--Azzopardi and Ors v Gosford City Council and Anor (No.2)

[2001] NSWLEC 283

Reported Decision: 119 LGERA 132

Land and Environment Court

of New South Wales

CITATION:	--Azzopardi & Ors v Gosford City Council & Anor (No.2) [2001] NSWLEC 283
PARTIES:	APPLICANTS: Victora Azzopardi, Jane Azzopardi, Michael John Azzopardi and Kim Leanne Azzopardi FIRST RESPONDENT Gosford City Council SECOND RESPONDENT Parit Pty Limited
FILE NUMBER(S):	40093 of 2000
CORAM:	Sheahan J
KEY ISSUES:	Judicial Review :- development consent - validity - integrated development - onus of proof - discretion - costs
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 ss 91, 91A Land and Environment Court Act 1979 ss 25B, 25C, 25E Rivers & Foreshores Improvement Act 1948 s2, and ss22A-22L
CASES CITED:	ACR Trading Pty Ltd & Anor v Fat-Sel Pty Ltd & Anor (1987) 11 NSWLR 67; Don Burke & Ors v Hawkesbury City Council & Ors [2001] NSWLEC 222; Somerville v Dalby & Ors (1990) 69 LGRA 422; Tynan & Ors v Meharg & Anor (1998) 101 LGERA 255; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; Zouki & Ors v Water Administration Ministerial Corporation [2001] NSWLEC 258
DATES OF HEARING:	10/09/2001-12/09/2001
DATE OF JUDGMENT:	12/14/2001
LEGAL REPRESENTATIVES:	APPLICANT Mr J Kildea (Barrister) Thompson Norrie (Solicitors) FIRST RESPONDENT Mr W R Davison SC (Barrister) P J Donnellan &Co (Solicitors) SECOND RESPONDENT Mr P Tomasetti (Barrister) Gregory J Halpin (Solicitor)

JUDGMENT:

VICTOR AZZOPARDI, JANE AZZOPARDI, MICHAEL JOHN AZZOPARDI and KIM LEANNE AZZOPARDI

Applicants

v

GOSFORD CITY COUNCIL

First Respondent

PARIT PTY LIMITED

Second Respondent

JUDGMENT

Introduction

1. In these class 4 proceedings, four members of the Azzopardi family (“Azzopardi”) have challenged the validity of a development consent granted by the first respondent (“Council”) to the second respondent, a company controlled by members of the Pace family (“Pace” - see Exhibit P1).

2. In their amended class 4 application Azzopardi seeks a declaration that the development referred to in DA5754/99 (“the subject DA”) for “a proposed warehouse addition to an existing water bottling plant” on lot 1 in Deposited Plan 430586, 229 Euloo Road, Peats Ridge (“the Pace land”) was “integrated development” within the meaning of s 91 and s 91A of the Environmental Planning & Assessment Act 1979 (“EP&A Act”).

3. On its land Pace conducts a business which bottles “Peats Ridge Springs Still Natural Spring Water”. Pace carries out bore water monitoring on its side of its common boundary with adjoining land (see Exhibit P8 and Exhibit P18), on which Azzopardi has farmed chickens (for meat purposes), and vegetables, especially carrots, since about 1990, relying also, partly, on bore water.

4. Both the Azzopardi and Pace lands are traversed by an unnamed watercourse, which has its source in land to the north of the Pace land, flows generally in a southerly direction through the Pace land on to the Azzopardi land (Exhibit A2 and Exhibit P11), and ultimately into a creek forming the headwaters of Mooney Mooney Creek, a tributary of the Hawkesbury River (Michael Azzopardi affidavit 23 June 2000, par 13).

5. The watercourse carries running water on a perennial basis, except in extremely dry conditions. A dam was constructed to “form part of the unnamed watercourse” on the Pace land, and there are relevantly also two dams on the Azzopardi land.

6. A drainage system on the Azzopardi land supplies a trench near the common boundary, and the drained water flows, in due course, into the Azzopardi dam (see Exhibit P3 and Exhibit P7 c.f. p6).

7. Azzopardi holds a current licence from the Department of Land and Water Conservation (“DLWC”) permitting diversion of water, from that part of the watercourse on his land, for domestic purposes, irrigation and stock watering.

8. There is uncontested evidence of some history of conflict between these families. Michael Azzopardi acknowledged that Pace bottles water for sale to the public, but denied that he has stored manure near the Pace bores. He claimed that the manure shown in various photographs (Exhibit P8) was deposited for the fertilisation of trees.

9. The cl 4 application also seeks declarations that:

· “the unnamed creek within the[Pace] Land is a river within the meaning of that term as defined by the Rivers & Foreshores Improvement Act 1948” (“R&FI Act”),

· the Council’s determination dated 13 March 2000 granting development consent (“DC”) to DA 5754/99 was invalid, and

· that any construction certificate issued by the Council pursuant to that development consent is also invalid.

and orders that:

· Pace be restrained from carrying out the development on the land, and/or

· demolish the structures erected on the land purportedly in pursuance of the development consent.

Relevant development applications

10. Council has dealt with a series of development proposals in respect of the Pace land, and has had some disputes with Pace over time (see Exhibit A4).

