Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Limited (No 2), Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Limited - [2010] NSWLEC 79

No judgment structure available for this case.

Reported Decision: 176 LGERA 356

Land and Environment Court

of New South Wales

CITATION: Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Limited (No 2), Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Limited [2010] NSWLEC 79

PARTIES: APPLICANT
Baulkham Hills Shire Council
RESPONDENT
Ko-veda Holiday Park Estate Limited

FILE NUMBER(S): 40625 of 2007; 41019 of 2009

CORAM: Pain J

KEY ISSUES:
DISCRETION :- exercise of discretion to make declarations and orders where Court of Appeal finds breach of EP&A Act - breach not technical - whether Court should order removal of eleven cabins - whether Court should order implementation of different vegetation management plan - whether Council delayed in commencing civil enforcement proceedings
ESTOPPEL:- whether Anshun estoppel applies in second proceedings to prevent raising of new issue which could have been raised in closely related proceedings the subject of an appeal

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 4, s 96, s 124
Local Government Act 1993 s 68
Rivers and Foreshores Improvement Act 1948 Pt 3A
Rural Fires Act 1997 s100B

CASES CITED: ACR Trading Pty Ltd v Fat-sel Pty Ltd (1987) 11 NSWLR 67
Anthony Developments Pty Ltd v Marsden [1999] NSWSC 472; (1999) 29 MVR 262
Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 29 LGRA 323
Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd & Anor [2008] NSWLEC 181
Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 160
Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (No 2) [2009] NSWCA 310
Dates v Karuah Local Aboriginal Land Council & Ors [2009] NSWLEC 221
Day v Pinglen Pty Ltd [1981] HCA 23; (1981) 148 CLR 289
Denis Gelle Pty Ltd and Anor v Baulkham Hills Shire Council [2001] NSWLEC 229
Henderson v Henderson (1843) 67 ER 313
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589
Rahme v Commonwealth Bank of Australia (Court of Appeal (NSW), 20 December 1991, unreported)
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Zavodnyik v Alex Constructions Pty Ltd [2005] NSWCA 438; (2005) 67 NSWLR 457

DATES OF HEARING: 9 February 2010
10 February 2010
11 February 2010
12 February 2010
15 February 2010

DATE OF JUDGMENT:
31 May 2010

LEGAL REPRESENTATIVES: APPLICANT
Mr A Galasso SC with Mr M Fraser
SOLICITOR
The Hills Shire Council
RESPONDENT
Mr T Howard
SOLICITOR
Hones La Hood

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

31 May 2010

40625 of 2007 Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Limited (No 2)
41019 of 2009 Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Limited
JUDGMENT

1 Her Honour: The Applicant Baulkham Hills Shire Council sought declarations and orders to have two cabins (Lots 40 and 47) on the Respondent’s land removed (proceedings No 40625 of 2007) as their placement was argued to be in breach of a development consent granted by the Council in 2003 (the cabins consent). I held that there was no breach of the cabins consent in Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd & Anor [2008] NSWLEC 181 (Ko-veda No 1) due in large part to my finding that the construction certificate required by the cabins consent was validly issued.

2 On appeal from my decision, in Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA160; (2009) 167 LGERA 160 Tobias JA (Young JA and Bergin CJ in Equity agreeing) held that there was a breach of the Environmental Planning and Assessment Act 1979 (the EP&A Act) because of the failure to comply with several conditions of the cabins consent namely conditions 1, 6, 30 and 41. His Honour also held there was no statutory basis under the EP&A Act for the construction certificate to be required in the cabins consent. The Court of Appeal made a declaration and orders on 1 October 2009 in Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (No 2) [2009] NSWCA 310 remitting the matter to this Court to determine what relief is appropriate in light of these breaches of development consent. I am determining the appropriate relief which should be ordered in these remitter proceedings.

3 For completeness I note that the Second Respondent in Ko-veda No 1, the private certifier, has no further role in the proceedings following the Court of Appeal’s decision in relation to the construction certificate.

4 The entirety of the cabin sites referred to are located within Lot D DP 384298 known as the Ko-Veda Holiday Park Estate located on River Road, Wisemans Ferry. Since my decision in Ko-veda No 1 the Respondent has placed nine additional cabins on its land (lots 37, 38, 39, 41, 42, 43, 44, 45 and 46) pursuant to the cabins consent. These are the subject of the second proceedings No 41019 of 2009. On 2 December 2009 the Respondent admitted by letter to the Council’s solicitor that conditions 1, 6, 30 and 41 of the development consent had been contravened as found by the Court of Appeal in relation to the nine cabins. On 4 February 2010 I ordered that the proceedings be heard together as the legal issues concerning the nine cabins were identical to those concerning the two cabins in light of the quite appropriate admissions made by the Respondent.

5 On the first day of the hearing the Respondent sought to raise a new issue not considered by me in Ko-veda No 1 or the Court of Appeal concerning the operation of condition 7 of the cabins consent. This new issue was pressed as a matter relevant to discretion in relation to the two cabins in the first proceedings, the Respondent accepting it was too late to raise it as a substantive ground. It was pressed as a substantive issue concerning construction of the cabins consent in relation to the nine cabins in the second proceedings. I consider this issue further below at par 76 onwards.

Background

6 A summary of the relevant background as identified in Ko-veda No 1 is that the Respondent’s predecessor in title to the land (Dunkview Pty Ltd) applied for development consent for the transfer of 47 cabins from one caravan park to the new site (lot D DP584298) on the Hawkesbury River at Wisemans Ferry. This followed the refusal of development consent for a similar application in Denis Gelle Pty Ltd and Anor v Baulkham Hills Shire Council [2001] NSWLEC 229 (Denis Gelle) by Pearlman J, on the primary basis that the proposed vegetation screening the cabins from the river was not adequate. Her Honour cautioned that planting while cabins were in place and occupied could lead to interference with the establishment of the vegetation at [56].

7 Denis Gelle dealt with an appeal against the Council’s refusal of a development application for fifty short term sites for cabins and on-site sewage treatment works (proceedings No 11164 of 2000) and an appeal against the Council’s refusal of a development application for construction of a rock wall (the rock wall application) along approximately 230m of the bank of the Hawkesbury River (proceedings No 11163 of 2000). The rock wall was proposed to be built along that part of the Hawkesbury River in front of stages 1 and 2 of the proposed cabins. The rock wall was given development consent by this Court on 25 October 2001 in Denis Gelle.

8 The cabins consent was granted by the Council on 1 August 2003 for the transfer of 47 cabins to occur in four stages. All eleven cabins in issue have been placed in stage 1. Stage 1 consists of 12 cabin lots. The environmental impact statement (EIS) lodged with the development application and referred to in condition 1 contained a vegetation management plan (VMP) prepared by Ecohort (the Ecohort VMP). It proposed the introduction of several specified native vegetation communities in front of each stage of the development. This vegetation was to be in place for two years before the introduction of any cabins to enable adequate screening of the cabins from the river before cabins were installed and occupied. This is one of the objectives stated in the EIS lodged with the cabins consent.

9 Between October 2003 and February 2004 the Department of Infrastructure, Planning and Natural Resources (DIPNR) had discussions with Mr Madsen, the Respondent’s director, during the Pt 3A permit approval process under the Rivers and Foreshores Improvement Act 1948 (now repealed) required for that rock wall. Included in the Pt 3A application for the rock wall was a VMP for part of the same foreshore area of land in front of the cabins as was the subject of the cabins consent. A Pt 3A permit was issued on 2 October 2003 for the rock wall. The rock wall permit applies to 230m of the riverbank which equates to the riparian/river frontage of stages 1 and 2 of the cabins consent. Part of the permit conditions attached a VMP that was essentially the same as the Ecohort VMP approved as part of the cabins consent. There were subsequent negotiations to amend that VMP initiated by the Respondent’s director Mr Madsen and adviser Mr Gelle. DIPNR issued an amended Pt 3A permit on 5 May 2004 with an amended VMP (the DIPNR VMP) which changed the planting regime for an 18m strip along the foreshore area in front of stages 1 and 2 and differed from the Ecohort VMP approved as part of the cabins consent.

10 The Respondent took steps to implement the cabins consent presumably as it was understood to apply. The DIPNR VMP is the vegetation regime that has been planted in the foreshore area in front of stages 1 and 2, except for a row of exotic Canary Island palms which has been planted along the foreshore at regular intervals in stages 1 to 4. The palms do not appear on any of the VMPs in evidence before me in the original or these proceedings. The DIPNR VMP was planted in July 2005. The Respondent obtained a construction certificate from a private certifier on 20 November 2006 as the cabins consent required. Two cabins were placed on lots 40 and 47 in April 2008 after the construction certificate was obtained. In Ko-veda No 1 I held that the construction certificate had been validly issued and consequently there were no breaches of the cabins consent, inter alia. The nine cabins the subject of the second proceedings (matter No 41019 of 2009) were installed at various times after Ko-veda No 1 was delivered.

11 Nothing I determined in these proceedings will impact legally on the implementation of stages 3 and 4 in accordance with the cabins consent.

Court of Appeal decision

12 The Court of Appeal held that the construction certificate issued by the certifier was not required under the EP&A Act because the matters he was certifying were not matters for which a construction certificate was required. A large part of the legal case argued at first instance therefore fell away. Conditions of the cabins consent found to be breached by the Court of Appeal were as follows:

Condition 1 – Development in accordance with submitted plans
The development being carried out substantially in accordance with Development Application No 2430/03/HE and accompanying Environmental Impact Statement (EIS) prepared by Integrated Site Design dated June 2002, and all supplementary and additional information received by Council, except where amended by the following conditions of consent.
The approval allows the relocation of 47 short-term sites from Lot 5 DP 729341 and Lot 1 DP 783552 to Lot D.

Condition 6 – Compliance with Department of Infrastructure, Planning and Natural Resources Requirements
Compliance with the requirements of the NSW Department of Infrastructure, Planning and Natural Resources attached as Appendix A to this consent and dated 26 June 2003, through all stages of the development. (the General Terms of Approval )

Condition 30 – Completion of Landscape Works

Upon completion of each stage of landscape works, the applicant/developer is to arrange an inspection of the landscape works undertaken with the appropriate Officers from Council and the Department of Sustainable Natural Resources. The installation of each subsequent stage of cabins cannot proceed until the applicant/developer is advised in writing by both Council and the Department of Sustainable Natural Resources that the landscape works have been completed satisfactorily. Should rectification works or additional landscape works be required, the applicant/developer will be advised as such and a subsequent inspection will be undertaken by the parties. The satisfactory completion of landscape works is required prior to the issue of a Building Construction Certificate for each stage of the development.

