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

Land and Environment Court

of New South Wales

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

PARTIES: APPLICANT
Baulkham Hills Shire Council
FIRST RESPONDENT
Ko-veda Holiday Park Estate Ltd
SECOND RESPONDENT
Warrick Norris

FILE NUMBER(S): 40625 of 2007

CORAM: Pain J

KEY ISSUES:
Judicial Review :- whether breach of multiple conditions of development consent - whether construction certificate issued in breach of conditions of consent - whether construction certificate invalid
Development Consent :- construction of development consent - whether documents on Council file part of development consent - whether staging in environmental impact statement being implemented as required in development consent
Construction and Interpretation:- whether Part 3A permit under Rivers and Foreshores Improvement Act 1948 amends development consent conditions issued under Environmental Planning & Assessment Act 1979

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 4, s 81A, s 109C, s 109F
Environmental Planning and Assessment Regulation 2000 cl 145, cl 146, cl 147, cl 161
Interpretation Act 1987 s 35
Local Government Act 1993 s 68
Rivers and Foreshores Improvement Act 1948 Pt 3A

CASES CITED: AGC (Advances) Ltd v Roads & Traffic Authority of NSW (1993) 30 NSWLR 391
Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd; Weston Aluminium Pty Ltd v Environment Protection Authority and Anor (2006) 148 LGERA 439
Anderson v Minister for Infrastructure Planning and Natural Resources and Ors (2006) 151 LGERA 229
Auburn Municipal Council v Szabo (1971) 67 LGRA 427
Azzopardi v Gosford City Council & Anor (2002) 123 LGERA 118
Baulkham Hills Shire Council v Dix (2004) 136 LGERA 149
Brickworks Limited v The Council of the Shire of Warringah (1963) 108 CLR 568
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Corowa v Geographe Point Pty Ltd (2007) 154 LGERA 117
Dennis Gelle Pty Ltd and Anor v Baulkham Hills Shire Council [2001] NSWLEC 229
Grace Bros Pty Ltd v Willoughby Municipal Council (1980) 44 LGRA 400
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; (2000) 106 LGERA 440
Katoomba Gospel Trust v Blue Mountains City Council [1994] NSWLEC 107
Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207
Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695
Maule v Liporoni (2002) 122 LGERA 140
Mison v Randwick Municipal Council (1991) 73 LGRA 349; (1991) 23 NSWLR 734
North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321
Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245
Weston Aluminium Pty Ltd v Environment Protection Authority and Anor; Weston Aluminium Pty Ltd v Alcoa Australia Rolled Products Pty Ltd (2007) 156 LGERA 283
Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508

DATES OF HEARING: 26 February 2008
27 February 2008
28 February 2008
29 February 2008
6 March 2008
7 March 2008

DATE OF JUDGMENT:
4 July 2008

LEGAL REPRESENTATIVES: APPLICANT
Mr A Galasso SC with Mr M Fraser
SOLICITOR
Baulkham Hills Shire Council
FIRST RESPONDENT
Mr T Howard
SOLICITOR
Hones La Hood
SECOND RESPONDENT
Mr A Pickles
SOLICITOR
Riley Gray Spencer

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

4 July 2008

40625 of 2007 Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd & Anor
JUDGMENT

1 Her Honour: The First Respondent owns 2868 River Road, Wisemans Ferry known as the “Ko-Veda Holiday Park” (the holiday park). On 1 August 2003 Baulkham Hills Shire Council (the Council) granted development consent for the relocation of 47 cabins in the holiday park from the existing holiday park next door subject to certain conditions of consent (the cabins consent). The Second Respondent, Mr Warrick Norris, is a principal certifying authority under the Environmental Planning and Assessment Act 1979 (the EP&A Act).

2 By Class 4 application filed 4 July 2007 and later amended, the Council seeks declarations that the First Respondent breached conditions of the cabins consent. Further, the construction certificate (CC) issued by Mr Norris was issued in breach of conditions of the cabins consent pursuant to s 109F of the EP&A Act and cl 145 and cl 146 of the Environmental Planning and Assessment Regulation 2000 (the EP&A Regulation) and is therefore void and of no effect. An order that the First Respondent remove the cabins on lots 40 and 47 and associated garage and carport structures is sought. An order that the First Respondent take steps to ensure that the cabins on lots 40 and 47 are not occupied prior to their removal is also sought.

3 In addition, alternative orders are sought, firstly that the First Respondent is restrained from permitting the occupation of cabin lots 40 and 47 until the installation and growth of vegetation and landscaping, and the completion of the sewage treatment system as provided in the cabins consent. Secondly an order that the First Respondent is restrained from installing any further cabins in relation to the cabins consent until the installation and growth of vegetation and landscaping, and the completion of the sewage treatment system as provided in the cabins consent.

Conditions of development consent

4 The following conditions in the cabins consent are referred to in the Further Amended Points of Claim (FAPOC):

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 2 – Staging of Works

This approval allows the installation of cabins in stages, as detailed in the Environmental Impact Statement. Minor amendments to the staging of the development may be permitted subject to a request in writing being made to Council’s Director – Planning Services, providing satisfactory justification for the amendments and addressing the impact upon the adjoining property owners.

