sand and soil products). D884-05 also provided (subject to certain conditions) for the continued use of one underground fuel tank and the removal/decommissioning of all other existing unauthorised fuel tanks and bowser; the provision of sediment and erosion control works; the construction of two sediment control ponds; and filling of land and construction of noise barriers including mounds and fences.
Apart from extensive conditions (including six deferred commencement conditions), Jagot J imposed a condition requiring the surrender of each of D179/94, D70/97 and D144/00. A further condition required that the approved development be carried out in accordance with various endorsed plans including drawing “DWG No. 05171G” which provided for specified activities to be confined to discrete areas of the Land as well as the implementation of significant ameliorative measures including through the designation of a substantial area in the western portion of the Land as an “exclusion zone”. Further measures included the construction of an acoustical wall (between 2m and 2.2m in height) on the western boundary and a further 6m acoustical barrier (comprising an earth berm 4m high along with a 2m high acoustical wall on top) extending over 50m, both of which (as Jagot J noted in the Class 1 judgment at [55]) had been “designed to respond appropriately to the context of the site and its adjoining rural residential neighbours”. The earth berm was designed to present as a natural feature dividing the Land between operational and natural areas.
Subsequent to the Court granting D884-05 in May 2007, Council discontinued both the 2005 Class 4 proceedings and the 2006 Class 4 proceedings.
As considered later in this judgment, between October 2009 and April 2024, Council’s compliance officers carried out numerous inspections of the Land and observed various activities and structures on the Land which Council maintains were either not permitted under the zoning or, if permitted, were neither approved nor being conducted in accordance with any of the development consents referred to above. Although many of the activities had been continued and expanded on the Land, many, if not all, of the conditions imposed (particularly those noted at [13] above in relation to D70/97 and the ameliorative (and other) conditions imposed under D884-05 had not been complied with.
The present proceedings were commenced on 29 January 2024.
It is relevant to note that at the hearing before me which commenced on 20 October 2025, the respondents (despite previously denying in their amended points of defence filed 27 November 2024 that Council’s claim that D884-05 had lapsed by reason, at least, of failure to comply with certain deferred commencement conditions) did not contest Council’s position that D884-05 (granted by Jagot J on 24 May 2007) had lapsed and is no longer operative, and, as such, the issue earlier raised by Council as to whether that (deferred) development consent had ever commenced (or whether it commenced and had lapsed) no longer arises. Consequently, at the hearing the respondents maintained that the operations conducted on the Land were in accordance with D179/94, D70/97 and D144/00.
In summary, Council seeks the following quadripartite declaratory relief: first, that D179/94 did not authorise the use of the Land for various uses, and that each of D144/00 and D884-05 has lapsed; second, that certain development which is prohibited under the WLEP 2011 has been undertaken on the Land by the respondents; third, that the respondents are undertaking either prohibited development and/or permissible development without a development consent under the WLEP 2011; and fourth, that the respondents are using the Land in a manner which was not authorised under any of D179/94, D70/97 and D144/00. Council also seeks discrete injunctive relief.