11. DA 18881, lodged 7 July 1994, sought approval for a packing shed on the subject land (see Council file and Exhibit G4). The consent was issued on 6 September 1994, and a building approval was granted for the packing shed on 17 November 1994. Some road construction was included in that consent.

12. A further consent was issued (to DA 18921) on 11 October 1994, for the extraction of 8 megalitres of water per annum, in accordance with licences issued by DLWC.

13. DA 20725 was refused on 28 March 1996, because “the existing building does not have the consent of Council in the location it has been erected”. It would appear that at about that time Azzopardi began resisting expansion of the Pace operation. Azzopardi was especially concerned with the conversion of Pace’s packing shed into a water bottling plant with offices and amenities, without approval, and about its location 40m, rather than 200m, from the boundary between the Azzopardi and Pace lands.

14. Council also expressed concern about the exceedence by Pace of an 8 megalitre water limit. On 16 August 1996 or thereabouts, DLWC advised Council that it had approved Pace’s extraction of a total of 25 megalitres per annum.

15. Consent orders were eventually made by this court in respect of the use of premises as a water bottling plant in its existing location on 12 June 1998 (see Exhibit G1, Tab 1, ERM document p1.1). A subsequent alteration increased the maximum capacity of the plant to 25 megalitres. In a further appeal to the Court on 30 October 1998 the hours of operation were extended (ibid p1.2).

16. It would seem, therefore, that, despite Azzopardi’s continuing concerns, Council regarded the Pace operation as having been regularised, by it and/or by this court, by the time the subject DA was made.

The subject DA

17. DA5754 was lodged between 14 and 26 October 1999 (Exhibit G1). The application was lodged on behalf of Pace by ERM Mitchell McCotter (“ERM”). The relevant “box” on the cover page, indicating that the development was “integrated development”, was not ticked. There was an issue raised about the question of owner’s consent to that DA, but it was not pursued at the hearing.

18. The proposal was described as “proposed warehouse at existing water bottling plant”, and the estimated construction cost was stated to be $77,000. The warehouse was to be single storey with a floor area of 2,160m2. A statement of environmental effects (“SEE”), prepared by ERM and dated 14 October 1999, was submitted.

19. The site was described (SEE p1.2 s 1.4) as follows:

The site is surrounded by agricultural land uses and is zoned rural 1(a). Water bottling facilities are permissible within the Rural 1(a) zone. The adjoining sites all have access to Euloo Road. A poultry farm adjoins the site to the north east and includes a dwelling, three chicken sheds and packing shed. To the west is a spring feed dam, grazing land and orchards.

20. The project was described (SEE p3.1 s 3.1) as follows:

The proposal involves the expansion of the storage capacity of the plant by constructing a new warehouse on the eastern side of the factory over the existing paved truck manoeuvring and pallet storage area. The warehouse will be 2,160 square metres in area and constructed of corrugated sheet metal to match the existing factory. A concrete hebel wall to attenuate noise will form the western elevation. The layout of the proposed warehouse and access road are depicted in the accompanying plans.

Trucks are to access the new warehouse via a new driveway along the western side of the existing factory. Unloading and loading of trucks will be restricted to the designated loading bay areas. Sliding doors on the western side of the building will allow direct access through to the existing factory for staff and forklifts.

A total of 25 parking spaces will be provided to the rear for staff vehicles, which is sufficient given that no more than 13 employees are present on site at any one time.

The warehouse will be used for the storage of pallets and boxes associated with the existing operation. No machinery will be operated within the new warehouse and water bottling operations will remain within the existing factory. The only vehicles which will enter the new building, will be forklifts to stack and relocate packaging materials and water products.

21. Stormwater drainage arrangements were described in s 3.4 of the SEE (pp3.2-3.4, including schematic diagrams of a dissipation structure) in the following terms:

Given that the existing concrete truck manoeuvring area will form the slab for the proposed warehouse, the additional impervious areas will be the proposed car parking area and driveway, which equates to an estimated 18 per cent of the existing developed area or one per cent of the total site area. This will have minimal impacts on the degree of stormwater runoff and thereby the quality of the adjoining water catchment. However, to prevent erosion and scouring a gabion structure is proposed at the point of stormwater discharge. The gabion will be located immediately downstream of the stormwater discharge point prior to entry into the dam. A gabion is an energy dissipation structure consisting of graded gravel and boulder rip rap inside a wire mattress. This structure reduces the flow velocity of the stormwater and therefore prevents erosion and scouring at the entrance to the dam. The gabion is also underlain by a geotextile liner to prevent scouring of the underlying soil layer. A schematic diagram of the type of gabion structure proposed is shown in Figure 3.1.

22. There is a fundamental issue between the parties as to whether this drainage proposal involved excavation, or whether (as contended by Pace) drainage was to be accommodated in the sealing arrangements for an existing access roadway.

23. Questions of access were dealt with in s 4.4 of the SEE, and s 4.4.2 (p4.8) says:

There is an existing combined entry and exit driveway which provides access between the site and Euloo Road. The driveway and access road currently operate satisfactorily, based on observations made during site visits and the low traffic generation of the site.