Condition 41 – Part 3A permit from Department of Infrastructure, Planning and Natural Resources

No works are to commence on site until such time as a Part 3A permit required under the provisions of the Rivers and Foreshores Improvement Act 1948 has been issued by the Department of Sustainable Natural Resources.

13 The failure identified by the Court of Appeal in relation to condition 1 was that the Ecohort VMP approved as part of the EIS referred to in condition 1 was not implemented. Condition 6 contemplated that a Pt 3A permit for the excavation of footings of any of the cabins was to be obtained prior to the cabins being installed. The failure to obtain a Pt 3A permit and approval of a VMP required by cl 19 of the general terms of approval issued by DIPNR referred to in condition 6 amounted to non-compliance with the requirements of DIPNR. This constituted a breach of condition 6. At [80] Tobias JA stated:

… once a VMP is approved pursuant to a Part 3A permit issued in accordance with GTA which form part of a development consent, although it is open to DIPNR to modify or vary that VMP for the purposes of the RFI Act, it has no power to unilaterally modify that VMP for the purposes of the EP&A Act which can only be achieved by the Council, or the Land and Environment Court on appeal, approving such a modification pursuant to s 96 of that Act.

14 At [115(d)] Tobias JA held that no Pt 3A permit as required by condition 41 had been issued prior to the installation of the cabins, and draws specific attention to the breach of condition 41 with respect to the lack of a Pt 3A permit prior to the excavation works for the footings of the cabins. An important matter to note is that the Pt 3A permit for the rock wall is not the Pt 3A permit to which condition 41 refers.

15 Tobias JA at [109] stated that there had been two breaches of condition 30:

The first was the admitted failure by the First Respondent to arrange an inspection of the landscape works in fact carried out as required by the first sentence of the condition. The second was that the two cabins were installed before the written advice referred to in the second sentence was received.

Given that the landscape works that were necessary for Council satisfaction under condition 30 were those anticipated in the Ecohort VMP, and that VMP was not implemented, that constituted a breach of condition 1 (Tobias JA at [85]).

Relief sought by the parties

16 The Council seeks the following relief in its Further Amended Class 4 Application in relation to the two cabins the subject of matter No 40625 of 2007:

1. Declaration that the two cabins installed by the first respondent on Lots 40 and 47 on land known as 2868 River Road, Wisemans Ferry, comprising Folio Identifier 1102/1061450 and Folio Identifier 1201/1076039 were installed in breach of Conditions 1, 6, 30 and 41 of Development Consent No 2430/2003/HE issued by the appellant to the first respondent and dated 1 August 2003;

2. An Order that the Respondent remove, or procure the removal of, the cabin and structures erected on cabin Lots 40 and 47 on land known as 2868 River Road, Wisemans Ferry comprising F/1 1102/1061450 and F/I 1201/1076039 (“the Caravan Park”).

3. An Order that the Respondent by itself, its servants and/or agents take all steps necessary to ensure that the cabins located on cabin Lots 40 and 47 not be occupied prior to their removal as above referred.

4. If the Court declines to make the Order sought in 2 and 3 hereof, then in the alternative to those Orders, an Order that the Respondent be restrained from permitting the occupation of, and procure the restraint of occupation of, the cabins on Lots 40 and 47 until the installation and growth of vegetation and landscaping is in accordance with condition 1 of the Development Consent, and the respondent has complied with conditions 6, 30 and 41 of the Development Consent.

4A. If the Court declines to make the Order sought in 4 hereof, in the alternative, an Order that the Respondent take such steps as necessary to install, grow and maintain vegetation and landscaping in compliance with condition 1 of the Development Consent within such time and in such manner as the Court may specify.

5. An Order that the Respondent be restrained from installing any further cabins in relation to the Development Consent until the installation and growth of vegetation and landscaping is in accordance with condition 1 of the Development Consent, and the respondent has complied with conditions 6, 30 and 41 of the Development consent.

6. Such further or other Order(s) or alternative relief as this Court deems appropriate in the circumstances.

…

17 Similar orders are sought in relation to the nine cabins the subject of the second proceedings No 41019 of 2009.

18 The Respondent submits that no relief ought be granted in the particular circumstances of this case. The Respondent seeks the following orders in the alternative:

1. Within three months from the date of this order the Respondent is to plant vegetation in the riverfront land located between the Hawkesbury River and cabin lots 47 to 36 inclusive on the land comprising Lot D DP 783552 in accordance with the landscape plan prepared by Conzept Landscape Architects dated February 2008 being drawing #LPDA08-240/1 (“the Conzept Plan).)

2. The planting of the vegetation as required under paragraph 1 above is to be undertaken under the supervision of a suitably qualified landscape architect/consultant and or bush regenerator.

3. Upon completion of the planting of the said vegetation, the Respondent is to arrange an inspection of the landscape works in accordance with the obligation in the first sentence of condition 30 of the cabins consent, whereupon the obligations under the remainder of condition 30 of the cabins development consent will apply, except the obligation set out in the last sentence of condition 30.

4. The Respondent must maintain the vegetation during a landscape maintenance period of two years in accordance with the Landscape Maintenance Schedule set out on the Conzept Plan, save that obligation in the said Landscape Maintenance Schedule expressed in terms of “ensuring that all plants and planting areas experience the optimum growing conditions and are in excellent appearance at all times” is amended by this order so as to be an obligation that the respondent take reasonable steps with the objective of ensuring that all plants and planting areas experience the optimum growing conditions and are in excellent appearance at all times.

Chronology

19 A lengthy chronology of events, including those summarised above in background and Ko-veda No 1 at [22] follows. Bold text refers to court decisions and key decisions by regulatory authorities such as the Council and DIPNR.

(i) In Denis Gelle (proceedings No. 11164 of 2000) the Court refused development consent for relocation of caravan sites from one part of the existing caravan park to the location the subject of these proceedings. Refusal was largely because the proposed vegetative screening of the caravan sites was inappropriate and there was concern about its maintenance .

(ii) 25 October 2001 , also in Denis Gelle (relating to proceedings No. 11163 of 2000) the Court approved a development application for construction of a rock wall along approximately 230m of the bank of the Hawkesbury River on the Northern part of Lot D in DP 3842968, (the rock wall consent).
(iii) 29 May 2002, the First Respondent’s predecessor as owner of the holiday park, Dunkview Pty Ltd, sought owners’ consent from DIPNR for submission of the development application for the relocation and installation of the 47 cabins
(iv) June 2002, DIPNR sought further information and a copy of the EIS was provided to it.
(v) 13 January 2003, DIPNR provided owner’s consent for the cabins consent.
(vi) 17 January 2003, the development application and EIS was lodged with the Council.
(vii) 18 February 2003, DIPNR requested further information about the proposal.
(viii) 23 April 2003, An application was lodged with DIPNR for a Pt 3A permit for works associated with the construction of 230m river bank rock scour protection on northern part of Lot D.
(ix) 26 June 2003, DIPNR issues its general terms of agreement (GTA) in respect of the cabins application.
(x) 12 August 2003, Ms Kristine McKenzie of the Council sent a copy of the cabins consent to DIPNR.
(xi) 15 August 2003, the Council issued the cabins consent for relocation and installation of 47 cabins within the holiday park from Lot 5 in DP 729341 and Lot 1 in DP 783552 to Lot D in DP 3842968.
(xii) 29 September 2003, Mr Benny Madsen (director of the First Respondent) and Mr Denis Gelle attend in conference with Ms Sharelle Payne, Senior Natural Resource Officer, and Mr El-Chamy, Resource Access Manager of DIPNR. Parties discuss the requirements of the VMP, with particular regard to the planting densities and the width of the riparian zone landscaping works.
(xiii) 30 September 2003, Dunkview Pty Ltd paid to DIPNR a bond of $58,135 in the form of bank guarantee for construction of earthworks associated with the “rock wall”.
(xiv) 2 October 2003, DIPNR issued a Pt 3A permit pursuant to the RFI Act to Dunkview Pty Ltd, with a permit expiry date of 20 October 2004. Development consent identified on the permit by the DA number of the rock wall consent.
(xv) 9 December 2003, Ms Payne and Ms Nagel of DIPNR carried out inspection of constructed rock wall at the holiday park. Mr Madsen was present. The parties discussed the requirements of the VMP and Ms Payne refers Mr Madsen to the Haige Park, Canberra model.
(xvi) 11 February 2004, DIPNR wrote to Dunkview Pty Ltd regarding the possibility of modifying the VMP, and required objectives.
(xvii) 10 March 2004, DIPNR wrote to Dunkview Pty Ltd regarding review of the VMP by DIPNR and issues to be incorporated into the amended VMP.
(xviii) 5 May 2004, DIPNR amended the Pt 3A permit by adopting the amended VMP prepared by Mr Edgar Freimanis which incorporated a revised Figure 6 McIntyre drawing (related to the same area of land as that for cabins consent stages 1 and 2 only).
(xix) 22 April 2005, the Council approved a garage to the cabin on lot 47 pursuant to the Local Government Act 1993 (the LG Act).
(xx) 26 April 2005, Mr Robert Denis of the Council met with Mr Madsen regarding on-site sewerage management system at the holiday park.
(xxi) 27 April 2005, the First Respondent sent a letter to Mr Denis of the Council regarding installation of two new cabins to replace old cabins upon the holiday park.
(xxii) 6 May 2005, Mr Denis sent a letter to the First Respondent regarding installation of new cabins and the sewerage management system. The letter provided that the existing septic tank could be temporarily connected to two new cabins.
(xxiii) July 2005, the First Respondent carried out landscaping works in accordance with the amended VMP, under the supervision of Mr Freimanis.
(xxiv) August 2005, Ms Payne and Mr Schroo attended the holiday park to inspect the site and determine whether a security deposit (or part thereof) should be refunded to Dunkview Pty Ltd.
(xxv) 8 August 2005, Council issued approval pursuant to s 68 of the LG Act to install an on-site sewerage management system at the holiday park.
(xxvi) 10 August 2005, DIPNR wrote to Dunkview Pty Ltd regarding potential refund of security bond.
(xxvii) August 2005, landscape works inspected by Hans Schroo of DIPNR.
(xxviii) 25 October 2006, The on-site sewerage management system was installed, but not connected by piping to the new cabin sites and not commissioned
(xxix) 2 November 2006, Mr Madsen made an application for a CC to Mr Norris to install 12 cabins in accordance with stage 1 of the development approved pursuant to the cabins consent.
(xxx) 20 November 2006, Mr Norris issued CC No. PC22506 for the relocation of the 12 cabins within stage 1.
(xxxi) 24 November 2006, Mr Norris lodged with the Council (together with the CC for the cabins consent) a Notice of Commencement of Building Works and Appointment of Principal Certifying Authority identifying the date on which works were to commence as 29 November 2006.
(xxxii) Between 2004 and early 2007, Mr Freimanis carried out inspections of landscaping works.
(xxxiii) 21 February 2007, DIPNR received from Dunkview Pty Ltd a replacement bond of $7,920 and DIPNR returned to Dunkview Pty Ltd the Bank Guarantee of $58,135.
(xxxiv) 21 February 2007, Mr Madsen applied to renew the Pt 3A permit, which leave was granted.
(xxxv) 30 March 2007, Ms McKenzie of the Council telephones and leaves message for Mr Madsen after a request from Ms Mitchell to telephone Mr Madsen, regarding inspection of landscaping.
(xxxvi) In or around late March 2007, Ms Mitchell of the Council received a telephone call from Mr Madsen regarding inspection of landscaping and approval to erect cabins.
(xxxvii) May 2007, Applications for Flood Liable Caravan Park Installations for garages received by Council for lots 40, 41, 42, 44 and 45.
(xxxviii) 31 August 2007, ‘Final Report for Revegetation Works on the Hawkesbury River at Ko-Veda Holiday Park, 2868 River Road, Wisemans Ferry’ dated 30 August 2007, prepared by Mr Freimanis sent to DIPNR.