In summary, Mr Savage gave evidence as to Council’s records including historical material relating to the various relevant development consents and approvals, detailed correspondence between Council and Mr Godfrey over a number of years, and his various inspections and observations of works and activities undertaken on the Land as follows:
On 27 October 2006, he attended the Land and observed 20 pot plants for sale as well as various other landscaping supplies including potting mix and soil.
On 14 October 2009, he attended the Land and observed that, first, a number of shipping containers and other materials had been placed on the Land; second, an open wash bay area had been constructed adjacent to an earlier approved shed; and third, two areas of the Land had been landfilled and were being used for storing various vehicles including trucks, vehicles and machines.
On 5 January 2010, he attended the Land and observed that, first, further items had been placed on the Land including two more shipping containers, large truck tyres, plastic pipes, a stockpile of asphalt, various excavator buckets, large stockpiles of cut firewood and other materials; and second, an acoustic earth mound required by D884-05 had not been constructed.
On 28 August 2019, he attended the Land and observed that a large above-ground diesel fuel tank had been installed in an area that was not bunded, a shed that had been previously approved was being used for the maintenance of heavy vehicles and machinery, an open wash bay area had been constructed on the southern side of the approved shed and further large items were being stored on the Land including large machinery tyres, 44-gallon drums, concreting tools, cylinder tanks, storage bins and other miscellaneous items. He also observed that 10 shipping containers had been placed on the Land which were being used for the storage of various items including timber and aluminium mouldings, and that various vehicles were parked in various areas on the Land including two caravans, a number of trucks, a forklift, various trailers and assorted machinery. He also observed that further areas had been landfilled, as well as large stockpiles of various materials including ballast, crushed sandstone, recycled concrete, and blue metal dust.
On 8 January 2021 and 9 February 2022, he attended the Land (with Mr Godfrey present) and on each occasion conducted a site audit of the various activities being undertaken on the Land. He recorded various changes in those activities and operations from his earlier attendances. On each occasion he observed that a large aluminium garage measuring approximately 12m x 8m had been constructed and that the large above-ground diesel fuel tank remained in the same location. He also observed a larger number of shipping containers which were being used to store various mechanical items and he observed other items deposited on the Land including caravans, various vehicles, machinery, earthmoving equipment, large machinery tyres, and a raised earth and concrete loading dock which was being used for the parking of heavy vehicles and earthmoving equipment. He observed the use of a large “screening machine” had commenced and that additional material storage bays had been constructed.
On 16 January 2023, he attended the Land (with Mr Godfrey present) and observed an “open fronted garage” measuring 9m x 10m was positioned on a concrete slab. He also observed the storage of shipping containers, concrete pipes, truck tyres, rims, broken down equipment, forklifts, road barriers, temporary fencing, oil drums, timber formwork, metal and other items, in addition to 50 excavator attachments, trucks, low load trailers, and the above ground fuel tank observed earlier remained on the Land.
On 1 September 2023, he attended the Land and observed that a new “shipping container shelter” had been constructed and a number of the caravans previously observed had been removed from the Land; that a further structure comprising two shipping containers positioned 18m apart which were connected by a large metal frame arch (which was covered in a waterproof fabric) had been constructed; and that further earthworks had been carried out in the north-eastern area of the Land.
On 30 April 2024, he observed that the material storage bays previously observed had been extended with the construction of a new concrete “hardstand area” which measured approximately 40m x 18m and that five new material storage bays had been constructed on the new hardstand area (each bin measuring 9.7m deep, 8m wide and 2.3m high) which were being used to store topsoil, crushed grey metal and crushed rocks. He also observed that a sedimentation basin and drainage channels had been constructed near the north-eastern corner of the Land (and lined with sandstone rock), and that a spillway had been constructed to the south of the basin using concrete blocks. He observed that the screening machine was now surrounded by six stockpiles of soil material, and that approximately 50 excavator buckets and implements for earthmoving were stored on the Land. He observed that a further sedimentation basin and concrete-block spillway had also been constructed in the south-eastern corner of the Land, and that vegetation had been removed to construct the sedimentation basin.
During each of the attendances noted above, Mr Savage took photographs and recorded his observations in detailed file notes. Annexed to this judgment and marked “C” are two aerial photographs in a document (referred to in the evidence as an “Aide Memoire” which became “Ex K”) which, as will be further considered later in this judgment, identify various areas and activities and works referred to in the evidence of both Mr Savage and Mr Godfrey.
Mrs Walker gave evidence of her concerns and complaints to Council arising from the conduct of operations on the Land over a number of years and detailed the amenity impacts on her property. She deposed that the noise levels from operations on the Land have been significant since as early as 2005 and she deposed to three videos which she had prepared recording various activities on the Land near her property and recording sound. These videos were played at the hearing. She deposed that since November 2021, she had observed that over recent years part of the Land close to her boundary (being within the area variously referred to as the “exclusion zone” in the earlier material before Jagot J) had been increasingly used as a storage, maintenance and processing area for material and equipment. She deposed that activities in that area, and on the Land generally, were occurring “at any time of the day, night or early morning hours, seven days a week”. She also deposed that between November 2023 and February 2024, she could hear the sound of “excavation works” on most evenings including Saturdays and Sundays. She particularly recognised noise from the screening machine on the Land (which she referred to as the “shaker/sorter”).
Mrs Walker deposed that she continues to hear noise emanating from the Land between 6.00pm and 5.30am “seven (7) days a week”, including the sound of trucks entering the Land, various alarms, beepers and air brakes, truck engines, blasting of horns, screeching of steel against steel, and excavators and earthmoving equipment being loaded onto and off trucks.
Mr Raymond gave expert evidence that in April and May 2024, he undertook “unattended noise monitoring” using a noise logger which recorded various noise events generated by operations on the Land during the early morning and night-time periods. He recorded multiple noise events which he identified as truck and heavy vehicle movements and the use of machinery on the Land which exceeded both the night-time criteria (including sleep disturbance thresholds) and the daytime criteria under the NSW Environment Protection Authority, Noise Policy for Industry, (October 2017) (‘NPFI’) (formerly the Environment Protection Authority, NSW Industrial Noise Policy, (2000)), which he states implies that the activities on the Land are exceeding the applicable noise criteria. The noise was recorded variously between 10.00pm and 2.45am and, on another occasion, between 4.00am and 4.30am. Mr Raymond also prepared a joint expert report with Mr Tsevrementzis and gave concurrent oral evidence noted later in this judgment.

In summary, Mr Godfrey gave the following evidence:
PSS now carries on business from the Land which involves selling various soils, sands and related products, and is a business which he commenced in 1994 and has continued since that time. He explained that the large shed on the Land includes an office in which the “sand and soil” business is carried on and there are open bins and loose stockpiles of materials outside that area and on other parts of the Land which contain various products to be sold including sands, soils, gravel, blue metal, mulch, bark and other similar materials.
In order to operate PSS’s business on the Land, equipment including front-end loaders, trucks and bobcats is required. Vehicles attending the Land are loaded and unloaded during business hours and trucks are used for the delivery of materials to customers and to bring stocks of materials to be stored on the Land for sale.
ECC carries on a separate business on the Land involving the carrying out of earthmoving, roadmaking and civil engineering works for builders which is undertaken at other locations.
Before the house and shed (which were approved pursuant to D179/94) were constructed, he used his own earthmoving equipment to grade and seal the area of entry to the Land. He deposed to photographs showing the dwelling under construction with a sealed accessway.
In relation to the many complaints that have been made over a long period of time by Mrs Walker (and others), he pointed to the varying types of development surrounding the Land. He explained that the screening machine, which had been the subject of various complaints in relation to noise, had more recently stopped (or reduced) working in the area near Mrs Walker’s property.
He confirmed that D70/97, D179/94 and D144/00 had not been surrendered as had been required under the conditions of D884-05 (on legal advice), and he considers that each is “still in force”.
On or about 13 October 2025, a new development application for development of the Land was lodged with Council by Darryl Warry, a town planner, on behalf of Mr Godfrey (Tcpt, 21 October 2025, pp 117(50), 118(1-16)). Mr Warry has acted for Mr Godfrey for over 20 years and has frequently corresponded with Council on behalf of the respondents. Council had returned the development application.
In cross-examination, he confirmed the presence of the following structures and works on the Land which are depicted (and labelled) in the aerial photograph at annexure “C” to this judgment (in evidence, Ex K):