No changes to access to or from Euloo Road are proposed, and the existing access arrangements would continue to operate for the proposed new building. As there would be no changes to traffic generation or the mix of vehicles using the site, the existing access arrangements would continue to operate satisfactorily. Access between the site and Euloo Road is therefore considered adequate and appropriate.

24. In s 4.4.4 (p4.9) the SEE continues (p4.10):

The access way between Euloo Road and parking and loading areas is proposed to be sealed. The new access road west of the existing building would be six metres wide, which is sufficiently wide to allow for two way traffic flow. In any event, traffic flows along this section of road would be so low that it would rarely have to cater for two way traffic.

Overall, the proposed layout would improve and formalise the existing arrangements, and is considered simple and appropriate.

25. Appended to the SEE was a geotechnical report by Network Geotechnics Pty Ltd (“Network” - also included in Exhibit G1, Tab 1), dated 3 December 1998, which relevantly begins as follows (s 1.0, p4):

As requested, Network Geotechnics Pty Ltd have carried out geotechnical studies for proposed pavement construction and reconstruction at RMB 1575 Euloo Road, Peats Ridge.

Proposed development includes upgrading about 60m length of right of way from Euloo Road, upgrading/construction of about 200m length of internal access road (private) and about 2000m2 of concrete hardstand. A layout of the site is shown on the attached Drawing No. G98201/1-1.

The aims of this study were to assess surface, sub-surface and geotechnical conditions at the site in order to provide recommended pavement thickness designs for the proposed construction and upgrading.

26. The report’s comments on site conditions include the following (s 4.1, p5):

The proposed pavement construction provides access to and around an existing metal clad, steel framed factory that has been constructed on a cut/fill platform formed on the 3 to 5 west facing slopes. East from the factory the proposed 200m2 hardstand is within existing cut of up to 2.5m. Along the west and southern sides of the existing factory, the fill is generally 1.5m to 2.5m high.

The edge of an existing dam is within 5m from the toe of the fill batter beyond the south-west corner of the factory. Several other buildings are positioned to the north of the existing factory. The existing formation within the Euloo Road right of way adjacent to Lot 1 is unsealed and there is an unsealed track from the right of way to the existing factory.

27. In s 5.0 “Discussion & Recommendations” (p6) the following appears:

Design levels for the internal access road and hardstand are understood to be similar to existing surface levels. Anticipated subgrade materials comprise fine to coarse grained residual SAND/Silty SAND and Gravelly SAND for which laboratory tests (5) indicate soaked CBR values ranging from 16% to 50%. The field moisture content of these subgrade samples ranged from 1% dry to 1.5% wet of Standard Optimum. A subgrade CBR value of 15% has been adopted for design.

28. Also appended to the SEE were various inspection certificates by Halcrow & Associates (“Halcrow”), consulting structural engineers, dated June 1999.

29. Submitted with the DA there were also three sheets of plans prepared by Raybal Developments Pty Ltd (“Raybal”). The court accepts Mr Tomasetti’s submission that these plans do not disclose the need for, nor any then current proposal for, any excavation works in respect of the “proposed” concrete truck access road near the relevant dam on the Pace property.

Council’s processing of the subject DA

30. Presumably because of the proximity of the dam, the Council referred the development application to DLWC, and Mr Chris Voisey, a departmental engineer, responded to Mr Gray of the Council, on 8 November 1999, that “the attached DA is not integrated under the R&FI Act” (Exhibit G1, Tab 2). Council relied on the DLWC response.

31. Various objections were received, including one from Azzopardi dated 11 November 1999. A local community organisation (Mangrove Mountain Districts Community Group Inc) noted on 10(?) November 1999 “that the machinery shed, that became a bottling plant at Peat’s Ridge, then became a factory and then got bigger has now got another DA in at Council for a warehouse?!!” (both objections appear in Exhibit G1, Tab 3).

32. Azzopardi, by facsimile dated 13 December 1999, objected to the Council that it had not “looked into” the fact that, under the R&FI Act, “no excavations within 40 metres of protected waters is (sic) allowed” (Tab 4).

33. On 18 February 2000, Pace amended its estimated construction cost to $227,256, and made an additional payment to Council in respect of development application fees (Exhibit P12).

34. On 24 February 2000, Conditsis & Associates Lawyers (“Conditsis”) made a detailed and wide ranging submission to the Council on behalf of Azzopardi (Exhibit G3), objecting to DA 5754/99, which was apparently then to be considered by Council on 7 March 2000, complaining about Pace’s operations and alleged disregard of conditions of consent, and objecting to the already existing access road, which appeared to have been constructed without consent. Conditsis submitted that the cost of the project would probably be $1M and complained that inadequate fees had been paid. Other matters dealt with included potential downstream pollution, traffic, industrial scale in rural area, noise, and alleged bad performance by Pace of Council obligations in the past.

35. Conditsis (Exhibit G3 par 7) drew attention to the assertion that the proposal looked like integrated development, and said:

given that the application draws on primary resources we submit that the Department of Land & Water Conservation would take particular interest in this matter and that Council is duty bound to refer the matter to the Department as an integrated development .