Additional events relevant to this phase of the proceedings can be added:
(xxxix) December 2006, March 2007, cabins for lots 40 and 47 delivered and installed
(xl) 4 July 2007, proceedings 07/40625 commenced (two cabins)
(xli) 26-29 February 2008, (part) hearing before Pain J
(xlii) 6-7 March 2008, (further) hearing before Pain J
(xliii) 2 June 2008, placement of third cabin on lot 46 (installed after judgment)
(xliv) 4 July 2008, Ko-veda No 1 judgment Pain J
(xlv) 15 July 2008, letter from Council to Respondent’s solicitors advising appeal proposed to be lodged
(xlvi) 22 July 2008, Site 43 Site Agreement
(xlvii) 30 July 2008, Court of Appeal proceedings commenced and served
(xlviii) Within the period 22 April 2007 to 1 April 2009 a total of ten site agreements for cabin lot occupation were entered between the Respondent and various third parties for eleven cabin lots inclusive of the cabin lots mentioned above in (xl), (xliv), (xlvii)
(xlix) 23-30 April 2009, hearing in Court of Appeal
(l) 29 June 2009, judgment delivered by Court of Appeal
(li) 1 October 2009, declaration and order to remit made by Court of Appeal.

Evidence

20 Both parties referred to evidence given in the first hearing before me. This included the affidavits of Ms Sharelle Payne, DIPNR officer, dated 27 June 2007 and 21 December 2007. Her evidence is summarised in Ko-veda No 1 at [26]-[33]. Of particular relevance are the discussions with Mr Madsen and his advisers and officers of DIPNR during the negotiations for an amended VMP as part of the rock wall Pt 3A permit process.

21 Mr Gelle, adviser to the Respondent, swore an affidavit dated 6 November 2007 and this is summarised in Ko-veda No 1 at [46]-[48]. He attested to conversations with DIPNR officers in which he agreed that he was seeking to have less vegetation in front of the cabins. He also aimed to have only one VMP for both the cabins consent and the rock wall consent. He attested to meetings with Mr Zwicker of the Council as part of this process in which Mr Zwicker said he would defer to DIPNR in relation to the amount of vegetation.

22 Mr Madsen swore three affidavits read at the first hearing dated 2 November 2007, 26 and 27 February 2008. These are summarised at [49]-[55] of Ko-veda No 1. He agreed that after September 2003 he set about exploring possibilities for changing the landscaping in front of the cabins along the river. He told Ms Payne of DIPNR that the landscaping was too onerous and he sought to have the VMP approved as part of the cabins consent changed in the Pt 3A permit process for the rock wall.

23 Mr Freimanis, a landscape consultant and director of Ecohort Pty Ltd, swore an affidavit dated 5 November 2007 and gave oral evidence. This is summarised at [65]-[66] of Ko-veda No 1. He stated that the amended VMP approved as part of the rock wall Pt 3A permit process effectively reversed the placement of dense vegetation as indicated on the original Ecohort VMP approved with the cabins consent.

24 In these proceedings the Council relied on an affidavit of Ms Julie Scharfe, Council officer, sworn 3 February 2010 stating that former Baulkham Hills Shire (now known as the Hills Shire) Council worker, Ron Zwicker, has not been employed by the Council since 8 February 2002. This evidence contradicts the evidence of Mr Gelle in the first proceedings about the period in which he had discussions with Mr Zwicker as a Council officer at that time.

25 The Respondent relied on affidavits of Paul Elphick sworn 13 November 2009 and 8 February 2010 stating that Mr Elphick is a quantity surveyor who was instructed by the Respondent’s solicitor to inspect the property known as Ko-veda Holiday Park, and prepare a report on the costing for the disconnection, removal and relocation of cabins. The latter affidavit contains Mr Elphick’s revised summary of costs for the disconnection, removal and relocation of eleven cabins. These include the costs of preparation of temporary sites as well as the projected re-assembly of cabins back to the original sites. The detailed cost estimate by Mr Elphick of $91,885.20 per cabin provides a total estimate of $1,010,737.20 inclusive of GST. Mr Elphick also gave oral evidence stating that the total cost estimate was based on a full infrastructure and service utility establishment and utilities connections for each cabin at the temporary-relocation sites suitable for habitation. He stated that if the cabins were removed from the existing sites for storage purposes only without habitation and without infrastructure and service utility connections, the total cost estimate would reduce by approximately half.

26 Mr Madsen swore an affidavit dated 18 November 2009 stating that landscaping works commenced in about July 2005 for a cost of around $58,000, and that cabins on lots 40 and 47 were delivered and installed in about April 2007 and occupied shortly after that time. Annexed to the affidavit are copies of two site agreements with third parties for lots 40 and 47, each dated and commencing 1 April 2007 for a five year term.

27 An additional affidavit of Benny Madsen sworn 9 February 2010 details that all 11 cabins on lots 36-47 have been sold by Ko-veda to third parties. Site agreements for all eleven lots are annexed to the affidavit.

28 Mr Madsen also gave oral evidence and was cross-examined. He stated that the problem with the Ecohort VMP was that it limited access to the river and obstructed cabin views to the river. He described how he sells cabins to third parties for $115,000 (and cabins with a carport for $195,000), and then separately leases cabin sites for $111 per week plus 5.5 per cent GST. An additional charge of $8.50 per site per week is also charged for gas, electricity and sewer utilities. Mr Madsen denied he made any profit from the sale of cabins. Mr Madsen also denied he made any profit from site leasing, and stated that there were extra costs involved in transporting cabins and concrete foundation works, in the establishment and maintenance of infrastructure for each site including gas, electricity and sewer utilities and also grounds keeping costs. Mr Madsen later stated that he only generates a very marginal profit from the sale of each cabin. He stated there were no more cabins on order.

29 A bundle of correspondence between the parties’ solicitors (exhibit D) was tendered. The following were referred to:

VMP

30 There was extensive evidence concerning VMPs from two expert landscape planners. Ms Sonter prepared two affidavits dated 10 December 2009 and 5 February 2010 on behalf of the Respondent. Ms Lucas, the Council’s landscape planner, prepared an affidavit sworn 12 January 2010. The evidence discussed three VMPs. The Ecohort VMP in the EIS in the cabins consent and the DIPNR VMP approved as part of the rock wall Pt 3A permit process, which has been implemented on the riverbank in front of stages 1 and 2, were the subject of the first proceedings. A further VMP, the Conzept plan is proposed by the Respondent as an alternative to the Ecohort VMP in this phase of the proceedings, if the Court is minded to require further planting. That plan was prepared by another consultant who did not give evidence.

31 Ms Lucas inspected stage 1 on 13 October 2009 and observed four rows of casuarinas planted at 5m spacings, which have been crown lifted, meaning the lower branches have been removed. Concrete hard stand areas have been extended in from of some cabins resulting in removal of part of one of the rows of casuarinas. No other vegetation is located between the rows of casuarinas apart from mowed non-native grass. There is one densely planted square area of vegetation approximately 11.5m by 11.5m within stage 1 consisting of native and exotic plants. There is a row of Canary Island date palms approximately 2m in height, which are not endemic. There is no dedicated pathway to the riverbank in stage 1. In stage 2, the Canary Island date palm row continues, there is another densely planted square of vegetation about 11.5m by 11.5m. In her opinion the planting she observed would not provide an effective vegetative screen of the cabins from the river. She considered the planting reflected the DIPNR VMP except that the densely planted squares did not satisfy the quantities of suggested planting densities tabled in that VMP.

32 She determined from her inspection that the Ecohort VMP had the opposite planting and landscape densities to the DIPNR VMP. The Ecohort VMP requires dense landscaping and planting between the cabins and the river and also requires planting between the access ways and behind at the rear of the cabins, and boundary planting for screening from River Road. It has restricted grassed viewing areas along the front of the riverbank at the forefront of the densely planted area. The viewing areas do not allow views from the river to the cabins and vice versa. She considered the differences between the plantings in each plan were substantial. The existing dense pockets are dense river flat forest treatment but these pockets are small compared to the Ecohort VMP. The Canary Island date palms are prominent and are contrary to the intention to create a river flat forest typical of the area.

33 Ms Lucas also assessed the Conzept plan in her affidavit. She considered it provides more planting than the existing situation but less than the Ecohort VMP. The proposed viewing areas allow views from the cabins to the river and vice versa. The four densely planted squares of vegetation observed are intended to be retained in the Conzept plan as “dense river flat forest treatment”. The balance of landscaping on the river is described as “riverbank casuarina treatment”. It contemplates a native grass strip to the rock wall which will consist mostly of native grasses planted as viro-cells which are smaller than tubestock. This plan will leave large unvegetated areas between the riverbank and the cabins, between and behind the cabins.

34 Compared to the Ecohort VMP, the Conzept plan has less screening as there are numerous dedicated viewing areas allowing views from the cabins to the river and vice versa. The Conzept plan vegetation treatment is less dense than the Ecohort VMP, and there are more plants required under the Ecohort VMP. The Conzept plan does not provide a coastal river flat forest treatment, has pathways inconsistent with the Ecohort VMP, and provides for the Canary Island date palms to be retained.