(a) The “Shed” approved under D179/94, which he said is used as an indoor workshop but not for spray painting; (b) The construction of the building described as “Garage”, for which he had not applied to Council for development consent; (c) The structure and works described as “Wash Bay Area” (with a domed white structure), for which he had not applied to Council for development consent; (d) The structure described as “Formwork and Outdoor Workshop”, for which he had not applied to Council for development consent to construct; (e) Trucks and other large equipment parked (or placed) in the southern area of the Land, which was being used for a range of activities (including the deposition of trucks); (f) The structure described as “Sedimentation Basin with 1 concrete spillway”, which had been constructed without development consent; (g) The structure described as “Sedimentation Basin with 2 drainage channels”, each of which had been constructed without development consent; (h) The structures described as “New Material Bins”, which he said had earlier been constructed on that part of the Land but had been subsequently refurbished; (i) The structure described as “Hardstand Area”, which he said had been constructed on that part of the Land for 20 years but which he had not applied to Council for consent to construct; (j) The structure and equipment described as “Screening Machine”, which he said is used to “process” product; (k) The structure described as “Fuel Tank” (which he said was “double-skinned”), which was being used for fuelling vehicles on both sides of the Fuel Tank, all of which is not bunded; (l) The area marked in green (on p 2 of annexure “C” to this judgment) shows a variety of parked vehicles (including trailers and trucks) with some adjacent to Mrs Walker’s boundary – some of which have been moved since the date of the aerial photograph; (m) The area marked blue (on p 2 of annexure “C” to this judgment) represents the location of the fuel tank and a truck parking and circulation area; and (n) The area marked yellow (on p 2 of annexure “C” to this judgment) represents the part of the Land used for a sand and soil yard.

In summary, Council submits that the declarations and orders it seeks should be granted for the following reasons:
The zoning of the Land at the relevant times (being Rural A3 from 1991 to 22 February 2011 and RU2 since 23 February 2011) provides that only “Agriculture (other than intensive livestock keeping establishments)” in the Rural A3 zone (under the WLEP 1991), and “Extensive agriculture” (as defined in the Dictionary of the WLEP 2011) and “Home occupations” in the RU2 zone (under the WLEP 2011), are permissible without consent. As such, the various uses of the Land which the respondents continue to undertake are permissible only with development consent, and Council maintains that the respondents do not have such consent.
In relation to the development consents which may be applicable, only D179/94 continues to apply to the Land (as Mr Godfrey acted upon it). D179/94 only permits the storage of earthmoving equipment within the approved shed constructed on the Land and does not permit the use of any other part of the Land for the storage of earthmoving equipment or earthmoving vehicles.
Each of the other three development consents, D70/97, D144/00 and (as now conceded by the respondents) D884-05, has lapsed. D70/97 lapsed on about 19 August 2002 (being five years after it was granted) pursuant to s 95(4) of the EPA Act, because Mr Godfrey never lawfully acted upon it as the work he carried out to establish the soil and sand yard development failed to comply with the conditions imposed under D70/97 (in particular, the work to be undertaken, and the materials including the plans and documents required to be submitted to Council by the conditions noted at [13] above were not submitted).
D144/00 lapsed on about 30 June 2005 (being five years after it was granted) pursuant to s 95(4) of the EPA Act, because Mr Godfrey never lawfully acted upon it as he failed to commence the permitted use of the Land as a “retail plant nursery” (contrary to cl 7 of the WLEP 1991 which adopted definitions from the Model Provisions 1980 which defined “retail plant nursery” as “building or place used for both the growing and retail selling of plants…”). Further, Council’s evidence shows that there were no plants being grown as required by D144/00 and that only about 20 pot plants were offered for sale (noted in Mr Savage’s evidence at [36(1)] above).
Council’s evidence, in particular the evidence of Mr Savage of his detailed observations of the Land over a number of years, demonstrates that the respondents have carried out, and continue to carry out, various unlawful developments on the Land in breach of the EPA Act, including using the Land for the purposes of the following (as defined in the WLEP 2011): a “truck depot” (including the use of the above-ground fuel tank and fuel bowser, which is prohibited under the WLEP 2011); a “commercial premises” (by reason of its use as a vehicle sales or hire premises which is prohibited under the WLEP 2011); a “waste disposal facility” (which is prohibited under the WLEP 2011); and “landscaping material supplies” which although permitted with development consent under the WLEP 2011, the respondents have not obtained such consent.
The respondents have also constructed (and continue to use) various structures on the Land without obtaining development consent under the WLEP 2011, being: a wash bay area; the vehicle service area adjoining the wash bay area; an aluminium garage building; a screening machine; the hardstand area and concrete material storage bins; a sedimentation basin with two drainage channels; and a sedimentation basin with one concrete spillway.
Apart from the above matters, and in addition thereto, the respondents have used (and continue to use) the Land in breach of D179/94 (which Council maintains is the only enduring consent) by reason of:

D70/97 and D144/00 have not lapsed as each consent was lawfully commenced. In respect of D70/97 (for a “Wholesale Sand & Soil Yard”), the various conditions highlighted by Council as not having been complied with (being conditions 2.3, 4.1, 5.1, 6.1, 7.2 and 11.1) were all requirements for plans to be “submitted” (and in some cases, “approved”) before works were commenced and were not prohibitions which could forestall the use of the Land itself as a sand and soil yard selling wholesale products (which occurred from August 1997 after the issue of D70/97). That use constituted a lawful commencement of the consent, and D70/97 could not thereafter lapse. As there is no evidence of unauthorised works being carried out on the Land before D70/97 lawfully commenced, lawful use of the Land as a wholesale sand and soil yard did not “require” the construction of anything on the Land that was not lawful before D70/97.
In respect of D144/00, the consent (for a “Retail Plant Nursery”) is operative as it cannot be contended that the consent for construction of the “shed/office” lapsed, because the shed/office was constructed and occupied and relevant businesses conducted therefrom. D144/00 had two components: first, approval was sought for use for the activity of “Retail Landscape & Nursery Supplies”; and second, construction of the “office & storage shed”. The development application did not seek approval which restricted the use of the Land to any particular part (for example, the proposed shed/office), and therefore it should be read as seeking consent to use the whole of the Land for the designated use as a retail plant nursery. Mr Godfrey applied for, and received, a construction certificate from Council in August 2000 for the shed/office. Further, Council allowed a modification under s 96 of the EPA Act to D144/00 in August 2001 to allow a mezzanine level within the shed/office.
Council’s submission that either D70/97 or D144/00 had lapsed by 2006 directly conflicts with the Undertaking given on 20 September 2006 by the respondents to the Court requiring them to conduct the businesses of the retail plant nursery and the wholesale sand and soil yard as “permitted” by D144/00 and D70/97 respectively, within specified hours.
Overall, Council has not established on the evidence that there have been breaches of any kind of the three operative consents.
The fact that a very recent development application has been made to Council to regularise some works on the Land which includes details of a design for an acoustic barrier, would mitigate against the Court making any declarations or orders as sought by Council. In the alternative, if the Court was minded to grant any relief, the respondents submit that any such relief would be confined to established breaches of identified conditions and, possibly, removal of some structures such as the above ground fuel tank, associated bowser, and the covered workshop area (which, in any event, is submitted to be a “temporary structure”).