36. The Council considered the DA at the ordinary meeting of 7 March 2000 (see officer’s report at Exhibit G1, Tab 5). The public submissions were addressed in detail, including the assertion that, “being within 40 metres of a prescribed stream”, the proposal was not permitted under the R&FI Act. The officer’s report noted (p5) that:

The Department of Land & Water Conservation have advised that the extent of works do not require a permit under this Act .

37. The report concluded (p6):

The proposed development will be a practical addition to the existing water bottling plant that will allow for a more even spread of production activity and more stable employment opportunities. The building of the proposed warehouse over the existing loading area and the relocation of the loading area to the western side of the development, at a greater distance to the neighbouring property, will alleviate many of the existing amenity impacts. The proposed development is considered satisfactory under Section 79C of the Environmental Planning and Assessment Act, 1979, and Section 89 of the Local Government Act, and approval is recommended.

38. The Review Committee of Council, on 7 March 2000, recommended consent on conditions (see Resolution at Exhibit G1 Tab 6), which included the following:

1. No works are to be commenced until a Construction Certificate has been issued.
…

The developer and builder shall be held responsible for any breaches of the Protection of the Environment Operations Act 1997. Failure to implement or maintain appropriate erosion/sediment control measurers is a breach of Section 120 the Protection of the Environment Operations Act 1997. Such a breach is liable for a $750.00 on the spot fine for an individual or $1,500.00 for a Company. Applicant(s) and Builder(s) are advised that spot checks of Erosion and Sedimentation Control measurers may occur and fines for breaches imposed.
…
42. Driveways are to be designed according to the requirements of the current Australian Standard AS 2890. Plans are to show the following information:

i. vehicular swept paths and dimensions of clear manoeuvring areas;
ii. a longitudinal section through the centre line of the driveway from the kerb line to the proposed garages, showing driveway grades and suitable transition at changes of grades;
iii. drainage pits and pipes;
iv. a pavement design prepared by a suitably qualified Engineer.
At the completion of construction a Compliance Certificate shall be submitted prior to the issue of an Occupation Certificate. A work as executed plan and written verification stating that all driveway pavements as built will perform to the criteria set down by the designing Engineer and the work has been constructed in accordance with the Construction Certificate.

43. Construction of the following works in accordance with Council’s Civil Construction Specification, Specification for the Drafting and Design of Stormwater Drainage Works and roadworks and Code of Practice for Erosion and Sedimentation Control. The works shall not have an adverse impact upon nearby properties and shall comply with WorkCover Authority requirements. A Compliance Certificate together with two (2) copies of a work-as-executed plan shall be submitted with the Occupation/Subdivision Certificate.
- Vehicle crossing that has a width of [6]m and constructed with a 25mm thick asphaltic concrete seal of 225mm thick layer of base course material.
…
45. The proposed car parking area, loading area, vehicle manoeuvring, and truck access road are to be drained in such a manner that nutrients and pollutants associated with the first 25mm of any rainfall event is collected and treated in accordance with Environment Protection Authority standards. Details of the system are to be submitted to Council prior to the commencement of construction works for the development.
46. Nutrient control measures shall be designed and installed in accordance with Council Policy EO.09 Best Practice Guidelines Nutrient Policy. Details are to be submitted to Council prior to the commencement of the development.

39. The recommendation of the Committee was adopted by the Council, and the consent was issued on 13 March 2000 on the recommended conditions (Exhibit G1 Tab 9).

40. On 8 March 2000, Council wrote to DLWC. That letter (Exhibit G1 Tab 7) included the following:

During the course of Council’s consideration of the application, reference was made to an advice received from the Department of Agriculture. In that advice the department made reference to the “The development is not complementary to the agricultural objectives for the zone. The development may have potentila for conflict with downstream water users and other users of Euloo road”.

Council requested that I bring this matter to your Department’s attention as it supports a long held view of this Council concerning the adequacy of underground water supplies on the Somersby Plateau. I do know that the Minister is currently reviewing a proposal to prepare comprehensive legislation to control and regulate surface and ground water in New South Wales.

41. As noted in an internal Council minute (ibid Tab 8), that reference to DLWC was made because of Council’s “long held view … concerning the adequacy of underground water supplies on the Somersby Plateau”.

42. DLWC responded to the Council’s stated concerns in a letter of 15 March 2000 (ibid Tab 8), which is of general import as there were then approximately 654 licensed bores in the relevant management area, 28 of which were specifically used for water bottling. DLWC observed (p 1):

The Department supports the need for accountable regulation within the water bottling industry. However, the Department would not want to discriminate against one particular type of activity and believes better regulation within other industries in the Mangrove Mountain area, including quarrying, poultry farms, citrus farms and nurseries, all of which have a high dependence on groundwater, is also required.

43. In the latter stage of the letter (p 2), DLWC observed:

If there are concerns that the activity will impact on the security of other water users in the area, then as a condition of consent it could be conditional upon the proponent to contract a suitable consultant to investigate the impact on adjacent water users. This may include carrying out a pump test and measuring the water table drawdown in neighbouring bores. If there are interference effects with neighbouring bores, then the proponent could either modify the extraction rate, or reimburse the cost for deepening the neighbours bore(s) such that the impacts are mitigated.