35 Ms Sonter’s report dated 10 December 2009 was tendered. She provided her opinion about the degree to which the current planting provides screening from the river to minimise the visual impact of the cabins from the river, whether the Conzept plan will provide screening of the cabins from the river and the extent the Conzept plan will achieve the objectives of the 2002 EIS. Ms Sonter considered that over time the existing planting consisting of the Canary Island date palms and the casuarinas will become more spread and hide the roof forms of the cabins. Lower walls of the cabins will become more visible but proposed hedge planting will provide additional screening.

36 In her second affidavit Ms Sonter clarified that the existing planting does not provide the same density of screening as the Ecohort VMP. Nor will it provide a total screening of the cabins from the water. She calculates the number of different types of plants (trees, shrubs, climbers, ground covers, grasses) in the Ecohort VMP and the Conzept plan.

37 The Conzept plan will provide a dense vegetated screen between the proposed cabins and the water. She considered this would achieve the objectives identified in the EIS approved in the cabins consent and also the decision in Denis Gelle.

38 Ms Sonter considered the plantings proposed in the Conzept plan and the Ecohort VMP will each form a dense screen of indigenous vegetation between the cabins and the river. The band of planting adjacent to the riverbank in both plans is generally consistent in width and length. The setback of cabins in the Conzept plan is 28m and 30m in the Ecohort VMP. Both plans have four different planting regimes in the riverbank revegetation zone. The species selected in the Conzept plan are consistent with the species identified in the Ecohort VMP with a lesser palette of species in the former. Planting densities differ between the plans with the major planting treatment in the Conzept plan, the riverbank casuarina treatment, having double the density of trees and shrubs compared to the Ecohort VMP dense river flat forest treatment. The mix of species in each treatment varies between the plans.

39 The landscape planners gave oral evidence concurrently about the approximate number of plants proposed for the stage 1 riverfront section of land between the cabins and the river in the Ecohort VMP and the Conzept plan. Each plan had a substantial number of plants with the configuration between different plant types varying between the two, with different densities of vegetation proposed.

40 The landscape planners were asked their views of the density of planting of trees and shrubs in the dense river flat forest treatment in the Ecohort VMP and the riverbank casuarina treatment in the Conzept plan, and their opinion of whether both treatments would provide a dense visual screening of the cabins from the water and whether one was more effective at screening cabins than the other. Ms Sonter and Ms Lucas disagreed, with Ms Lucas considering the screening was inadequate and Ms Sonter considering that it was adequate.

41 The landscape planners were asked their opinion of the Canary Island date palms and whether they should be permitted to remain. Ms Sonter considered they were acceptable and would become part of the overall vegetative screen as the other trees around them grew. They would signify the presence of European settlement in the area. Ms Lucas considered they should be removed as they are a non-indigenous introduced species which did not conform with the approved VMPs in the cabins consent or the Pt 3A permit.

42 The Court conducted a view of the Respondent’s development the subject of these proceedings from the land and from the water during the hearing.

Council’s submissions

43 The orders sought by the Council are set out above in par 16-17 and include removal of all 11 cabins now installed until the proper landscaping required by the Ecohort VMP is planted and maintained for the required period specified in the EIS and approved in condition 1 of the cabins consent. Numerous alternative orders are also sought. The breaches of consent conditions found by the Court of Appeal in relation to the two cabins and the same breaches admitted in relation to the nine cabins are substantial breaches with significant environmental consequences. The terms of the cabins consent were developed in light of the refusal of development consent in Denis Gelle on the ground that the vegetation screening of cabins from the Hawkesbury River was not adequate. The EIS lodged with the cabins development application referred to the Denis Gelle decision directly addressed the issue of screening of the cabins with the objective of giving priority to views from the river rather than views to the river from the cabins. That is why the Council gave approval for the cabins consent when the Denis Gelle application had previously been refused by the Court.

44 The Respondent has the obligation to manage its land and was required under the cabins consent to implement the Ecohort VMP as part of the conditions of consent. The Respondent also had to satisfy DIPNR in relation to the requirements for the rock wall permit then required under Pt 3A of the RFI Act (now repealed). Rather than the consents being consistent, the Respondent sought to vary the Ecohort VMP through the unrelated Pt 3A permit process for the rock wall. Shortly after obtaining development consent on 1 August 2003 Mr Madsen initiated negotiations with DIPNR in relation to the requirements for the VMP for the same area of foreshore land seeking to vary the vegetation for planting densities and width of the riparian zone. Mr Madsen ought to have known this would conflict with the conditions of the cabins consent. Mr Madsen had advisers Mr Freimanis and Mr Gelle who ought to have known that a s 96 application to modify the consent under the EP&A Act should have been made in order to vary the conditions of the consent. That has now been held to be the case by the Court of Appeal.

45 The Conzept plan now proposed by the Respondent should also be the subject of a s 96 application. It is the third landscape plan proposed by the Respondent and should be the subject of a proper development application and assessment. The Court should not in the exercise of its discretion in these proceedings undertake a merit assessment of the Conzept plan. Section 124(3) of the EP&A Act specifically provides that where a breach would not have been committed but for the failure to obtain development consent the Court can adjourn proceedings to enable that application to be made.

46 As the development for which approval would be sought is not arguably the same development, as there are now cabins in place when the original scheme provided that vegetation grow on the foreshore before cabins were located on the sites, a new development application may be needed. Section 124(3) of the EP&A Act provides for the making of a development application where the breach of the Act is the failure to obtain development consent.

47 The Council submits the situation comes down to this:

48 The Respondent’s conduct suggests that Mr Madsen initiated discussions with DIPNR to get changes to the VMP yet did not inform the Council either informally or through a s 96 application that it was seeking to change the VMP. Mr Gelle was employed to do just this (TS 28 February 2008 p 98 line 43 to p 99 line 5; see also par 35 written submissions in chief 11 February 2010). Mr Gelle admits that the VMP sought from DIPNR was fundamentally different from that approved as part of the development consent.

49 Mr Freimanis was also employed for the purpose of preparing an amended VMP. In the original proceedings Mr Freimanis stated that the amended landscape plan was a reversal of that approved by Council (TS 28 February 2008 p 103 line 38 to p 104 line 13; see also par 37 written submissions in chief 11 February 2010).

50 The Council did not sit on its hands, contrary to the Respondent’s submissions. It was the Respondent who deliberately sought to change the VMP the subject of the cabins consent through the Pt 3A permit process for the rock wall. The original Pt 3A permit issued for the rock wall by DIPNR on 2 October 2003 included the Ecohort VMP. For those parts of the land affected by the rock wall the subject of DIPNR consideration, the landscaping was largely identical to that approved in the cabins consent. The Respondent then sought a variation of the VMP which resulted in the amended Pt 3A permit dated 5 May 2004 being issued. The Respondent’s evidence concerning meetings between Mr Gelle and Mr Zwicker, then employed at the Council according to that evidence, is incorrect. Mr Zwicker was not employed at the Council after 8 February 2002, as identified in the affidavit of Ms Scharfe of 3 February 2010.

51 There is no evidence that Kristine McKenzie or others at the Council were involved in the negotiations about the new landscape plan (the amended VMP) between DIPNR and the Respondent. Ms Payne’s evidence was that she advised Mr Madsen that DIPNR would liaise with the Council to ensure that any amended vegetation plan was in keeping with Council objectives for the development (exhibit 4). Her statement was made on a general basis without reference to a specific plan. The evidence of Ms Payne in cross-examination during the original proceedings confirms that the Council was not involved in the process leading to the amended VMP (see par 50 written submissions in chief 11 February 2010).

52 Ms McKenzie did not see the amended VMP DIPNR was given by Mr Madsen. There is no evidence of any discussion about the amended VMP with any of the Council’s officers. The Respondent relies on the fact that the amended Pt 3A permit was sent to the Council on 26 October 2004 (exhibit 10) but that permit concerned the rock wall. The cabins consent still required compliance with condition 1 of the consent and condition 41 required a separate Pt 3A permit for cabin installation works. Council could not take any particular action without a s 96 application being made. It was the Respondent’s responsibility to manage its own land and comply with the development consent that it held.

53 There was no request for an inspection at the completion of each stage of landscape works by the Council as required by condition 30 of the consent. That condition was not complied with. Accordingly, there was no delay by the Council in taking action, it was simply unaware of what had been planted.

54 The Respondent had the primary obligation to make a formal application to the Council to amend the development consent so that it accords with a new plan it has proffered to a third party for implementation in an area also covered by a development consent. Mr Madsen must have known when he approached DIPNR a couple of months after development consent was granted by the Council that in the amended VMP he was seeking a “reversal” of the approved Ecohort VMP. It was therefore inconsistent with the consent so that he required a s 96 application for modification of development consent to be approved if it was to be consistent with the consent.

55 The Court should not withhold relief as the Respondent seeks. While the Court has discretion to do so, this case is concerned with the enforcement of public laws see Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 and ACR Trading Pty Ltd v Fat-sel Pty Ltd (1987) 11 NSWLR 67 per Kirby P at p 82. The cabins are designed to be easily transportable, despite the considerable costs of removal referred to in Mr Elphick’s evidence. The Respondent took the risk of placing the cabins on the sites in breach of the consent and gained financial advantage in doing so. The Respondent did so being aware of the potential for a breach by placing cabins on the sites without Council inspection as required by condition 30, see affidavit of Mr Robert Denis dated 28 June 2007 at par 5. The Respondent shows no inclination or intention to install vegetative screening in accordance with the consent.

56 The Council has not stood by while the Defendant incurred expense, which could be a relevant circumstance if it existed, see Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 29 LGRA 323. The Respondent has chosen to introduce onto the land an additional nine cabins and took on the risk of doing so when Court of Appeal proceedings were on foot.

57 The breach is not merely technical. Any passerby on the Hawkesbury River will see exactly what Pearlman J sought to avoid being seen in Denis Gelle, namely cabins with a row of palm trees and some landscaping so that the cabins are visible. This is contrary to the decision of Pearlman J and the Ecohort VMP in the EIS approved with the cabins consent. The Court should infer that Mr Madsen sought to frustrate and avoid the landscaping requirements imposed on him by the cabins consent. The public interest the Council seeks to protect is in direct conflict with the Respondent’s actions as a private developer. The Respondent seeks to gain the advantage of water views to enable additional income and a higher sale price for the cabins.

