Zouki & (2) Ors v Water Administration Ministerial Corporation

IN THE LAND AND Matter No: 10194, 10261, 10262 ENVIRONMENT COURT of 2001 OF NEW SOUTH WALES Coram: Sheahan J 4 April 2001

Matter 10194 of 2001 KEVIN ZOUKI Applicant v WATER ADMINISTRATION MINISTERIAL CORPORATION Respondent

Matter 10261 of 2001 HARDY PTY LTD Applicant v WATER ADMINISTRATION MINISTERIAL CORPORATION Respondent

Matter 10262 of 2001 REVAKO PTY LTD Applicant v WATER ADMINISTRATION MINISTERIAL CORPORATION Respondent JUDGMENT Introduction

This judgment deals with applications to stay three orders under the Rivers and Foreshores Improvement Act 1948 ("the Act") against which appeals have been lodged.

The original applicant ("Zouki") commenced his class 1 proceedings on 9 March 2001, by way of an appeal by him against the "stop work" order issued to him by the respondent Corporation on 23 February 2001, pursuant to the provisions of s 22B of the Act, subsection (1) of which provides as follows: A person must not: (a) make an excavation on, in or under protected land, or (b) remove material from protected land, or (c) do anything which obstructs, or detrimentally affects, the flow of protected waters, or which is likely to do so unless the person is either authorised to do so by a permit under this Part and does so in accordance with any conditions to which the permit is subject, or is authorised to do so by the regulations.

Such appeals are brought pursuant to s 22L of the Act, and Zouki's Notice of Motion was filed on the same day as his appeal, specifically pursuant to s 22L(2), which provides: The lodging of an appeal does not, except to the extent that the Land and Environment Court otherwise directs in relation to the appeal, operate to stay action on the decision appealed against.

In Zouki's notice of motion he asked: That … it be directed that the lodging of the appeal in these proceedings operate to stay action on the decision appealed against.

Neither Counsel could bring to the court's attention any earlier similar cases.

In those circumstances it seems to me that the role of the court at this stage of the proceedings is akin to its role in the determination of applications for interlocutory relief in class 4 of the court's jurisdiction.

I, therefore, propose to adapt and apply the principles laid down, for example, by Mason ACJ in Castlemaine Tooheys Pty Ltd v South Australia (1986) 161 CLR 148 (at 153), and I have required the parties to demonstrate to the court: (1) whether there is a serious issue to be tried in the appeal; (2) whether irreparable harm may flow if the stopwork order is stayed or not; and (3) where the balance of convenience lies in all the circumstances.

Relevant background and the now related proceedings

In relation to the "subject land", 9 Davies Road (Lot 29 DP 804530) Padstow, Zouki is associated with Maxwell Vidler ("Vidler") and the two applicant companies, Hardy Pty Ltd ("Hardy") and Revako Pty Ltd ("Revako"). Vidler is the sole director of Revako, Zouki is a director of Hardy, and Revako and Hardy are the registered proprietors of the subject land.

As a director of Vidler Davies & Associates Pty Ltd, consulting civil and structural engineers, Vidler is the project director for works of subdivision and construction carried out, and intended still to be carried out, on the subject land, pursuant to two development consents granted to Zouki by Bankstown City Council in 1999.

On 23 March 2001, in view of disclosures made regarding these relationships, by Vidler in an affidavit in Zouki's proceedings, the Corporation issued "stop work" orders against both companies in similar terms to that issued to Zouki.

At the hearing on 27 March 2001 I granted leave to the two companies to lodge appeals against those orders, and also to bring on for hearing, instanter and simultaneously with Zouki's, notices of motion to the same effect as Zouki's.

Therefore, this judgment deals with all three Notices of Motion.

The relevant statutory regime and the issues in the appeals

Sections 22Aff sit within Part 3A of the Act, which deals with permits required to be obtained from the Corporation before certain works are carried out, either on "protected land", as therein defined, or which may impact upon the flow of "protected waters", as therein defined.

Permits may be granted on conditions, with which the proponent of the relevant works must comply. 15. The relatively recent "integrated development" provisions of the Environmental Planning & Assessment Act 1979 ("EP&A Act") call up Part 3A permits as a relevant approval to be obtained during the development consent process (see s 91 of the EP&A Act).

However, the consents enjoyed by those associated with the appellants in these matters were not issued in conjunction with Part 3A approvals, and the court notes that there have been no proceedings commenced, as yet, challenging the validity of those consents. The court was told that investigation of the circumstances of granting consent without reference to the Corporation is continuing.