Condition 5 - Carports

Each cabin is permitted to have an attached open carport structure subject to approval being issued by Council. Enclosed garage-style structures will not be permitted.

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.

Condition 8 – Building Construction Certificate

The submission of a Building Construction Certificate for each proposed stage of the development, detailing the location of all cabins, for the approval by Council or an Accredited Certifier, prior to the erection of the structures. Plans submitted with the construction certificate are to be amended to incorporate the conditions of the Development Consent.

Prior to the Issue of a Construction Certificate for the Cabins

Condition 23 – Part 3A permit from Department of Sustainable Natural Resources

The submission of documentary evidence that the Part 3A permit under the provisions of the Rivers and Foreshores Improvement Act 1948, has been issued by the Department of Infrastructure, Planning and Natural Resources, prior to issue of the Construction Certificate.

Condition 26 – Carparking & Access
In order to provide satisfactory access and parking arrangements, the formation, paving, sealing and draining of all access roads, car parking and manoeuvring [sic] areas is required.
…

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.

Conditions Specific to Each Stage of Development

Stage 1

General Matters

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.

Stage 2

Prior to Occupation of Stage 2 Cabins/Issue of Occupation Certificate

Condition 46 – Completion of On-site Sewage Management System

The completion of all works associated with the on-site sewage management system prior to occupation of the first stage of cabins constructed, with the exception of pipework connecting individual cabins to the system. This includes the completion of all works associated with the treatment plant.

5 The FAPOC identify the following issues:

Breach of cabins consent – First Respondent

Breach of condition 1

(i) Condition 1 requires the development being carried out substantially in accordance with Development Application No. 2430/03/HE and accompanying Environmental Impact Statement (EIS) and all supplementary and additional information received by Council except where amended by the subsequent conditions of consent.

(ii) The EIS referred to in condition 1 of the cabins consent comprised, inter alia, volume 1 “Main Report” prepared by Integrated Site Design dated June 2002.

(iii) The EIS proposed a vegetation program of the foreshore of the Caravan Park where adjoining Hawkesbury River in a staged manner and to precede the construction of the cabins to be relocated, the subject of the cabins consent.

(iv) In about December 2006 the First Respondent constructed, or alternatively procured the construction, of a cabin on a site known as cabin lot 47.

(v) In about March 2007 the First Respondent constructed, or alternatively procured the construction, of a cabin on a lot known as cabin lot 40.

(vi) The construction of the cabins was in breach of condition 1 of the cabins consent.

Particulars

D1. A staging plan submitted with the development application incorporated by condition 1 of the consent provided for the installation of cabins on the initial 12 sites to be undertaken in stage 2. (this plan was exhibit B in the proceedings)

(a) the vegetation in front of those sites was either not in place or not sufficiently advanced as described in the EIS.

(b) the revegetation zones had not progressed to a suitably advanced stage in order to ensure appropriate levels of visual screening, from the Hawkesbury River.

(c) the components of stage 1 identified on page 25 of the EIS, or most of them, had not been undertaken prior to the initial installation of cabins.

(d) the vegetation undertaken at the Caravan Park did not comply with the description of the revegetation treatment described in section 6.12 of the VMP appended to the EIS.

Breach of condition 2

(vii) Condition 2 provides for the installation of cabins in stages as detailed in the EIS. Page 25 identifies the stages for works on the subject site and the components of those stages.

(viii) The installation of cabin Lot 40 and cabin Lot 47 was not in accordance with the staging of works set out in the EIS. The same particulars as alleged for condition 1 apply to this breach also.

Breach of condition 6

(ix) Condition 6 of the cabins consent prescribed compliance with the requirements of the New South Wales Department of Infrastructure Planning and Natural Resources (the Department) as set out in its letter dated 26 June 2003 forming Appendix A to the Development Consent.

(x) Clause 1 of the general terms of approval in Appendix A prescribed the obtaining of a permit under Pt 3A of the Rivers and Foreshores Improvement Act 1948 (the RFI Act) prior to the commencement of any works upon the site.

(xi) The First Respondent failed to obtain a permit under Pt 3A of the RFI Act in relation to works the subject of the cabins consent prior to the carrying out of works in relation to the cabins consent.

(xii) In the alternative, the First Respondent failed to obtain a permit under Pt 3A of the RFI Act in relation to works concerned with the installation of cabins on the subject land prior to the carrying out of those works.

Breach of condition 23

(xiii) Condition 23 required the provision of documentary evidence of a Pt 3A permit under the provision of the RFI Act prior to the issue of the CC. In such breach of condition 23 the first respondent failed to provide documentary evidence of a Pt 3A permit under the provision of the RFI Act prior to the issue of the CC.

(xiv) In the alternative, in breach of condition 23 the first respondent failed to provide documentary evidence of a Pt 3A permit under the provision of the RFI Act in respect of all works for which the CC was sought prior to the issue of the CC.