58 The financial hardship alleged by the Respondent if it has to move the cabins is entirely a result of its own actions. There should be no cabins on the land today, no sales to third parties and there should be no occupancy, given that the Respondent is in breach of its development consent. It has derived financial advantage from the early sale and placement of the cabins. The Court should not give any substantial weight to the financial consequences of ordering cabins to be removed. Mr Madsen sought to achieve an outcome the opposite of what the Council approved in the EIS and the consent, and had the objective of obtaining views from the cabins to the river contrary to the Ecohort VMP approved in the cabins consent. That is clear from the conversation on 29 September 2003 between Ms Payne, Mr Madsen and Mr Gelle referred to in Ms Payne’s affidavit dated 21 December 2007 where Mr Gelle expressed the view that park users would have no views. Ms Payne had no knowledge of any development application for cabins to be placed near the rock wall area at that time. Mr Madsen allowed occupation of the cabins when the landscaping was not what the Council required before occupation. DIPNR was also concerned about the presence of palm trees.

59 Mr Madsen deliberately asked Mr Freimanis to reduce the density of the landscaping proposed “to allow filtered views of the water from the cabins”, Mr Freimanis’ affidavit dated 5 November 2007 at par 3. The affidavit of Mr Gelle dated 6 November 2006 contained similar statements. These conversations occurred after the grant of the cabins consent on 1 August 2003. In cross-examination on 10 February 2010 Mr Madsen criticised the Ecohort VMP and stated that he did not consider that more vegetation should be planted.

60 Mr Madsen caused one cabin to be delivered to stage 1 after the proceedings were commenced in this Court but before the decision at first instance was handed down. In June 2008 his solicitors stated that their client had taken delivery of a further cabin and had no intention of connecting it to utilities until the Class 4 proceedings were resolved. Yet this occurred after Mr Madsen told the Court that he had no intention of putting further cabins on the site before the resolution of the proceedings. (I note this answer was clarified in re-examination as referring to the original proceedings before this Court). The Council sought an undertaking from Mr Madsen that further cabins not be installed but this was offered only if the Council gave the usual undertaking to pay damages. The Council did not do so, nor would it have to. The Respondent took the risk in installing further cabins that it may have to remove them.

61 The placing of a further nine cabins on the land is extraordinary. A further cabin was placed after Ko-veda No 1 was handed down. The Council had written to the Respondent on 15 July 2008 advising that it proposed to lodge an appeal. After the commencement of the appeal on 30 July 2008 six more cabins were installed and occupied pursuant to site agreements signed in August to December 2008 and January and April 2009. Once again the Respondent took the risk of doing so when an appeal was pending. Day v PinglenPty Ltd [1981] HCA 23; (1981) 148 CLR 289 at 301-302 applies.

62 The palm trees are prominent in the landscaping on the river front. They are not approved in the Ecohort VMP or the DIPNR VMP. They should be removed. The public interest is reflected in the decision of Pearlman J in Denis Gelle to refuse consent because there was not adequate screening of cabins from the water. The cabins should be established only when properly screened from the water. With some modification much of the vegetation can be adapted to create the appropriate vegetative screen. The Conzept plan is not supported as it differs from the Ecohort VMP in terms of the vegetation treatment proposed (detailed in par 107 of the Council’s written submissions in chief) and does not require the removal of the palm trees. If implemented it will allow filtered views from the cabins to the water and vice versa. It should be the subject of a s 96 application to modify the consent so that a proper merit assessment can be made.

Respondent’s submissions

63 The primary position of the Respondent is that the Court, in the exercise of its discretion, should decline to grant the Council any relief in the particular and in some respects, extraordinary, circumstances of this case. These circumstances are identified below.

64 If, however, the Court considers it appropriate to grant any relief, it should grant relief which would be consistent with the following propositions:

65 It is fundamental that the discretion under s 124 of the EP&A Act is not fettered and that the appropriate exercise of discretion must turn on the particular facts of each case: Sedevcic per Kirby P at 339.

66 In this case, the Council has attempted to infect the exercise of discretion by repeatedly suggesting that a consideration of the efficacy of the existing landscaping and the efficacy of an augmented landscaping treatment embodied in the Conzept plan would be tantamount to conducting a Class 1 merit appeal. In so doing, the Council disguises its invitation to the Court to fetter the exercise of its discretion under s 124 of the EP&A Act. In any event, the Court is not being called upon to conduct a merit appeal, but is merely being called upon to consider discrete matters regarding the efficacy of landscaping and its screening, which go directly to whether the relief sought by the Council should be granted.

Why no relief should be granted

67 This is an entirely appropriate case for the appropriate softening of the strict application of the law in light of the following circumstances, each of which will be addressed in more detail below:

68 An extract from the Respondent’s submissions sets out in detail the circumstances which the Respondent argues support its submissions that no relief ought be granted by the Court. Firstly, because of the assessment by DIPNR of the Pt 3A permit application for the rock wall and the cabins DA. Secondly, that the Council failed to take timely action in commencing enforcement proceedings.

The amended Part 3A permit for the rock wall

11. … The relevant circumstances are these:

a) The relevant history regarding the proposed redevelopment of Lot D may be said to commence at about the turn of the century, when the respondent lodged development applications with Baulkham Hills Shire Council to build the rock wall and to relocate 50 cabins onto river frontage on Lot D (the precursor to the 47 cabins application). These were the development applications ultimately determined by the Land and Environment Court on 25 October 2001.

b) There were two related river-front developments on Lot D: the rock wall and the relocation of cabins. They were always clearly related developments, proposed as a package of proposed redevelopment of Lot D, albeit, as not uncommonly occurs, through the vehicle of 2 separate applications.

c) Each of these proposed developments involved excavation works within the prescribed area of 40 metres from the bank of the Hawkesbury River such that a permit was required under the Rivers and Foreshore Improvement Act from DIPNR. Accordingly, DIPNR was involved in assessing each of the proposals as an approval body under the provisions of Division 5 of Part 4 of the Environmental Planning and Assessment Act .

d) The conditions of development consent for the rock wall imposed by the Land and Environment Court included a condition requiring compliance with the general terms of approval issued by DIPNR, which are extracted in the conditions of consent and which included, at clause 2.2.4, a requirement to establish a vegetated riparian zone in accordance with a VMP to be prepared in accordance with DIPNR guidelines.

e) During this early period (2000/2001) in which these two development applications were lodged and assessed and ultimately determined by the Land and Environment Court, Denis Gelle, the respondent's consultant had many meetings with Council planner Ron Zwicker. It was made plain by Mr Zwicker during those meetings that the Council deferred to DIPNR on the question of vegetation in the riparian zone.

f) The fact that the Court granted consent for the rock wall, but refused consent for the 50 cabins proposal, did not have the consequence that DIPNR then restricted its focus to the rock wall. By June 2002, the first respondent had prepared a fresh development application for the relocation of 47 cabins (the “cabins application”) with a supporting EIS.

g) The cabins application and accompanying EIS was provided to DIPNR in June 2002, some 7 months before being lodged with the Council. That was because owner’s consent was required for the cabins application (because of proposed pontoons in the river).

h) DIPNR had notified the respondent that, in accordance with DIPNR’s revised policy, assessment of the cabins application would occur prior to the granting of owner’s consent - and thus before the lodgement of the development application.

i) Having been provided with the proposed cabins application and EIS in June 2002, DIPNR then subjected the EIS to a comprehensive and thorough review (conducted by all relevant divisions) over a 7 month period which culminated in the granting of owner’s consent in January 2003, following upon which the development application was lodged with the Council.

j) Significantly, the riparian zone planting program proposed in the cabins application EIS was requested by officers of DIPNR together with the requirement for a bond.

”

l) The link between the cabins development and the requirement imposed by DIPNR to revegetate the riparian land was thus clearly manifest even before the development application for the 47 cabins was lodged with the applicant.

m) Following the thorough assessment by DIPNR, owner’s consent was granted on 13 January 2003, following which, the development application submitted to the Council on 17 January 2003.

n) Upon receiving the cabins application, the Council duly referred it back to DIPNR as integrated development.

It is apparent from the documents presented that the subject development application is closely related to the proposed construction of a rock wall for the purpose of bank stabilisation within Lot D on the subject site...

p) Some months later, on 3 April 2003, the first respondent formally applied for a Part 3A permit for the rock wall. Significantly, the application includes a note that DIPNR had received the EIS dated June 2000 (presumably for the 50 cabins relocation) and did not need it supplied again. It included in the heading “Additional Information” “ Vegetation Management Plan with an arrow pointing to the further words “In latest EIS” (one infers this is a reference to the EIS accompanying the cabins application which had been prepared and submitted in January 2003).

q) The fact that the application for the Part 3A permit for the rock wall included reference to the VMP submitted as part of the EIS accompanying the cabins application is significant, because, once again, it demonstrates the close connection between the two developments in relation to the riparian zone revegetation.

r) In June 2003, DIPNR issued general terms of approval in respect of the 47 cabins development application.

s) In early August 2003, some 2 months before DIPNR granted the Part 3A permit for the rock wall, DIPNR was provided with a copy of the notice of determination granting consent to the cabins application.