Given the respondents’ concession at the hearing in relation to D884-05 (noted at [30] above), the remaining issues, which overlap, are, first, the nature and extent of permissible use of the Land under D179/94; second, whether D70/97 and D144/00 have lapsed and are no longer operative, and if they remain operative, the scope of the development approved under each consent; third, whether various of the respondents’ activities and conduct on the Land are unlawful; and fourth, if applicable, the nature and extent of any relief that should be granted by the Court.
Before considering the parties’ positions, and as a supplement to the background noted above, it is appropriate to record in some detail a number of my primary factual findings in relation to the works and operations that have been, and are being, conducted on the Land over the past 20 or so years. The legal consequences of these (and other) findings will be dealt with later in this judgment. My findings are based upon Council’s extensive evidence including the detailed records produced by Council, Mr Savage’s mostly uncontested evidence (which includes photographic and other contemporaneous records) noted earlier in this judgment, and the historical aerial photography in the evidence of Ms Mills and Mr Ephron which captures the changes in activities carried out on the Land as well as the various structures constructed on the Land between February 2010 and September 2025.
For convenience and given the interrelationship between various operations and activities undertaken on the Land, I adopt the various descriptors of areas and structures and the coloured highlighting of certain areas on the two aerial photographs being annexure “C” to this judgment. I will make further findings in relation to these activities later in this judgment after considering the parties’ submissions, and the legislative background and principles which apply in determining whether D70/97 and D144/00 have lapsed, before outlining the principles applicable to the construction of development consents and considering the remaining issues including any appropriate relief.
Mr Godfrey, since about 1994 (and PSS, since 29 June 2012, and ECC, since December 2019), used the various areas and undertaken works as marked on annexure “C” to this judgment, including the indoor workshop and the extensive areas around that workshop for the repair, maintenance, servicing, washing and parking of motor vehicles and earthmoving equipment. Motor vehicles and earthmoving equipment, and other commercial and/or industrial implements have also been increasingly placed or parked in the southern part of the Land. The works undertaken and structures built have been mostly constructed outside the 24m x 16m “Shed for Storage” provided for in D179/94.
Since about 18 August 1997, Mr Godfrey, and since about June 2012, PSS, and since about 13 December 2019, ECC, have constructed buildings and/or carried out works and undertaken activities on the Land in purported reliance upon D70/97 including the construction of materials and soil bins, the carrying out of works to create stockpiles, parking areas and vehicle manoeuvring areas. Leaving aside Council’s contention that D70/97 has lapsed, the evidence, in particular the detailed photography, shows that the bins and soil bays presently constructed on the Land are in excess of those otherwise provided for in the approved plans under D70/97 (depicted on annexure “A” to this judgment) and again, irrespective of the question of lapse, I find that there has been no compliance with any of the conditions noted at [13] above.
Since the grant of D144/00 on 29 June 2000, while the Land was used for the retail selling of plants for some short time, Mr Godfrey stated that he ceased to conduct a retail plant nursery on the Land between “5 and 10 years” ago. In any event, the plans attached to D144/00 (annexure “B” to this judgment) depict rudimentary “Sand & Soil Bays” and the consent was subject to Condition 1.3 which does not permit the retailing (other than in a “minor nature”) of landscaping supply materials (being “e.g. sand, soil and mulches, etc.”). I find that the consent was for a modest operation much less than the activities now undertaken on the Land. The sand and soil bays that have been constructed (and the large stockpiles) are much larger and cover a greater area than those depicted in the approved plans.
Since about 1994, Mr Godfrey, and since about 29 June 2012, PSS, and since about 13 December 2019, ECC, on dates unknown, have used the Land or have caused or permitted the Land to be used for the emplacement of extensive landfill comprised of material including excavated soil, rock, clay, road base, concrete and blue metal dust. Large stockpiles of material have been created on the Land. The area where those materials are placed is highlighted in yellow on p 2 of annexure “C” to this judgment (and is visible in the detailed photographs in evidence). The photography exhibited to Mr Savage’s affidavits and the aerial photography attached to the affidavits of Ms Mills and Mr Ephron (in particular the 27 aerial photographs taken at mostly regular intervals between 10 February 2010 and 24 June 2024 in Mr Ephron’s affidavit and the six aerial photographs taken between 5 October 1990 and 20 December 2005 in Ms Mills’ affidavit) clearly depict the expanding nature of the operations being conducted.
I find that the evidence clearly establishes that since about 2000, Mr Godfrey, and since about 29 June 2012, PSS, and since about 13 December 2019, ECC, have used the Land for various purposes including storage, stationing, dismantling and salvaging a variety of plant, equipment and materials including shipping containers, concrete pipes, concrete culverts, construction signs, plastic barriers, fencing, tyres, 44-gallon drums, building materials, vehicle parts, scrap metal, metal drums and posts. Those items are stored, stationed, dismantled, and salvaged in the area highlighted in green on p 2 of annexure “C” to this judgment.
It is clear that development application 884-05 (as considered in detail by Jagot J in the Class 1 judgment at [6]) sought consent for a number of activities and operations (noted at [24] above) not dissimilar to those presently being operated in circumstances where it is now common ground that, irrespective of other issues, D884-05 is not operative.