For relevant purposes, "protected lands" are lands located not more than 40m from the top of the bank of "protected waters", which are defined by the Act to include rivers, lakes or lagoons in certain circumstances. The Council apparently formed the view that the waterbody near the subject land is/was not a "river" or other "protected waters" - see relevant correspondence in the exhibited bundle of documents (Exhibit W2).

Many of the works envisaged by the consents granted for industrial subdivision and associated development of the subject land have been completed, but the Corporation contends that the relevant watercourse near the subject site is, in fact, a "river", which is less than 40m from some of the remaining works the appellants wish to complete, on an area of the subject land identified by the Corporation as appropriate for the establishment of a planted riparian zone. In particular, the development consent envisages substantial paving works, integral to the subdivision, within 40m of the watercourse.

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

I discussed these provisions of both relevant Acts in Water Administration Ministerial Corporation v Auburn Council & Ors [2000] NSWLEC 76.

There is a serious disagreement between the parties to each of these proceedings as to whether Part 3A of the Act properly applies to the subject land, and/or to the proposed works, which have been approved but not yet completed.

Each side has adduced expert evidence on the history and circumstances of the subject watercourse. Interpretation of aerial photographs of the area, taken over a 70 year period, will play a key role in the determination of the status of that watercourse.

Mr Ayling advanced three bases for a stay on the three orders: 1. There is no reasonable prospect that these appeals might fail , as the relevant watercourse is not a river within the meaning of the Act. 2. If the work envisaged by the appellants do not continue, they will sustain great prejudice including loss of sales of lots created in the subdivision. 3. The remaining works are not of the types envisaged by s 22B(1). 24. In essence, his submission is that the lands on which the works will be carried out are not "protected lands" because of the appropriate interpretation of the definition of "river".

Mr Ayling relies on a string of authorities defining "river", "stream" and "watercourse", and submits that if no Part 3A permit is required for works no "stop" order can be issued. He also rightly submits that the appellants can rely on the consents until they are declared invalid.

His submission is basically that, as these appeals will certainly succeed, the discretion to grant the stay should be exercised, and works permitted to continue.

He submits that the Act is a "blunt instrument" in the present circumstances. Part 3A was added to the Act in 1991 to deal with particular problems involving sand and stone mining in waterways. In this regard he referred the court to the Minister's Second Reading speeches (Legislative Assembly of NSW, Hansard 1 May 1991 pp 2927-2930, and Hansard 2 July 1991 p 93).

As the definition of "river" is framed as an "inclusive" definition, he submits that the term should be given its ordinary meaning plus those items therein listed (see par 19 above). As this watercourse is not a river in the ordinary sense, but a stormwater channel artificially blocked and ponded by the Council, it is not such that would attract the provisions of Part 3A.

Vidler has been working in the building and engineering industry since January 1966 and has relevant qualifications and accreditations (Exhibit A2). His consulting company specialises in design and project management of construction works and development. It has undertaken works on behalf of Federal, State and local governments and publicly listed companies. Vidler is very familiar with the subject land and its environs, having first attended it in a professional capacity in 1977.

He gave detailed historical evidence to contradict the respondent's assertion that the stormwater drain and/or artificial pond or detention structure, on land adjoining and immediately north of the subject land owned and occupied by Bankstown City Council, constitutes a "river".

His evidence is that no water flows at all in the watercourse except during and immediately after rain events, and that the water level falls rapidly even after serious rain events. He was extensively cross-examined also regarding works completed and those yet to be done.

Mr Ayling submits that the drain and artificial wetland do not constitute a river, as there is no "stream of water" occupying what is essentially a drainage depression. If there are relevantly no "protected waters" there is no "protected land", and the work required to be done is not caught by s 22B, even if the waterway is a river. All that is now needed is backfilling. The tarmac will be laid on an already prepared surface. In terms of s 22B(1)(c) the only water will be back-up floodwater.

The Corporation asserts that it has a policy that the grant of permits pursuant to Part 3A of the Act should be subject to a condition requiring a 20m wide riparian zone of native vegetation (Exhibit W1). In the circumstances of this case such a zone would extend well within the boundaries of the relevant land, but no such zone is provided for in the two consents, both of which contemplate that the subject land will be concreted to the northern boundary in a manner consistent with the use of the land for industrial purposes, and with the provision of driveway access to a proposed service station development, with which the appellants are not directly involved.