Re-negotiation of the riverfront vegetation scheme
t) On 29 September 2003, Mr Madsen and Mr Gelle attended the offices of DIPNR and met with Ms Payne and Mr El Chamy. That much is common ground. It is also common ground that they discussed the vegetation bond requirements.

u) Mr Madsen and Mr Gelle gave evidence that, at this September 2003 meeting, they specifically discussed the proposed cabins in the context of what requirements would be imposed under the Vegetation Management Plan.

v) The evidence of Ms Payne was that the cabins were not discussed at the September meeting. The evidence of Mr Madsen and Mr Gelle should be preferred: their version of events is consistent with the fact that there was at that time a development consent for the cabins – being integrated development requiring a Part 3A permit. Their accounts corroborated one another. On the other hand, the account of Ms Payne was not corroborated by DIPNR’s Resource Access Manager, Mr Marwan El-Chamy. He was neither called upon to provide an affidavit, nor called to give evidence, despite the fact that he was apparently present in the precincts of the Court during the hearing in 2008. The Court will properly infer that his evidence would not have assisted the applicant’s case.

w) On 9 December 2003, there was a site meeting held at Ko-veda attended by persons including Benny Madsen, Denis Gelle, Sharelle Payne, Fiona Nagel and Kristine McKenzie. During that meeting there was discussion about a proposed revised planting regime. Kristine McKenzie was present during this discussion.

x) Mr Madsen’s evidence is that, at this meeting, he raised concerns with Ms Payne about the landscaping requirements being too onerous, following which Ms Payne mooted a possible alternative vegetation regime and referred Mr Madsen to Haige Park in Canberra. Ms Payne agreed that she had raised the issue of landscaping at Haige Park in discussions with Mr Madsen in December 2003, albeit she said this discussion took place at a meeting which occurred on an occasion in December 2003 across the counter at DIPNR offices.

y) On or about 16 January 2004, Mr Madsen did in fact go and look at Haige Park and considered that the type of landscaping treatment in place there would be suitable for the Ko-veda Holiday Park.

z) On 5 January 2004, Ms Payne emailed Mr El-Chamy indicating that she had received advice from Ms Nagel (the assessing officer) that BH Council are wanting the department to clarify its position before they issue an order (I presume this is a stop work order). Can I tell them that we have agree that we will not negotiate any further on the veg requirements in our Veg Mgt Plan i.e., the Veg Plan as lodged by Ko-veda and signed by the dept will remain in place as per the court order?

aa) That email is significant, including because it is apparent from it that DIPNR was communicating with the Council in relation to two issues – one a proposed stop work order and the other being in relation to the vegetation management plan.

bb) Subsequently, during January 2004, there were internal discussions within DIPNR regarding possibly allowing a different style of vegetation treatment in the riparian zone.

a) On 22 January 2004, Fiona Nagel, the assessing officer had a discussion about this with Sharelle Payne in which Ms Nagle considered that DIPNR should adhere to the existing plan; Ms Payne considered that the bushiness could be reduced and they agreed to disagree.

b) On 23 January 2004, Ms Payne sent an email to Ms Nagel apologising for asking Ms Nagel to compromise and requesting that Ms Nagel speak with Paul Bennet (DIPNR Natural Resource Project Officer Hawkesbury Nepean Landscapes) to discuss what levels of compromise are available with a view to the Eco Hort plan being re-drawn.

cc) On 23 January 2004, Fiona Nagle had a phone conversation with Sharelle Payne about the proposed amendments to the vegetation management plan in which they debated necessary outcomes – including regarding the issue of views. Ms Nagle’s note includes the statement: “ any plan (VMP) – must also be approved by BHSC – re cabin screening”

“Benny has been advised that the department would not consider pine trees (or palms) but may consider the amended concept if it incorporated pockets of fully structured vegetation (as per existing veg plan) dispersed at regular intervals throughout the rehabilitation area”

I advised Benny that the department would also liaise with Council to ensure that any amended veg plan was in keeping with their objectives for the development”

“regarding Council’s position on a possible amended vegetation management plan for the foreshore plantings between the river and the cabins at Ko-Veda”.

“Spoke today with Kristine McKenzie from Baulkham Hills Shire Council regarding Council’s position on a possible amended vegetation plan for the foreshore plantings between the river and the cabins at Koveda.

…

If DIPNR accepts the amended concept it should provide adequate screening of cabins from the water and provide filtered views from the cabins through the tree trunks to the river. It would also create a shady area for the amenity of users.

…

Kristine indicated that Council would be prepared to consider an amended concept if it provided improved visual amenity and screened cabins from the river. She acknowledged that people buying cabins at the park would have a perception that the existing (pre-rehabilitation) water views would be preserved and certainly there needed to be opportunities for these purchasers to enjoy water views.

Spoke w/- Benny re proposed amendments to rehabilitation of riverbank @ Koveda.

Benny presented concept plan

Advise – will review plan & seek input from appropriate colleagues (Paul Bennett)

Also need to refer to Council

Made some notations on plan regarding lomandra

gg) Consistent with what Ms Payne said in her diary note of 18 February, consultation did occur with Paul Bennett and on 5 March 2004 Mr Bennett sent a memorandum to Sharelle Payne about the proposed amended riparian vegetation scheme. One of the objectives expressly canvassed in the memorandum is whether “ [t]here is appropriate screening of cabins from the water ”. Mr Bennett recommended an increased density of casuarina planting.

The only thing Benny was not happy about was the suggestion that the department required approximately one third of the area behind the wall to be returned to fully structured vegetation. He said not possible. The dens veg will be planted in the 10 metre gaps between the blocks of cabins – this effectively gives are 300sa m of fully structured veg down from approx 2,500 sq m in the original plan. Huge reduction but as he said – his agreement and offer is still well in excess of what existed prior to d’ment or what has been asked of anyone else.

I suggested that increasing each of the structured veg pockets another two (2) to five (5) metres was not unreasonable – given the angle of the cabins to the river and extra two metres each side would still provide reasonable views for all the cabins. Benny has agreed to an additional two metres.

jj) On 5 May 2004 DIPNR issued the amended Part 3A permit for the rock wall, in which the amended VMP was approved by Mr El Chamy consistent with the negotiations and consultations in the preceding period.

69 The amendments to the VMP made as part of the rock wall Pt 3A process were clearly made by DIPNR in contemplation of the cabins. A memorandum of Paul Bennett of 3 March 2004 (exhibit 1) refers to DIPNR’s objectives as including the appropriate screening of cabins from the water. That was the basis for the amendment proposed by Mr Madsen and the basis upon which DIPNR considered the matter and agreed to change the VMP. Ms Payne and Ms McKenzie of the Council expressly raised cabin screening and views of the cabins from the water on 11 February 2004 (exhibit 2 p 8).

70 The discussions between Ms Payne and Mr Madsen about the proposed amendments to the plan, as recorded in Ms Payne’s email of 12 March 2004 to Mr Graham and Mr El Chamy, expressly contemplated the cabins.

71 The issue of views from the cabins was central to further negotiations between Ms Payne and Mr Madsen on 26 March 2004 as recorded in Ms Payne’s file note of 29 March 2004.

72 Ms Payne of DIPNR told Mr Madsen that she would liaise with the Council. In these circumstances it is unreasonable to expect that Mr Madsen would have approached the Council separately.

73 Council officers were aware of what DIPNR was doing in relation to the amended VMP. Ms McKenzie was consulted, as identified in Ms Payne’s file note of 11 February 2004. Ms McKenzie has not given evidence about being consulted by DIPNR prior to its approval of the amended VMP. The Council essentially deferred to DIPNR on the issue of vegetation in the riparian zone as evidenced by the discussions between Mr Gelle and Mr Zwicker, which evidence is still relevant despite Ms Scharfe’s evidence that Mr Zwicker ceased employment in February 2002. The Council continued to defer to DIPNR by expressly making condition 1 subject to condition 6. The evidence supports a conclusion that the Council acquiesced in the amendment of the VMP.

74 The Respondent has planted over 4,500 plants in conformity with the amended VMP approved in the amended Pt 3A permit. The Respondent paid a bond which has now been refunded by DIPNR, suggesting its satisfaction with what has been done. The two cabins on Lot 40 and 47 were not installed until 18 months after that vegetation was planted.

75 It weighs against the grant of relief to the Council that it had the amended VMP by the end of October 2004 but did nothing to require adherence to the Ecohort VMP for more than two years (Class 4 proceedings were commenced on 4 July 2007) during which time the Respondent planted in accordance with the DIPNR VMP, left the vegetation in place for 18 months before obtaining a construction certificate and then installed cabins. Mr Madsen complied with the construction certificate as imposed by the cabins consent. He relied on what he understood was a valid construction certificate which permitted him to install 12 cabins.

Additional issue - Condition 7

76 On the first day of hearing the Respondent sought leave to raise a further issue essentially as a defence based on the operation of condition 7 in the cabins consent. Condition 7 states:

Compliance with the requirements of the NSW Rural Fire Service attached as Appendix B to this Consent and dated 23 April 2003, through all stages of the development.

77 Appendix B was a letter from the NSW Rural Fire Service (NSW RFS) which stated:

I refer to your letter of 23 January 2003 seeking our General Terms of Approval to the above integrated development proposal in relation to the requirement for a Bush Fire Safety Authority under section 100B of Rural Fires Act 1997.

104 The Respondent identifies matters relevant to the renegotiation of the foreshore vegetation which occurred from about 29 September 2003 (par 68(t)-(kk) and written submissions par 9(t)-(dd)) with the aim of demonstrating that DIPNR was well aware of the cabins when it negotiated the changes (and that a Council officer Ms McKenzie was aware of the negotiations between Mr Madsen/Mr Gelle and DIPNR which I will consider separately below). The first meeting of Mr Madsen and Mr Gelle with departmental officers where the issue of the proposed cabins was raised was in September 2003 according to their evidence. This is disputed by Ms Payne who stated there was no mention of cabins at that meeting (par 68(v) above). It is not material in the overall context of the negotiations whether the cabins were raised then. In December 2003 there was another meeting for which the file note of DIPNR records that issues of views and dense vegetation were raised by Mr Madsen, and according to Mr Madsen’s affidavit of 2 November 2007 the suggestion of considering Haig Park in Canberra was made by Ms Payne (par 68(w)). In her affidavit of 21 December 2007 Ms Payne denies making the reference to Haig Park in the terms claimed by Mr Madsen. According to her affidavit she did refer to Haig Park as an example of a park with a close planting of trees. The file note of the on-site meeting of 9 December 2003 refers to Mr Madsen raising concerns about the vegetation being too dense in terms of views.

105 DIPNR’s response according to the Respondent’s written submissions (par 9(o)) reveals the connection between the rock wall consent and the cabins DA was known. That is confirmed by the fact that the first VMP for the Pt 3A permit for the rock wall was the VMP submitted with the EIS for the cabins consent. I should note that the amended VMP issued as part of the amended Pt 3A permit on 5 May 2004 does not make any reference to cabins or depict these. It shows specified vegetation required in an 18m wide strip along the foreshore for a distance of 235m. The adjoining area (where the cabins would be located) is described as being grassed.

106 That DIPNR was aware of the cabins and took these into account in its decision to issue the amended Pt 3A permit, as it appears it did, is less material to the exercise of my discretion than the Council’s knowledge of that process. DIPNR was not exercising functions under the EP&A Act when it determined to amend the Pt 3A permit with an amended VMP. The breaches the subject of these proceedings are breaches of the EP&A Act not the Rivers and Foreshores Improvement Act (now repealed) pursuant to which the Pt 3A permit was issued. The objects of these two Acts while broadly related in terms of managing aspects of development in the environment have different focuses and specific objectives. That DIPNR did issue an amended VMP for part of the same physical area as the cabins consent is a relevant matter I discuss further below.