The onus of proof in establishing that a development consent has not lapsed is borne by the party seeking to uphold the validity of the consent: Cando Management and Maintenance Pty Ltd v Cumberland Council [2019] NSWCA 26; (2019) 237 LGERA 128 at [96].
Subsections 95(4) and (5) are mutually exclusive: Sharp v Hunters Hill Council [2002] NSWLEC 27; (2002) 120 LGERA 155 (‘Sharp’) at [41]. As such, it is necessary to characterise the development the subject of D70/97 and D144/00 to determine whether s 95(4) or s 95(5) applies.
The more obvious and natural operation of s 95(5) is in respect of a development consent for the carrying out of development being the “use of land” (per par (a) of the definition of “development” in the then s 4(1) (now s 1.5(1)(a)) of the EPA Act): Sharp at [42].
The development is defined and described by the instrument constituting the consent, which ordinarily includes conditions imposed under s 80A (now s 4.17) of the EPA Act. Those conditions may specify or regulate the manner and sequence of performance of the development: K & M Prodanovski Pty Ltd v Wollongong City Council [2013] NSWCA 202; (2013) 195 LGERA 23 at [15] (‘Prodanovski’); Fagin v Australian Leisure and Hospitality Group Pty Ltd [2018] NSWCA 273 (‘Fagin’) at [17], [18].
Under s 95(4) of the EPA Act, the activity which prevents the development consent from lapsing is the physical commencement of “building, engineering or construction work”, while under s 95(5), that activity is the “use of any land, building or work”. In each case, there must be a connection between that activity and the subject matter of the consent: Fagin at [24]. In particular, under s 95(5) the “use” must be of “any land, building or work” that is “the subject” of a consent which is for development “other than that referred to in” s 95(4).
Although not without some concern, in the factual circumstances noted earlier in this judgment and for the reasons that follow, I do not accept Council’s submissions that D70/97 and D144/00 have lapsed pursuant to s 95(4) of the EPA Act.
Considering their terms and conditions, I find that each of D70/97 and D144/00 is a development consent that falls within s 95(5) of the EPA Act because the use of the Land as a wholesale sand and soil yard (in the case of D70/97) and as a retail plant nursery (in the case of D144/00) does not involve any “building, subdivision or work”, development under s 95(4) which could form the subject of either consent. Both D70/97 and D144/00 were granted for carrying out development being the use of land for the approved use: Sharp at [42].
In respect of D70/97, the use of the Land as a wholesale sand and soil yard had “actually commenced” since at least August 1997 (which is before 18 August 2002, the date on which the consent would otherwise have lapsed) pursuant to s 95(5) of the EPA Act. Although again not without concern, particularly noting the commentary of Meagher JA in Prodanovski at [15], I accept the respondents’ submission that the use of the Land itself constituted commencement of D70/97 because the conditions highlighted by Council (noted at [45(3)]) were requirements for plans to be submitted and/or approved which did not prevent that use of the Land. Despite this, as will be seen, I consider that there is (and has been) ongoing non-compliance with D70/97.
In respect of D144/00, again not without some concern, I find that the use of the Land as a retail plant nursery had “actually commenced” before 29 June 2005 (the date on which the consent would otherwise have lapsed) pursuant to s 95(5) of the EPA Act. I again accept the respondents’ submission, and I find that the use of the Land for the activity of “Retail Landscape & Nursery Supplies” and for the construction of the office and storage shed commenced lawfully under D144/00 in 2000. This (and my finding above in relation to D70/97) is supported by Council’s historical file notes prepared by Mr Savage, in particular his file note of 14 October 2009 which, although noting that “some detail as required by [D144/00] remains outstanding”, states that the area was “in general conformity” with the approved plan. Similar commentary appears in correspondence dated 26 February 2021 from Council’s solicitors to Mr Godfrey. Despite this, I accept the evidence of Mr Godfrey and find that the use of the Land as a retail plant nursery has not been conducted for over 5 to 10 years.
Having found that D70/97 and D144/00 have not lapsed under s 95 of the EPA Act as they were lawfully commenced, the question arises as to the scope of operation of each of D70/97, D179/94 and D144/00 respectively, and whether the respondents have complied with the plans approved, and the conditions imposed, by Council.
In relation to my consideration of each of D70/97, D179/94 and D144/00, the principles applicable to the construction of development consents are well-known and have been considered extensively: Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 (‘Allandale Blue Metal’) at [42]-[48]; Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd *(*subject to Deed of Company Arrangement) (2017) 96 NSWLR 434; [2017] NSWCA 263 at [158]; The Owners - Strata Plan No. 4983 v Canny [2018] NSWCA 275; (2018) 233 LGERA 432 (‘Canny’) at [60]-[65]; J.K. Williams Staff Pty Limited v Sydney Water Corporation [2021] NSWLEC 23; (2021) 249 LGERA 109 (‘J.K. Williams’) at [59]-[62].
In the present circumstances, I remain conscious that any ambiguity or uncertainty in the text of a condition of a development consent should be construed according to the ordinary rules of statutory interpretation (Sunland Group Limited v Gold Coast City Council (2021) 274 CLR 325; [2021] HCA 35 at [58]), and that there is no principle requiring laxity or flexibility in construing a development consent nor requiring that ambiguity be resolved against the consent authority who granted the consent, nor do practical considerations permit a rewriting to meet what a court may think is a practical outcome: *Baulkham Hills Shire Council v Ko-*veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 at [99]; J.K. Williams at [61].
Notwithstanding the above, I note, as Meagher JA explained in Allandale Blue Metal at [42] (and noted by Payne JA in Canny at [65]), the relevant principles concerning the construction of a development consent are more easily stated than applied.
While conscious of the manner in which the principles referred to above have been expressed, I have also approached the interpretation of the three development consents including the imposed conditions (both individually and collectively) by asking “what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole”: Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74; [2017] 1 All ER 307 at [34]; J.K. Williams at [62].
The task before the Court is made more difficult because of the interactions (or “interrelationship of aspects of the … uses” as noted by Jagot J at [34] in the Class 1 judgment) between the conduct and various activities undertaken by each of the respondents (and the three consents) in circumstances where certain areas of the Land are used for activities such as maintenance and repair activities of vehicles (including earthmoving vehicles), as well as servicing, washing and parking of implements where some of those implements and vehicles relate to different but likely intermixed conduct undertaken by the respondents. In particular, Mr Godfrey, as the sole shareholder and director (and who I find, to the extent necessary, the directing mind) of each of PSS and ECC, had undertaken activities on the Land (particularly pursuant to D70/97). Thereafter, PSS has used the Land as its principal place of business where that business involves selling soil and sand-related products (primarily the “sand and soil” business) and requires the use of certain implements including front-end loaders and bobcats (and the receipt of deliveries); whereas ECC apparently carries on a separate business undertaking earthmoving, roadmaking and civil engineering works which are carried out at other locations.