The requirements in the State Policy (Exhibit W1) go far beyond dealing with questions of mining for sand and rock in riverbeds, the principal focus of the 1991 Second Reading speech.

There is a clear difference between the evidence given by Vidler, both in his affidavit and in oral testimony, and that in the affidavits and exhibits of Philip Edward Pidgeon and Owen Peter Graham, on behalf of the Corporation, to the effect that the relevant channel running towards and under Davies Road and out to Salt Pan Creek satisfies the definition of "river", because the water flow path in the vicinity of the site was, prior to or during 1930, a natural channel which has subsequently been artificially improved and slightly relocated due to those improvements.

Graham opines (par 29 of his affidavit dated 21 March 2001): In spite of those improvements, the channel still performs the same role as the natural watercourse in the same location did prior to catchment development - that is, it conveys concentrated flows of water from the catchment in a channel to the estuary of Salt Pan Creek .

The Corporation complains that the headwall in the riverbed/banks has been installed illegally, and in a manner not consistent with the principles of sound river management upon which it insists. Some of the works have been carried out on "protected lands" not more than 40m from the top of the bank. Even if a Part 3A permit had been granted, conditions would have applied, and the development consent has not been granted in accordance with the provisions of Division 5 of Part 4 of the EP&A Act.

Regarding the applicability of s 22B to any future works, Mr Tomasetti submits that Vidler's evidence is inconclusive as to whether any further drainage work is required. He is not fully aware of what is necessary in respect of the service station, but it is clear that substantial roadworks are required, which will require stripping of vegetation, compaction of soil, etc. It is likely that these will infringe s 22B.

This is a reserved judgment in an interlocutory proceeding, and I, therefore, consider it better not to summarise, in any greater detail than I have, the complexities of the evidence presented at the hearing, regarding the history and status of the watercourse, and the development works which will be halted if the orders are not stayed.

The validity or otherwise of " stop" orders will be determined when the appeals are heard, and cannot be prejudged before all the necessary evidence and submissions are available.

I am satisfied that the "stop" orders would have or serve no purpose if stays were granted pending those appeals. In essence, Mr Ayling is asking for a summary judgment on the appeals themselves.

The court at the final hearing of the appeals will have to deal with the complex question of construction posed by them, in the circumstances of the subject drainage system and the works on the subject land.

Similar questions have been answered by various courts, including this one, in a range of different factual circumstances. Some of the leading cases were referred to in the oral argument on the motions, such as M'Nab v Robertson & Ors [1897] AC 129, Gartner v Kidman (1961-62) 108 CLR 12, Knezovic v Shire of Swan-Guildford (1967-68) 118 CLR 468, Narrambulla Action Group v Mulwaree Council [1996] NSWLEC 199, and Warringah Council v Ardel Ltd (2000) 106 LGERA 340.

Some of those cases are binding on this court, but, at the hearing, regard may also be had to other decisions of this and other courts, such as my decision in Mitchell v Vella (1998) 101 LGERA 333, Lloyd J's decision in Azzopardi & Ors v Gosford City Council & Anor [2001] NSWLEC 49 (par 5ff), and Lee J's judgment in Latta v Klinberg (S.C.8280 of 1976, judgment dated 1 July 1977, dealt with in Mitchell v Vella at 347-8).

Dictionary definitions of "river", "stream", etc, including those handed up during argument, but probably others as well, may need to be referred to in the court's construction of the relevant provisions.

Class 4 challenges to the relevant consents may yet be launched.

I have concluded that the two substantive limbs of Mr Ayling's principal submission (see items 1 and 3 in par 23 above) pose "serious questions to be tried".

I cannot agree with Mr Ayling that the Corporation will necessarily fail in its defence of these appeals.

I believe that the "balance of convenience" lies with the works remaining "stopped" pending the appeal, and that the "prejudice" of which the appellants complain is best dealt with by expedition of the appeals, a course to which the Corporation does not object.

I have decided that the discretion of the court should not be exercised to stay the "stop work" orders until the appeals are heard.

The orders of the court, at this stage of all three proceedings, will, therefore, be: 1. The notices of motion are dismissed. 2. Costs are reserved. 3. The hearing(s) of the 3 appeals is/are ordered to be expedited. 4. The 3 appeals are to be listed before the Registrar on Friday 6 April 2001 for the setting of the expedited hearing date(s) and the giving of directions. 5. The exhibits are to be returned.

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