(ii) Council’s knowledge

107 Whether the Council was aware of the rock wall VMP negotiation is possibly relevant to the consideration of whether the Council sat on its hands in taking action against the Respondent such that none of the relief sought ought be granted. The Respondent prepared detailed submissions on the evidence seeking to demonstrate these matters, the evidence being identified in par 68(f) – (kk).

108 The Respondent relied on evidence of conversations between Mr Gelle and Mr Zwicker, Council officer, in which Mr Zwicker is said to have told Mr Gelle the Council would defer to DIPNR in relation to vegetation in the riparian zone (par 68(e) above and Mr Gelle’s affidavit. Mr Zwicker ceased employment at the Council on 8 February 2002 (Ms Scharfe’s affidavit 3 February 2010). Accepting those conversations took place with Mr Gelle, the conversations were much earlier than the period in which substantial negotiations about an amended VMP took place with DIPNR in relation to the rock wall Pt 3A permit. That negotiation was largely in the period between October 2003, when the Pt 3A permit for the rock wall was issued with a VMP approved the same as the Ecohort VMP, and May 2004, when the amended Pt 3A permit was issued with the amended VMP which changed substantially the planting regime for the foreshore area in front of stages 1 and 2. That period is well after Mr Zwicker ceased employment in February 2002. That cannot be used to support a submission that the Council would acquiesce to the views of DIPNR on vegetation in the foreshore area.

109 The Respondent argued Ms McKenzie, a Council officer, had knowledge of the DIPNR process concerning the amended Pt 3A permit including in relation to vegetation. The discussions with DIPNR referred to in par 68(ee) above and Ms Payne’s file note of discussions which included Ms McKenzie was in the context of the Pt 3A permit for the rock wall which related to the rock wall development consent. Ms McKenzie attended a meeting on 9 December 2003 with DIPNR officers and Mr Madsen at which the VMP for the rock wall was discussed. An email between Ms Payne and Mr El-Chamy in January 2004 (par 68(z)), which refers to the Council contacting DIPNR before an order is issued (presumed to be a stop work order), is relied on as demonstrating that DIPNR was in contact with the Council and vice versa in relation to these issues. Ms Payne’s file note of a telephone conversation with Ms McKenzie on 11 February 2004 records that she spoke to her about the Council’s position on an amended VMP for the foreshore planting between the river and the cabins. Ms McKenzie is recorded as stating that the Council would consider an amended concept if it improved visual amenity and screened cabins from the river. A file note of 11 February 2004 refers to a discussion with Ms McKenzie about an amended vegetation plan between the river and cabins.

110 That Ms McKenzie of the Council was aware of discussions between Mr Madsen and Mr Gelle and DIPNR officers in relation to the Pt 3A permit does not lead to a conclusion that the Council sat on its hands such that no relief ought be granted. There is no evidence that the Council was asked to formally or informally approve the amended VMP prepared by Mr Freimanis and given to DIPNR by Mr Madsen before its finalisation and the issuing of the amended Pt 3A permit, only that discussions took place during the negotiation process initiated by Mr Madsen. A copy of the permit was sent to the Council after it was approved on 26 October 2004 (par 68(kk) above) (and date-stamped as received by Council on 1 November 2004: exhibit 10). Whether that should have put the Council on notice sufficiently to alert it to the need to take action is debateable as it related to the rock wall consent not the cabins consent. In the absence of any communication with the Council by Mr Madsen about his intentions to have the Ecohort VMP amended through the rock wall permit process (which I refer to below), together with the failure by the Respondent to request the required inspections under condition 30 of the cabins consent once planting occurred in July 2005 (which breach was held to have occurred by the Court of Appeal), I do not consider the Council can be said to have sat on its hands in not commencing these enforcement proceedings until 4 July 2007.

111 The evidence relied on by the Respondent does not suggest that I should make a finding that the Council did acquiesce in the granting of the amended Pt 3A permit with an amended VMP to the extent that relief in some form ought be denied it in these proceedings.

Should Mr Madsen have told the Council about negotiations with DIPNR?

112 With the benefit of hindsight Mr Madsen should clearly have told the Council of his intentions to amend the Ecohort VMP through the Part 3A permit process. Regrettably Mr Madsen and/or his adviser Mr Gelle did not separately approach the Council to advise of the discussions with DIPNR or their intention to seek to vary the Ecohort VMP approved with the cabins consent. They are clear in their evidence that they intended to lobby DIPNR to achieve changes in the Ecohort VMP. The Council portrayed this behaviour as going behind the Council’s back in initiating the changes to the Ecohort VMP through DIPNR which resulted in an amended VMP being approved. The Respondent relied on statements by Ms Payne to Mr Madsen that she would advise the Council (par 68(ff) above) as suggesting his actions in not notifying the Council of what he was doing were reasonable. That statement explains Mr Madsen’s actions which were also informed I surmise by the erroneous belief that the rock wall permit process could override the cabins consent conditions. I accept that his actions were not deliberately evasive in relation to the Council.

113 It is also the fact that DIPNR as the regulatory authority under the Rivers and Foreshore Improvement Act chose to issue an amended Pt 3A permit. It is also relevant that but for Mr Madsen and Mr Gelle’s approaches to DIPNR after the Pt 3A permit was first issued no amended Pt 3A permit with amended VMP would have been issued by DIPNR.

Overlapping VMPs

114 An important practical issue remains that DIPNR issued an amended Pt 3A permit in May 2004 with an amended VMP for part of the same foreshore area as the Ecohort VMP for the cabins consent. While the Council has been at pains to emphasise how Mr Madsen sought to circumvent the Ecohort VMP approved as part of the cabins consent, DIPNR agreed to the amended VMP for the same physical area of 235m along the foreshore for a strip of 18m in front of stages 1 and 2 the subject of the cabins consent, albeit it is unlikely to have done so without the further approach of Mr Madsen seeking to amend the Pt 3A permit already issued for the rock wall in October 2003.

115 There is no clear explanation in the evidence for why that was done by DIPNR. Ms Payne who gave evidence for DIPNR in the substantive proceedings was not the person who assessed the rock wall Pt 3A permit, that was Ms Nagel and she did not give evidence. Mr El-Chamy issued the rock wall Pt 3A permit from DIPNR and he did not give evidence. Ms Payne was acting in Mr El-Chamy’s position for a short period during the negotiations with Mr Madsen about the amended Pt 3A permit. That is the extent of her formal involvement with the permit process. It is obviously unsatisfactory from a practical point of view, let alone the legal issues that may arise, to have two government agencies giving consent or approval under different regulatory schemes for different VMPs over the same area of land. Mr Madsen could only implement one of them in the area of overlap and did so.

116 That practical issue continues in these remitter proceedings because I am being asked by the Council to order the implementation of the Ecohort VMP which may require the removal of some of the DIPNR VMP, an unsatisfactory state of affairs in terms of achieving an orderly development process for the Respondent. It may be an unavoidable, but unfortunate outcome, that in order to ensure implementation of the cabins consent in condition 1, the DIPNR VMP landscape vegetation required for the rock wall is partially removed. The potential for further conflict between the overlapping cabins consent and the Pt 3A permit required under conditions 6 and 41 remains if the latter involves an amendment to a VMP (as was noted by Tobias JA at [80]). It may be that my orders in these proceedings will unavoidably limit the discretion of DIPNR in relation to that process for this site.

Implementation of the development consent

117 It is relevant to the exercise of discretion to also consider Mr Madsen’s behaviour in implementing the cabins consent in light of the history of how the DIPNR VMP came to be planted. The behaviour of Mr Madsen in terms of implementing the cabins consent demonstrates that he generally intended to comply with it except that, the Council would say, he failed to implement the required Ecohort VMP. The development consent required him to obtain a construction certificate. He sought the required construction certificate from the independent certifier and this was issued on 20 November 2006 suggesting the certifier’s satisfaction with those matters relevant to the certificate as specified in the cabins consent conditions. He did not install cabins on Lots 40 and 47 until the foreshore vegetation had been in place for the required period of 18 months and the construction certificate had been obtained.

Cost of removing cabins

118 The evidence of Mr Elphick, quantity surveyor, concerning the costs of removing the cabins is identified above in par 25. These are substantial. While these costs are predicated on the need to disconnect, move and then reconnect the cabins as opposed to moving them and storing them, (which is a markedly lower cost of about half the estimate of $1,010,737.20), such costs are reasonably substantial for the Respondent if this is ordered to occur.

Placement of nine cabins

119 The Council is particularly critical of the placement of the nine cabins the subject of the second proceedings because this occurred after judgment in Ko-veda No 1 was handed down and after notification by the Council that an appeal had been lodged for all except the cabin on lot 46. That cabin was installed shortly after the judgment in Ko-veda No 1. Reference was made by the Council to Day v Pinglen where the High Court considered the issue of laches (delay) by a private individual in seeking injunctive relief in relation to a breach of planning laws as an example of disentitling conduct which may result in refusal by a court to grant relief.

120 Each case must depend on its own facts. This case raises the converse circumstance being the absence of an application for an interlocutory injunction by the Council in the substantive proceedings or pending the determination of the appeal to the Court of Appeal. The submissions of the Council appear to proceed as if it did make such an application or would have been certain to succeed, for example par 83 of the Council’s written submissions refers to the Council not offering the usual undertaking as to damages and the statement it would not have needed to do so if it had. Regardless of that statement and whether it is correct, no interlocutory injunction pending final determination was sought by the Council. In these circumstances, the Respondent was legally entitled to rely on the cabins consent following judgment in Ko-veda No 1. Doing so cannot be a basis for alleging disentitling conduct by the Respondent which counts against it in relation to the factors I must consider in the exercise of discretion. I accept the Respondent’s written submission (par 54(c)) that the additional nine cabins were installed after I held in Ko-veda No 1 that the installation of the two cabins on lots 40 and 47 was lawful.

121 The evidence of Mr Madsen in the first hearing that he was not intending to install more cabins until the proceedings were finalised was a reference to the finalisation of the proceedings in this Court, as confirmed by him in re-examination.

Conclusion on exercise of discretion

122 In proceedings No 40625 of 2007 (two cabins) the Court of Appeal declared that the two cabins were installed in breach of specified conditions of the cabins consent. Given the Court of Appeal’s declaration, consequential orders sought are the removal of those two cabins, the Respondent take steps to prevent their occupation or alternatively that occupation be restrained until sufficient growth of vegetation has occurred and conditions 6, 30 and 41 have been complied with. Alternatively, that the Respondent be required to install, grow and maintain vegetation in accordance with condition 1 of the development consent as specified by the Court. An order is also sought restraining the installation of further cabins under the development consent and until conditions 6, 30 and 41 are complied with.