The plans attached to, and incorporated in, D179/94 (being the plans accompanying development application 179/94 of 8 June 1994 and expressly incorporated in Condition 1) depict clearly the “proposed” building, being the “dwelling and shed” and, at a scale of 1:2000, the location of the shed and dwelling on the Land. The approved shed was 24m x 15m. The approved plan is annexure “D” to this judgment.
The report of the relevant Council officer in relation to development application 179/94, which was considered at the Council meeting on 8 August 1994, made it clear that the application was for the construction of a brick veneer dwelling attached to a shed “which is intended to be used for the storage of earthmoving equipment”. The report also noted that the shed was to be constructed of Colorbond sheet-metal and to measure 24m x 15m wide and 6.5m high and to be located 5m from the western boundary. The report also noted that the use (for storage of earthmoving equipment) was appropriate.
It is clear, and I find, that the shed was to be used for the storage of earthmoving equipment and for the servicing of such equipment which was to be conducted “within the building”. It is also clear that the conditions specifically provided that “any alteration, variation or extension to the use for which approval has been given would require further development approval”. No relevant further approval was sought for D179/94.
For clarity, I find that D179/94 provided for the development of a “Dwelling & Shed for storage of earth moving equipment”. It did not provide for other uses of the Land. It did not seek consent for (nor did Council grant consent for) the use as an “earthmoving establishment”, as suggested by the respondents. I do not accept the respondents’ submission (as noted at [45(2)]) that Condition 5 assists their case. I do not accept that any reasonable construction would suggest that the proposed “shed for storage for earthmoving equipment” could encompass the use of the whole of the Land.
My construction of D179/94 springs from its clear wording in that it only permits the storage of earthmoving equipment within the approved shed and, contrary to the respondents’ contention, does not permit use of any other part of the Land for the storage of (or other activities involved with) earthmoving equipment or the use of earthmoving vehicles. While it is clear, as submitted by the respondents, that this use necessarily involves earthmoving equipment being transported and/or moved on and off the Land (that is, in and out of the approved shed), on any reasonable view, D179/94 only permits the storing and servicing and the like of the vehicles within the shed. This has not taken place. Even accepting that “earthmoving establishment” was a permissible use under the WLEP 1991 and that on occasions it has been accepted that a consent may be construed having regard to the permissible purposes of a planning instrument – in this case, the WLEP 1991 (Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 at [85], D179/94 is not a consent for an “earthmoving establishment” nor a “rural industry”. A number of the activities and conduct on the Land recorded earlier in this judgment including those noted at [36], [48]-[53] are clearly well outside that permitted by D179/94.

Although D70/97 was granted on 18 August 1997, it is uncontroversial, and I find, that there has been no compliance with any of the seven conditions noted at [13] above. The consent was given for “Wholesale Sand & Soil Yard”, which development was to be carried out in accordance with the plans received by Council on 7 April 1997.
It is sufficient to note that the conditions imposed under D70/97 which have not been complied with related to significant aspects of the approved development including, first, car parking and loading; second, engineering and construction specifications; third, erosion and sediment control; fourth, security fencing; fifth, landscaping; sixth, hours of operation; and seventh, storage and disposal of trade waste. Moreover, the approved plans provided for the provision of landscaping and relatively modest “Sand & Soil Bays” to hold landscaping supplies. As noted at [12] above, development application 70/97 specified that no plant and machinery was to be installed and that approximately 100 tonnes of various landscape and garden supplies would be involved in the operations. As I have noted earlier, the photographs taken by Mr Savage (and the aerial photographs) clearly show that the structures and stockpiles (of various goods and items) that have now been built and placed subsequent to D70/97 do not comply with (nor reflect) the location, size and extent of the “Proposed Sand & Soil Bays” as provided for in the approved plan which is annexed to this judgment and marked “A”.
Although I have found that D70/97 has not lapsed, I find that the present activities and use of the Land (noted at [36], [48]-[53] above) go well beyond, and clearly are not in accordance with, either the plans approved or the conditions imposed by Council under D70/97.
Simply stated, it cannot be maintained that the relatively modest development sought in development application D70/97 for the sale of approximately 100 tonnes of various landscape and garden supplies (with the estimated cost of the development of $2,000) could be said to ground the extensive and intense industrial-scale development presently being conducted on the Land.