The Department attended the first Kulnura – Mangrove Mt Groundwater Management Committee on the 13 March 2000, established under the Water Reforms. The Committee’s work will focus on developing a groundwater management plan for the aquifer. The Committee comprises a number of representatives including a member of the Water Bottlers Association and Gosford Councillor – Mr Robert Bell. The formation of this committee should address council concerns related to groundwater management and regulatory procedures for water bottling.

44. DLWC also wrote to Pace on 31 May 2000 (Exhibit G1 Tab 10) in the following terms:

Please be advised that Gosford City Council planners requested the department’s advice as to whether the above proposal would be ‘Integrated’ under the Rivers and Foreshores Improvement Act, 1948.

After consultation with the department’s Legal Branch – Manager Legislation, and on the basis of the plans furnished by you to Gosford City Council, they were advised that the above proposal was not an ‘Integrated Development’ as it did not propose ‘excavation’ within the zone defined as protected lands under the act.

Other relevant events following consent

Construction Certificate

45. On 5 May 2000, Raybal applied on Pace’s behalf for a “building construction certificate”, and submitted plans prepared by Halcrow and dated 29 November 1999 (see Exhibit G2). The printed plan notes “silt and oil arrester added” 27 June 2000, and some further amendments were endorsed in red writing on 29 June 2000. (The red writing on the Halcrow plans is not clear from the documents at Exhibit G1 Tab 11, but is clear in Exhibit G2). Associated with the construction certificate papers (at Tab 11 of Exhibit G1) is a series of other plans submitted by Raybal, and by S W Healey & Associates, structural engineers.

46. Council issued that certificate on 3 July 2000 (Exhibit G1 Tab 11). The specification included the following in respect of excavations (sec 2.1 p 4):

Allow for excavation as shown on drawings.
Excavations shall be kept straight and plump (sic?) and foundations levelled well rammed and consolidated, properly benched and stepped where required.
Excavations shall be maintained with all the necessary timbering, walling and strutting as required.
Fill and consolidate all foundations and excavations when works are complete with the best of excavated materials.

47. Section 2.9 of that specification (p 5) dealt with sediment control as follows:

The builder shall allow for both short term and long term control of sediment from the site during construction. All in accordance with Engineering plans and in compliance with the general principles as set down in the publication ‘Urban Conservation and Sediment Control’
Published by the Soil Conservation Service.

48. The detailed specification also attended to drainage matters.

Challenging the consent

49. On 22 May 2000, Thompson Norrie, solicitors for Azzopardi, wrote to Pace inviting their company to acknowledge that the consent was invalid. “Any action on the part of your company or any other person to implement the development will oblige our clients to make application to the Land & Environment Court for orders restraining the development on the basis of the invalidity of the development consent”. Thompson Norrie also wrote to Council in respect of advice they provided to Azzopardi on the “effectiveness at law” of the consent granted to Pace (see G W Williams’ affidavit of 3 September 2001). Thompson Norrie asserted invalidity of the consent on the following grounds:

(a) Part of the proposed development will be located ‘at the top of the bank of a creek’ running through Parit Pty Ltd’s property;
(b) As part of the proposed development Parit Pty Ltd will ‘make an excavation’ and ‘will remove material’ within the meaning of s.22A of the Rivers and Foreshores Improvement Act 1948 (‘Improvement Act’);
(c) The ‘creek’ is Mooney Mooney Creek and is a river and protected waters within the meaning of Part 3A of the Improvement Act;
(d) The bank of the creek is protected land within the meaning of the Improvement Act;
(e) Pursuant to s.22B of the Improvement Act a permit is required for the development from the Ministerial Corporation;
(f) The proposed development is integrated development under s.91 of the Environmental Planning and Assessment Act (‘EPA Act’);
(g) In granting the consent the Council has not complied with s.91A of the EPA Act.

50. On 22 June 2000 Council replied in the following terms:

For your information, Council consulted with the Department of Land and Water Conservation in relation to the possibility of the development being an Integrated Development during the assessment of the application. Advice from this Department was that it was not an Integrated Development. It is understood that this advice was provided as a result of consultation with their legal branch.

A search of Council’s records indicates that the development consent has not been advertised, however, Council will undertake this in the near future.

Proceedings commenced

51. The original class 4 application was filed on 26 June 2000. When the construction certificate was issued and work commenced on the project, the class 4 application was amended to include the demolition prayer.

52. On 5 July 2000, Mr Halpin, Solicitor for Pace (Exhibit P13), forwarded to Thompson Norrie a copy of the DLWC letter of 31 May 2000, and invited Thompson Norrie to discontinue the proceedings.

The Part 3A Permit etc

53. On 19 July 2000, DLWC issued a permit under Part 3A of the R&FI Act (No.004862 – “the 3A permit” - Exhibit P14) covering “installation of nutrient tank, top dressing, installation of pipe, concrete ceiling (sic) access rd”. The works were described as follows:

· Excavation for nutrient/detention tank installation (located on plans) A

· Topdressing & grassing of dam wall with erosion/sediment controls (located on plans) (no filling proposed)

· Concrete ceiling of existing access road

· Minor excavation for outlet pipe from nutrient tank to existing dam.