123 In proceedings No 41019 of 2009 (nine cabins) no declaration is sought. The admissions made by the Respondent which give rise to findings of breaches of conditions of development consent enable consequential orders to remedy those breaches to be made pursuant to s 124 of the EP&A Act.

124 I consider that orders ought be granted in relation to both proceedings but not to the extent sought by the Council. The consequential orders to be issued will vary between stages 1 and 2.

Appropriate relief in relation to the cabins

125 Considering firstly whether the removal of cabins already installed in stage 1 is appropriate, as outlined above in relation to the nine cabins (par 112, 114-115) the subject of the second proceedings, there is no particular disentitling conduct which arises from their installation after Koveda No 1 determined that cabins on lots 40 and 47 were legally installed to suggest they should be removed.

126 I do not consider that I should order the removal of the eleven cabins now installed and sold by the Respondent to third parties. Nor will I restrain the occupation of the existing cabins in stage 1. I consider that would be disproportionate to the breaches of the development consent found by the Court of Appeal, given the unusual circumstance that the construction certificate required by the cabins consent and obtained by the Respondent was not legally relevant and should not have been required in the development consent. Further, a VMP has been implemented which was required under an amended Pt 3A permit by DIPNR which relates to the same physical area as the cabins consent and cabins were not installed until 18 months after the VMP was implemented in July 2005 following the issue of a construction certificate by the private certifier. This was in accordance with the steps required by the conditions of development consent.

127 I accept there is a possibility of contractual disputes or claims for loss and damages by the current owners and occupiers of the cabins whose interests would be adversely affected were I to make orders for removal and/or the prevention of occupation of the cabins (assuming that I can make orders affecting third parties not joined in the proceedings, about which I make no finding). Further, the costs of moving the cabins and temporarily re-establishing them elsewhere is large according to the evidence of the quantity surveyor Mr Elphick. Whether all the costs he refers to need be incurred is questionable, particularly if the cabins are simply stored elsewhere rather than reconnected to services, but I accept that some substantial costs would be incurred by the Respondent for the removal of all eleven cabins, in the vicinity of $500,000. Whether they need a Pt 3A permit for excavation for the front footings of cabins from DIPNR may still be an issue. As the cabins are otherwise generally erected in conformity with the cabins consent in terms of placement and construction their removal is not warranted.

Appropriate relief in relation to vegetation

128 The vegetation in front of stages 1 and 2 has been there for a considerable period, since July 2005. That vegetation apart from the Canary Island date palms was planted in accordance with the DIPNR VMP and a bond of $50,215 was required to be paid and was refunded for the planting by DIPNR. That suggests satisfaction with what was there, apart from the palms which were not in the VMP and about which concerns were expressed by officers of DIPNR according to minutes on the departmental file. Regardless of those concerns, the bond was returned by DIPNR. These circumstances suggest not all of this vegetation should be removed.

129 In relation to the landscape vegetation evidence regarding the Conzept plan, I consider that it is inappropriate to determine a merit matter in the course of the Court exercising its discretion. Undertaking an analysis of the effectiveness of the Conzept plan is precisely that. The Conzept plan relied on by Respondent should be the subject of an application under s 96 for modification to enable proper assessment by the Council as to whether it should be approved or not. That is not an appropriate matter to consider in these proceedings but is an appropriate matter to consider in a s 96 application to modify the cabins consent. I do not agree with the Respondent’s submission that the wide discretion the Court has in Class 4 proceedings means it should undertake what would usually be a function of the Court in its Class 1 jurisdiction.

130 Another observation of the Council I also consider relevant in putting aside the Conzept plan is that it was the Respondent’s consultants who prepared the Ecohort VMP to support the development application for the cabins and that is what the Council approved. The exercise of the Court’s discretion in civil enforcement proceedings should not be an opportunity for a party to essentially revisit matters which a consent authority has determined in the exercise of its development approval function under the EP&A Act.

Stage 1 - foreshore

131 In relation to vegetation on the foreshore in stage 1, the Canary Island date palms should be removed. They are not indigenous and are not specified in the Ecohort VMP or the DIPNR VMP. Both plans provided for indigenous plants only. They should not have been planted by the Respondent as they are clearly inconsistent with the VMPs. They are already prominent in front of stages 1 and 2 and will become more so as they grow to a height of several metres judging from the mature palms on the foreshore in front of the adjoining cabins development seen on the view. Their removal will leave a reasonably sizeable strip of vacant land which will need to be planted with appropriate indigenous vegetation in accordance with a plan which the parties will need to formulate based on the Ecohort VMP.

132 The DIPNR VMP provides, as was noticeable on the view, a vacant strip of land abutting the rock wall planting at the front of the foreshore area along the whole of stages 1 and 2. That is not in accordance with the Ecohort VMP which provides for specified riverbank casuarina treatment in specified locations on the foreshore line in stage 1 (and stage 2). I will discuss with the parties whether it is feasible to have the Ecohort VMP implemented in this strip as part of any planting required in the area of the palms once these are removed.

133 I will not otherwise require the implementation of the complete Ecohort VMP in this foreshore area. There will need to be some discussion with the parties about what and where vegetation is to be planted in sufficient detail that I can make an enforceable order. Provision for maintenance over a period similar to that stated in the EIS for any new vegetation will also be necessary.

134 I accept an order to this effect is less than ideal because occupied cabins are in place during planting and the maintenance period. The concerns expressed by Pearlman J at [56] in Denis Gelle about interference with growing vegetation to impede growth which impacts on views may arise. All new and existing owners and occupiers of the eleven cabins will need to be advised immediately and on an on-going basis of what is occurring in relation to vegetation as part of the sale or lease of any cabins in stage 1 for the period of maintenance at least. The final cabin in stage 1 must not be installed until the vegetative regime required by these orders has been in place for a substantial period.

Stage 2 - foreshore

135 In relation to stage 2, the Canary Island date palms should be removed for the same reasons articulated above in par 131. I consider the Ecohort VMP should be fully implemented in stage 2 before further cabins are installed and occupied in that stage. Ms Lucas considered that the existing vegetation planted in the foreshore area in accordance with the DIPNR VMP could be implemented as part of the Ecohort VMP. Greater precision on how this can be achieved with the objective of the existing vegetation being maintained wherever possible is needed so that I can make a final order to that effect in enforceable terms. A period of maintenance is required for the vegetation to grow before cabins in stage 2 are installed. Whether an order stating that no cabins can be installed in stage 2 until this has occurred is necessary in light of the fact that condition 30 applies will be discussed with the parties.

Balance of Ecohort plan

136 The focus of the hearing was on the foreshore area in front of stages 1 and 2 as that is the area to which the DIPNR VMP applies. That VMP relates to an 18m wide strip of the foreshore land in stages 1 and 2. The Ecohort VMP applies to a wider area and includes some planting of open-grassy river-flat forest at spaced intervals behind the cabins (adjacent to the access driveway) and in a gap between each clustered row of cabins in each stage. It was clear from the view that this vegetation has not been planted at all and is unaffected by the DIPNR VMP. It must be planted in order for condition 1 of the cabins consent to be complied with. How this should be provided for in orders will be discussed with the parties.

137 In addition to orders requiring planting in a specified timeframe, orders ensuring that it be done by qualified persons, in optimum growing conditions (see Respondent’s proposed order 4 at par 18 above), for an appropriately lengthy period and with provision for inspection by the Council such as is required by condition 30 are also necessary.

138 The parties will need to draft orders for the Court’s consideration which enable implementation of the findings in this judgment in relation to both proceedings, including matters identified for further discussion, and will require a period in which to do so. I also need to make an order for costs and require submissions by the parties on that issue.

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Citations

Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Limited (No 2), Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Limited [2010] NSWLEC 79

Most Recent Citation

Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Limited (No 4); The Hills Shire Council v Ko-veda Holiday Park Estate Limited (No 3) [2010] NSWLEC 239

Cases Citing This Decision

1

Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Limited (No 4); The Hills Shire Council v Ko-veda Holiday Park Estate Limited (No 3) [2010] NSWLEC 239

Cases Cited

12

Statutory Material Cited

4

Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd & Anor [2008] NSWLEC 181

Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (No 2) [2009] NSWCA 310

Denis Gelle Pty Ltd and Integrated Site Design Pty Ltd v Baulkham Hills Shire Council [2001] NSWLEC 229

CITATION:	Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Limited (No 2), Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Limited [2010] NSWLEC 79
PARTIES:	APPLICANT Baulkham Hills Shire Council RESPONDENT Ko-veda Holiday Park Estate Limited
FILE NUMBER(S):	40625 of 2007; 41019 of 2009
CORAM:	Pain J
KEY ISSUES:	DISCRETION :- exercise of discretion to make declarations and orders where Court of Appeal finds breach of EP&A Act - breach not technical - whether Court should order removal of eleven cabins - whether Court should order implementation of different vegetation management plan - whether Council delayed in commencing civil enforcement proceedings ESTOPPEL:- whether Anshun estoppel applies in second proceedings to prevent raising of new issue which could have been raised in closely related proceedings the subject of an appeal
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 4, s 96, s 124 Local Government Act 1993 s 68 Rivers and Foreshores Improvement Act 1948 Pt 3A Rural Fires Act 1997 s100B
CASES CITED:	ACR Trading Pty Ltd v Fat-sel Pty Ltd (1987) 11 NSWLR 67 Anthony Developments Pty Ltd v Marsden [1999] NSWSC 472; (1999) 29 MVR 262 Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 29 LGRA 323 Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd & Anor [2008] NSWLEC 181 Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 160 Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd (No 2) [2009] NSWCA 310 Dates v Karuah Local Aboriginal Land Council & Ors [2009] NSWLEC 221 Day v Pinglen Pty Ltd [1981] HCA 23; (1981) 148 CLR 289 Denis Gelle Pty Ltd and Anor v Baulkham Hills Shire Council [2001] NSWLEC 229 Henderson v Henderson (1843) 67 ER 313 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 Rahme v Commonwealth Bank of Australia (Court of Appeal (NSW), 20 December 1991, unreported) Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Zavodnyik v Alex Constructions Pty Ltd [2005] NSWCA 438; (2005) 67 NSWLR 457
DATES OF HEARING:	9 February 2010 10 February 2010 11 February 2010 12 February 2010 15 February 2010
DATE OF JUDGMENT:	31 May 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr A Galasso SC with Mr M Fraser SOLICITOR The Hills Shire Council RESPONDENT Mr T Howard SOLICITOR Hones La Hood