Under D144/00, as noted at [17]-[18] above, the approved development permitted the use of part of the Land for a retail plant nursery in accordance with the plans and information received by Council in respect of development application 144/00 received 4 February 2000 (except where varied by the conditions).
The activity approved under D144/00 was constrained by the conditions noted at [17] above. It is clear from those conditions that “minor” retailing was envisaged and that the hours of operation were limited. The plans (annexure “B”) clearly depict the location of a “Proposed Shed/Office” and a location for “Sand & Soil Bays”. Relevantly, the approved plans do not indicate any other facilities or buildings not otherwise provided for in D70/97. It is clear from the evidence that there have been no plant sales from the Land for 5 to 10 years.
Although a modification to D144/00 pursuant to s 96 of the EPA Act was approved by Council on 7 August 2001 for an internal extension to the approved building described as a “3m x 3m ... Mezzanine”, no further consent or approval is operational in relation to the Land (given the respondents’ acceptance that D884-05 is not operational).
I do not accept the respondents’ submission that (even accepting that D144/00 had two components – noted at [45(4)] above) the consent should be sensibly read as applying to the whole of the Land. It was for limited activity as is obvious from both the conditions (noted at [17] above) and the extent of works shown on annexure “B” to this judgment. Although not determinative, it is clear that the construction of some of the bays and the creation of various stockpiles had been commenced (without any approval or development consent) even before development application 884-05 was determined, as Jagot J noted (at [2] of the Class 1 judgment) that the development application involved, inter alia, “…formalising primary product stockpiles and ancillary activities”.
In the light of my finding above, considering the extensive evidence gathered over a period of time, including the observations (and photographs taken by) Mr Savage noted at [36] above and the extensive historical aerial photography, it is clear, and I find, that the nature and extent of the building works and operations undertaken on the Land significantly exceed any development consent that was in operation. In particular, the extent of activities being undertaken includes various works and structures including the construction of hardpacked areas, extensive storage bays, and the undertaking of industrial (scale) activities (for example, the screening machine and the deposition of industrial goods and machinery including building and mechanical items), which are works and conduct not authorised or approved by any of the three development consents considered above. In addition, the uncontested evidence is that the conduct of the various activities and operations on the Land have been undertaken during both day and night and have caused ongoing concerns to rural residential neighbours.
To the extent necessary, I do not accept the evidence of Mr Godfrey that he was at any time of the view that the nature and the extent of operations being undertaken the Land (in particular over the last 5 or 10 years) were in accordance with the three earlier consents in circumstances where he participated in the extensive hearing before Jagot J and was obviously cognisant of the Class 1 judgment and the detailed conditions which were imposed to control development on the Land and the consistent concerns expressed by Council over many years. His evidence is contrary to the significant evidence marshalled by Council, in particular, as noted in detail above, the oral and photographic and documentary evidence of Mr Savage, and the aerial photographic evidence showing the expansion of works on the Land over many years and Council’s attempts to control the conduct on the Land.
Although there is some evidence that Mr Godfrey used his own equipment to grade certain areas in relation to the Land – in particular, near the entrance thereof, I do not consider this is relevant.
Further, although some use of the Land has been for the sale of various soils, sand and related products from about 1994, and there may have been, and the evidence is unclear, some soils and sands stored in stockpiles, it cannot be maintained that that which is being undertaken on the Land at present, is in anyway reflective of the consents otherwise granted.
As noted earlier, it is also clear that Mr Godfrey sought to regularise or “formalise” (and expand) some of the earlier (much complained about) conduct on the Land in the Class 1 proceedings. The judgment of Jagot J notes the detailed and overlapping (“interrelationship of aspects of the proposed uses”) development proposed in development application 884-05 (noted at [24] above) which, as found by Jagot J, sought consent for various permissible development (then under the WLEP 1991), including “earthmoving establishment”, “rural industry”, and consent relating to an underground fuel tank and bowser, two sediment control ponds, ancillary parking and extensive acoustical structures. As recorded earlier in this judgment, the detailed conditions imposed in D884-05 sought to regularise what were clearly some prior unlawful works and provided, inter alia, for limited operating hours, detailed operational constraints as well as acoustic amelioration by way of extensive acoustic walls and earth bunds for the various proposed activities on the Land to provide acoustic, and visual, shielding for neighbours. Despite the obvious expansion, none of those ameliorative works have been undertaken, and I find that it is clear that the respondents have either continued their conduct and, in a number of instances, expanded the works over a significant period of time.
I find that Mr Godfrey, PSS and/or ECC have carried out the following development and works on the Land without development consent under either the WLEP 1991 or the WLEP 2011:
Since about 10 February 2010, and on dates unknown, construction and use of a large above-ground fuel tank, which stores diesel fuel for the vehicles and plant used in various businesses. This development is identified as “Fuel Tank” in annexure “C” to this judgment.
Between about June 2021 to February 2022, construction and use of a wash bay area to the south of the Indoor Workshop. This development is identified as the “Wash Bay Area” in annexure “C” to this judgment.
Between 8 January 2021 to 31 March 2025, construction and use of additional concrete material storage bins. The location of those material bins are identified as “Additional Material Bins” in annexure “C” to this judgment.
Between about June 2021 to February 2022, construction and use of formwork adjoining the Wash Bay Area (identified as “Formwork” in annexure “C” to this judgment).
Between about 6 July 2021 to 8 February 2022, construction and use of an aluminium garage to the north of the shed and dwelling approved under D179/94. This development is identified as the “Garage” in annexure “C” to this judgment.
In or around February 2022, commenced the use of a screening machine, being a Fintec 540, 3-way screener, which is used to screen materials.
Between 15 June 2023 to 31 March 2024, construction and use of a hardstand area under the material storage bins, and construction of new material bins on that hardstand area. This development is identified as the “Hardstand Area” and the “New Material Bins” in annexure “C” to this judgment.
Between about 18 November 2022 to 15 June 2023, construction of a vehicle service area by placing on top of the formwork two shipping containers positioned 18m apart with a large metal frame arch (covered in a durable waterproof fabric). This development is identified as “Formwork and Outdoor Workshop” in annexure “C” to this judgment.
Between about 5 September 2023 to 31 March 2024, construction of a sedimentation basin with two (2) drainage channels. This development is identified as “Sedimentation Basin with 2 drainage channels” in annexure “C” to this judgment.
Between about 5 September 2023 to 31 March 2024, earthworks, being the excavation of an area measuring about 16m x 15m x 0.9m. This development is identified as “Earthworks Area” in annexure “C” to this judgment.
Between about 5 September 2023 to 31 March 2024, construction of a sedimentation basin with a concrete spillway. This development is identified as “Sedimentation Basin with 1 concrete spillway” in annexure “C” to this judgment.
Given the unclear but nevertheless intermixed relationship between aspects of the conduct and operations undertaken by the respondents on the Land, to the extent necessary, and given my findings noted at [48]-[53] above, I find that the respondents have carried out, and continue to carry out, as submitted by Council, development on the Land in breach of the EPA Act for, or similar to, the following purposes – first, “truck depot” (including the use of the above-ground fuel tank and fuel bowser which I find to be prohibited under the WLEP 2011); “commercial premises” (by reason of its use as a vehicle sales or hire premises which is prohibited under the WLEP 2011); “waste disposal facility” (which is prohibited under the WLEP 2011); and “landscaping material supplies” (which although permitted with development consent under the WLEP 2011, the respondents have not obtained such consent).
In summary, I find that the respondents have undertaken significant, interrelated activities on the Land that on any reasonable view are not in accordance with any of D70/97, D179/94 or D144/00, and, as I have found above, that development application 884-05 was an attempt to regularise (and in some circumstances expand) what was otherwise earlier unlawful activity on the Land. I accept Council’s position in this regard and find that the above noted activities and conduct presently undertaken are unlawful and have material adverse effects upon the amenity of rural residential neighbours.