54. The following special conditions were noted on the 3A permit:

· Erosion sediment controls shall be installed as shown on the plans

· Excavation shall be undertaken to minimise disturbance/works should be undertaken for the nutrient tank in a single day

· Any fill from the excavation shall be removed beyond 40m from the watercourse

· See also conditions 7-15, 17-32.

55. Annexed was the Halcrow Plan No.C1, noting the details of the silt and oil arrester pit, etc.

56. On 10 November 2000 Council wrote to Raybal indicating that it had no objections to the relocation of the silt and soil arrester pit as shown on a certain diagram, provided the relocation was required by DLWC (Exhibit P15).

57. On 2 March 2001, Council issued an “occupation certificate” to Raybal in respect of the subject works (Exhibit G1, Tab 12).

The proceedings continue

58. Points of Claim and Points of Defence were filed in these proceedings during August 2000.

59. On 8 May 2001, Halpin wrote to Thompson Norrie enclosing copies of the 3A permit, the occupation certificate, a DLWC letter of 18 October, an EPA letter of 10 November, and a DLWC letter of 17 November 2000. Halpin stated (Exhibit P16):

Given the Section 3A Permit and other approvals, you are again invited to discontinue these proceedings.

It is intended to rely upon this letter in making an application for costs (including costs on an indemnity basis) in these proceedings.

The relevant statutory provisons

60. The word “river” is defined in s 2 of the R&FI Act in the following 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 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.

61. The relevant Part of the R&FI Act is Part 3A, comprising sections 22A to 22L.

62. The following definitions appear in s 22A:

protected land means:

protected waters means a river, lake into or from which a river flows, coastal lake or lagoon (including any permanent or temporary channel between a coastal lake or lagoon and the sea).

63. Section 22B(1) provides:

A person must not:

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.

64. Section 91(1) of the EP&A Act provides that “integrated development” is “development (not being complying development) that, in order for it to be carried out, requires development consent and one or more of the” approvals listed. The list in s 91(1) includes a permit under Part 3A of the R&FI Act.

65. Section 91A(2) of the EP&A Act relevantly provides as follows:

Before granting development consent to an application for consent to carry out the development, the consent authority must, in accordance with the regulations, obtain from each relevant approval body the general terms of any approval proposed to be granted by the approval body in relation to the development. Nothing in this section requires the consent authority to obtain the general terms of any such approval if the consent authority determines to refuse to grant development consent.

66. The Land & Environment Court Act 1979 (“the Court Act”) relevantly provides as follows:

25B Orders for conditional validity of development consents

25C Orders validity of development consents
(1) On application by the Minister or any other consent authority for an order under this subsection on the grounds that the terms specified under section 25B have been substantially complied with and that it is not proposed that the relevant development consent be regranted with alterations, the Court may make an order:

25E Duty of Court
It is the duty of the Court to consider making an order under this Division instead of declaring or determining that a development consent to which this Division applies is invalid, whether in whole or in part.

The parties’ contentions

67. Azzopardi asserts:

(i) that the unnamed watercourse is a “river”, within the meaning of the R&FI Act;

(ii) that the water in the watercourse and also in the Pace dam is “ protected waters ” within the meaning of that Act;
(iii) that the Pace truck access road and stormwater drains fall within “ protected land ”, being not more than 40m from the top of a bank or shore of “ protected waters ”;

(iv) that the construction of the proposed road, drains etc on the Pace land involves works of excavation for the purposes of the R&FI Act;

(v) that, therefore, Part 4 of Division 5 of the EP&A Act renders the development “integrated development”, and (s 91A) makes it mandatory for the Council to consult with, and obtain from the Water Administration Ministerial Corporation (through DLWC) the general terms of any approval proposed to be granted under Part 3A;

(vi) that, as the DA was not so processed by Council as “integrated development”, the DC issued by Council is invalid; and

(vii) that the respondents are not entitled to the benefit of any exercise of the court’s discretion.

68. Council seeks the dismissal of the amended cl 4 application with costs, but, in the alternative, it suggests (and Pace agrees) that the appropriate relief, if Azzopardi is held to be entitled to relief, would be an order (pursuant to s 25B of Court Act) suspending the operation of the development consent, and specifying the following terms as validating that consent (First Respondent’s Points of Defence):

(ii) the Second Respondent obtain from the Department of Land and Water Conservation a licence for a drainage work pursuant to s.10 of the Water Act 1900.

69. Pace

alleges that:

(a) the truck access was constructed pursuant to the DC granted to DA 18881 on 6 September 1994, and so was, at all material times, in existence, but not sealed;

(b) those stormwater drains, which were not constructed pursuant to DC 18881, were substantially already in existence prior to the lodgement of DA5754;

(c) that the sealing of the road did not require excavation for the purposes of the R&FI Act, or any such permit; and

(d) that DC 5754 required, under condition 46, the construction of a nutrient tank, details of which had to be submitted prior to the commencement of work.

On 18 July 2000, Pace requested DLWC to attend the site to inspect the proposed site of the nutrient tank, and issue any Part 3A permit required. DLWC attended, and did so.