In exercising my discretion, I accept Council's submission that the conduct of the respondents shows a pattern of undertaking certain works then seeking development consent and that certain activities and operations being undertaken on the Land are “intermixed” between those consents which I find endure being, D70/97, D179/94 and D144/00. I remain aware that the Land is presently zoned RU2 which, as noted at [9] above, permits many uses in accordance with the WLEP 2011, and I remain conscious that although I have found each of D70/97 and D144/00 have not lapsed, I have found that certain activities and works undertaken by the respondents are clearly not in accordance with either of those consents or D179/94.
Adopting the principles summarised above, and balancing the discretionary factors relevant to the exercise of the Court’s discretion, for the reasons that follow, I consider that declaratory and injunctive relief should be granted to Council in light of the respondents’ breaches of the EPA Act and that the respondents should be ordered to remove a number of the works and activities unlawfully constructed on the Land, and that this relief ought to be suspended for a period of three months.
First, the works and conduct noted at [48]-[53] above are not merely technical breaches nor is there any doubt as to the nature and extent of the works and activities undertaken on the Land over a long period of time. This is clear from both the uncontested evidence of Mr Savage including extensive contemporaneous file notes and photographs which clearly evidence the works undertaken, and a number of admissions and concessions made by Mr Godfrey in cross-examination.
Secondly, I have taken into account the related conduct of Mr Godfrey including his decision not to proceed under D884-05 (despite having earlier sought consent for what is clearly a suite of activities not dissimilar to those presently being carried out on the Land) and the respondents’ conduct in continuing (and apparently expanding) the activities that may have otherwise been regularised with the adoption and operation of D884-05.
Thirdly, Council, over many years, has sought to contain and/or control the respondents’ operations through various measures including the institution of Class 4 proceedings and many requests and formal notices and directions under the Protection of the Environment Operations Act 1997 (NSW) and the EPA Act expressing Council’s concern in relation to the conduct on the Land most of which have been responded to by Mr Godfrey (or his retained town planner) offering opinions in relation to the lawfulness of the continuing (and apparently expanding) conduct on the Land. In addition to Council’s concerns, ongoing concerns have been expressed by rural residential neighbours for many years, with such concerns remaining unaddressed by the respondents.
Fourthly, although there has been a paucity of evidence marshalled on behalf of the respondents either explaining their past and present conduct or raising any material concerns in relation to hardship (financial or otherwise) that may arise from Council achieving the relief it seeks, I accept that the cessation of a number of the activities and the removal of structures will clearly have an effect on the respondents in a commercial and financial sense.
Fifthly, while it is clear that properly understood and characterised, a number of the uses which the respondents may desire to continue on the Land are permissible with consent, the orderly enforcement of the planning laws is an important consideration in circumstances where I find that significant works and use of the Land have been undertaken either without the requisite consent or not in accordance with consents that have been granted. As such, I remain conscious that the relief sought by Council in these proceedings is the enforcement of a public duty imposed by an act of Parliament – through which Parliament has expressed the public interest in the orderly development and use of the environment. These proceedings have been brought by Council as the responsible authority and the proper guardian of public rights, and its interest is deemed to be protective and beneficial, not private or pecuniary (Sedevcic at 340). Further, it is trite to note that, disregarding the conduct of the Class 1 proceedings, Council, despite its endeavours, has been deprived of the opportunity to consider the provision of appropriate safeguards and, possibly, infrastructure which would have otherwise been the subject of evaluation and assessment if considering a proper application.
Sixthly, I remain conscious that at least as at 13 October 2024 (well after the institution of these proceedings and shortly before the hearing was to commence) a development application was lodged on behalf of the respondents apparently seeking development consent for certain conduct on the Land. However, the nature and extent of any such proposal (and any proposed ameliorative measures) have not formed part of the respondents’ evidence in these proceedings.
In the light of my findings above in relation to the respondents’ breaches of the EPA Act, I have considered whether the issue of injunctive relief and whether the Court should suspend the operation of any consequential relief to allow the respondents an opportunity to seek to regularise the use of the Land or otherwise cease the unlawful use of the Land in a staged manner.
I am concerned as to whether regularisation would in any event be available on the basis that I am of the view that the development consent could not validly be granted to “regularise” certain of the development that has already taken place. While it may be possible to regularise unlawful use by obtaining a development consent, it does not follow that this principle extends to “regularise” the erection of a building or performance of works which are different categories of development from use.
In summary, I consider the factors to be weighed in exercising the Court’s discretion, include – the seriousness of the breaches which I have found; the fact that the breaches are not technical; the continuing nature of the conduct over a long period of time; the lack of evidence of any material hardship to the respondents that would follow from the relief sought by Council; and the obvious effect of the respondents’ ongoing conduct on rural residential neighbours.
Overall, while not determinative in my conclusion, I have given consideration to the fact that it appears that the respondents (in particular, Mr Godfrey) have embarked upon a course of conduct over many years for Mr Godfrey’s own commercial purposes involving significant development which has been subject of considerable concern expressed by Council and neighbours. I am of the view that the cost and inconvenience to the respondents of complying with the law (and the orders I make) is to some extent ameliorated by the postponement of the operation of the injunctive order for three months from the date of judgment.

Wollondilly Shire Council v Godfrey and Ors

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

Introduction and outcome

Structure of judgment

Background

Evidence

Council’s evidence

Respondents’ evidence

Submissions

Council’s position

Respondents’ position

Consideration

Have D70/97 and D144/00 lapsed?

D179/94

D70/97

D144/00

Appropriate relief

Conclusion

Costs

Orders

Addendum made 2 April 2026

Further orders

Amendments

28 February 2026

16 April 2026

Parties

Legislation Cited (3)

Cases Cited (14)

Cited By (1)