70. Pace also, in the event of Azzopardi succeeding, seeks the favourable exercise of the court’s discretion, generally on the following grounds:

1. The “warehouse” was not within “protected lands”.

2. The cost incurred in the project to date.

3. Azzopardi failed to seek to restrain the work before it was done (The builder was retained on 12 April, work commenced on 4 July 2000, prior to receipt of the class 4 application dated 3 July 2000, and continued through to about September 2000 – see Exhibit P9 and Exhibit P10).

4. Demolition would serve no practical purpose and would cause hardship.

5. No excavation was involved in the sealing of the road, and any excavation involved in implementing the DC was de minimis, and had no environmental impact.

6. DLWC was consulted before the grant of consent.

7. Pace sought and obtained the 3A permit for work which might require it.

8. The breach complained of by Azzopardi is of a technical nature.

Other evidence

71. During a visit to the Pace property in April/May 1999 the site for the warehouse was pointed out to Michael Azzopardi, and Pace told him “It will block out the water bottling factory for you and the noise” (affidavit 27 April 2001, pars 2-4).

72. They had a general discussion about the proposal, and Azzopardi allegedly expressed some concerns, suggesting that Pace “build it up the hill … across the creek”.

73. In July 2000 Michael Azzopardi observed “a concrete tank being placed into a hole dug by machinery close to the creek bank”. He took a photograph which is annexed to his affidavit of 27 April 2001. (Other photographs of the watercourse were taken by Michael Azzopardi on or about 2 June 2000 - Exhibit A1).

74. He complains of a large amount of fill being delivered just before Easter 2001, and placed at the southern end of the warehouse. Shortly afterwards there was a heavy rainfall event, and the next morning Mr Azzopardi noticed that the relevant dam on his property was “discoloured brown”, the brown being different from the colour he normally observed in his water. He says he observed that a quantity of silt had entered the dam and he was unable to use the water to be pumped or tanked for use in his chicken sheds because of the discolouration. He could not see any sediment traps below the area where the fill was placed.

75. He described the watercourse on the Pace land as “like a swampy creek” which “runs” at all except extremely dry times.

76. Expert evidence was given on behalf of Azzopardi by Christopher William Bratby, a consulting engineer of more than 20 years standing (see CV attached to his affidavit of 15 May 2001). In preparing his evidence he had access to the Raybal plans, the Halcrow plans, the DA, the Council report, and various other technical material, including the SEE and the Council’s file, and he carried out a visual inspection.

77. Bratby concluded that the dam shown on the drawings lodged with the DA was part of the watercourse that traverses the property shown in the aerial photograph and the topographical map. The watercourse flows from the north directly into the dam which drains directly into the continuation of the watercourse to the south which traverses the Azzopardi land. The dam is located on the watercourse “and as such is part of the watercourse”.

78. Approximately 95% of the proposed truck access road and approximately 50% of the proposed carpark at the south end of the development are within 40m of that dam. The installation of sumps and pipes would involve excavation of natural ground. “If there was already a road in the place of the proposed concrete road and if the sumps and pipes were not already in existence then their construction and installation would involve excavation”.

79. Bratby continued (par 4.4) that the siltation control fence, depicted in Halcrow plan C2 to be located west of the new truck access road, would be substantially within 40m of the dam. He conceded in his oral evidence that it would involve only the most minor excavation, as it is effectively just “tucked into” the topsoil.

80. The stormwater drainage pits and pipes depicted in Halcrow’s plan C3 are required to be constructed below the proposed truck access road pavement and so would require excavation. The Halcrow plans also show the dissipation structure constructed within the dam itself, and the construction of that structure below the existing ground level of the surface of the dam would also involve excavation.

81. Bratby observed what appeared to be a slightly excessive level of sediment in the upper level of Azzopardi’s upper dam. He also observed an area of unprotected gravel pavement adjacent to the south end of the new warehouse, visible from the Azzopardi land, which may have been susceptible to erosion with sediment being washed into the adjacent watercourse. However, he saw nothing to indicate that sediment had indeed washed into the watercourse.

82. He is familiar with the R&FI Act terminology, but used the word “watercourse” in a general professional sense. Although he has not been on the Pace land, he conceded that many of the things proposed and done in the relevant development are good engineering practice, including the silt control fence (Exhibit P10). He was not persuasive when tested with various photographs (e.g. Exhibit P3) during cross-examination by Mr Tomasetti.

83. Bratby concluded (report 15 May 2001, par 5):

(i) that the relevant development on the Pace land involved the making of excavations on land which is not more than 40m from the top of the bank of the unnamed watercourse, and

(ii) that sedimentation is occurring in the watercourse on the Azzopardi land and may be flowing from the Pace land.

84. Mr Bratby opined in his oral evidence that there was no environmental reason for the court to order demolition of any Pace works.

85. A site inspection was not arranged, but the court has had the benefit of the very extensive photographic evidence, including aerial photographs flown at various times since 1990, which show the relevant intensification of the use of the respective properties over time.

86. As submitted by Mr Tomasetti, I draw the inference, from the Halcrow plans submitted by Raybal, that, in compliance with the terms of consent, the DA applicant proposed to lay concrete on top of the then existing sub-base access road, and incorporate in the concrete sealing of that road various drainage features, as required by the conditions. However, it is possible that the sub-base road between the packing house and the dam may not have been substantially established as at 28 November 1997 (see rather unclear aerial photograph Exhibit A3), but I am satisfied that it probably was in existence from about 1995 (see Exhibit P14, Exhibit P17 and Exhibit G4).

The parties submissions

submits that:

1. the watercourse on the Pace land, is relevantly a “ river ”, such as to attract the relevant provisions of the R&FI Act.
2. excavation works were required within 40m of it for:

· the access road construction works

· sumps, pits, etc. beneath that road

· the dissipator

· the silt control fence, and

· the nutrient control tank

rendering the development, as proposed in the DA, “integrated development”.

3. Pace pre-empted the appropriate statutory processes (for “ integrated development ”) by incomplete disclosure of intention at the DA stage.
4. as a 3A permit was in fact required, and ultimately obtained, the DC is invalid because it was not assessed as “ integrated development ”.

submits that:

1. the Pace watercourse is an “ ephemeral ” drainage depression, with no real channel, banks, etc, and the court could not be satisfied, on the evidence, that it is relevantly a “ river ” for the purposes of the R&FI Act or the “ integrated development ” provisions of the EP&A Act, the burden being on Azzopardi to prove its challenge to the DC.
2. even if it were a river, Azzopardi has failed to satisfy the court, on the evidence, that any excavation relevant to the application of the two Acts was required. In this regard:
(a) the road was basically constructed in 1995 ( Exhibit P14 ), and required, in 2000-01, only sealing works, in which relevant drainage could be incorporated without excavation;
(b) silt fencing was mandated by conditions of consent and required only de minimis excavation; and
(c) the work on the nutrient control tank, if perhaps it did involve any excavation requiring a 3A permit in some circumstances, was not part of the initial DA, and the permit was applied for “ just in case ”.
3. if Azzopardi succeeds, the court should exercise its discretion in favour of Pace – the works were permissible, Azzopardi admits that any environmental harm done was “ not great ” (and see par 84), and any error was technical and not material.

89. The Council

relies on the underlying legislative intent of the “integrated development” provisions to simplify and coordinate inter-related approval processes in development assessment. Council took the precaution of referring the proposal to DLWC when on its face the DA did not indicate any need to “look more deeply” (e.g. the “integrated development” box on the DA cover was not ticked).

Conclusion

90. Essentially the court accepts the validity of all the submissions made on behalf of the respondents (see pars 29, 68, 69, 86, 88-90).

91. The court is not satisfied that the evidence makes out any of the necessary and fundamental contentions of the applicants (see par 87), either on the legal status of the watercourse, or the question of excavation.

92. The court, therefore, finds that:

(a) The watercourse on the Pace land, being more of a “swampy creek” (par 75), does not have the necessary physical attributes of a “river”, namely, defined banks and bed, to bring it within the purview of the R&FI Act: See Don Burke & Ors v Hawkesbury City Council & Ors [2001] NSWLEC 222, and the cases cited and discussed therein, at pars 53ff, especially pars 75 and 76. See also Zouki & Ors v Water Administration Ministerial Corporation [2001] NSWLEC 258.

(b) The Council in dealing with the DA contacted the “ relevant approval body ” under the R&FI Act (i.e. DLWC). In so doing it fulfilled its obligations under ss 91 and 91A of the EP&A Act, so as to render its DC valid . Somerville v Dalby & Ors (1990) 69 LGRA 422 at 428.

93. It was Council that decided a nutrient tank was needed. Pace complied, and, alerted by the allegations made on Azzopadi’s behalf, sought and obtained the 3A permit. The fact that the process of issuing that 3A permit may have assumed that the watercourse was such as to require it is not conclusive that it was, and Azzopardi has not discharged the onus of establishing the elements of “river”.

94. Lest it be considered that I am wrong in these conclusions, I should indicate that, had I been satisfied Azzopardi had made out its case, I would have exercised the court’s discretion in favour of the respondents. I accept Mr Tomasetti’s submissions on the question of discretion (see par 70 and item 3 in par 88). The situation of the Council and Pace satisfies, in my view, without going into detail, all the relevant principles laid down by the NSW Court of Appeal in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-342, ACR Trading Pty Ltd & Anor v Fat-Sel Pty Ltd & Anor (1987) 11 NSWLR 67 at 80-84, and Tynan & Ors v Meharg & Anor (1998) 101 LGERA 255 at 259-60, and applied by this court in, for example, Somerville v Dalby (see 433-4).

95. I, therefore, conclude that the class 4 application should be dismissed.

Costs

96. In those circumstances, the applicant should, in the normal course, be ordered to pay the respondents’ costs. The question of costs was not fully argued before me at the hearing, but Mr Tomasetti inferred that his client, if successful, may seek costs on an indemnity basis. I will, therefore, make the usual order as to costs, but stay it for 21 days, in case any such application is to be pursued.

Orders

97. The formal orders of the court will be:

1. The amended class 4 application is dismissed.

2. The applicants are ordered to pay the respondents’ costs on a party-party basis, as agreed, or as assessed according to law.

3. Order 2 is stayed for 21 days.

4. All exhibits may be returned.