Breach of condition 30

(xv) Condition 30 provided that on completion of each stage of landscape works the First Respondent was to arrange an inspection of landscape works undertaken by the Council and the relevant officer from the Department, and the installation of subsequent stages of cabins was not to proceed until the First Respondent was advised in writing by both bodies that the landscape works had been completed satisfactorily.

(xvi) Upon completion of landscape works undertaken at the holiday park the First Respondent failed to arrange the required inspection.

(xvii) The two cabins were installed prior to either of the required inspections, or any advice in writing by either of the bodies above referred, that landscape works have been completed satisfactorily.

(xviii) Condition 30 required satisfactory completion of landscape works prior to the issue of a building CC for each stage of the development. In breach of condition 30 the landscape works were not satisfactorily completed prior to the issue of the building CC for the stage for which it was issued.

Breach of condition 41

(xix) Condition 41 provides that no work commence on the site until such time as a Pt 3A permit pursuant to the RFI Act has been issued by the Department.

(xx) The First Respondent undertook, or alternatively procured the undertaking, of works on the subject site prior to obtaining a Pt 3A approval as above referred.

Particulars

Construction Certificate – breaches of Mr Norris

Breach of condition 1

(xxi) On or about 23 November 2006 Mr Norris issued, as principal certifying authority, Construction Certificate No. PC22506 with respect to “Stage 1 (Relocation of 12)”.

(xxii) On its proper construction the cabins consent provided for no erection of cabins in stage 1, or alternatively did not provide for the erection of all 12 cabins in stage 1.

Breach of condition 23

(xxiii) Condition 23 of the cabins consent prescribed the provision of documentary evidence of a Pt 3A permit under the provision of the RFI Act prior to the issue of the CC.

(xxiv) No documentary evidence of a permit pursuant to Pt 3A of the RFI Act as applicable to the cabins consent was issued prior to the CC.

(xxv) In the alternative, no permit pursuant to Pt 3A of the RFI Act as applicable to the works the subject of the CC was issued prior to the issue of the CC, and accordingly no documentary evidence thereof existed prior to the issue of the CC.

Breach of condition 26

(xxvi) Condition 26, as contained in a section “Prior to the Issue of a Construction Certificate for the Cabins”, prescribed the formation, paving, sealing and draining of access roads, including the flood access road.

(xxvii) The cabins consent provided for the construction of 50 per cent of the extended road and construction of the flood evacuation road.

(xxviii) Prior to the issue of the CC above referred the formation, paving, sealing and draining of all access roads, including the flood access road, had not been undertaken, or alternatively 50 per cent of the extended road and construction of the flood evacuation road had not been undertaken.

Breach of condition 30

(xxix) Condition 30 of the cabins consent provided that on completion of each stage of landscape works, the First Respondent was to arrange an inspection of landscape works undertaken by the Council and the relevant officer from the Department, and the installation of subsequent stage of cabins was not to proceed until the First Respondent was advised in writing by both bodies that the landscape works had been completed satisfactorily and that the satisfactory completion of landscape works was to occur prior to the issue of a building CC for each stage of the development.

(xxx) Prior to the issue of the CC neither the inspection above referred or all of it, nor any advice in writing by either or both of the bodies above referred, that landscape works have been completed satisfactorily had occurred.

(xxxi) Mr Norris did not satisfy himself, or alternatively could not have rationally been satisfied, that the matters the subject of the CC were not inconsistent with the terms of the cabins consent or that conditions of the cabins consent that must be complied with before the issue of a CC may be issued had been complied with.

(xxxii) The issue of the CC was in breach of s 109F of the EP&A Act and/or cl 145 of the EP&A Regulation and/or cl 146 of the EP&A Regulation.

Breach of condition 46 sewage management system – First Respondent

(xxxiii) Condition 22 of the cabins consent requires the submission to and approval by the Council of an application to install an onsite sewerage management system prior to the issue of a CC.

(xxxiv) On or about 8 August 2005 the Council granted to the First Respondent approval for the construction of an on-site sewage treatment system, otherwise in compliance with condition 22 of the cabins consent.

(xxxv) Condition 46 of the cabins consent provides for the completion of all works associated with the on-site sewerage management system prior to the occupation of the first stage of cabins constructed.

(xxxvi) In or about May/June 2007 the First Respondent sold, or alternatively proposed to sell, one or both of the cabins erected on the subject site as above referred to third parties presently unknown to the Council. Following the installation of the cabins the cabins have been occupied. The First Respondent has not completed works associated with the on-site sewerage management system the subject of the Council’s grant of consent dated 8 August 2005 prior to the occupation of the cabins.

(xxxvii) The occupation of the cabins prior to the completion of the on-site sewerage management system is in breach of condition 46 of the cabins consent.

Breach of condition 5

6 Not included in the above summary of the FAPOC is a breach of condition 5 alleged by the Council. That condition requires approval from the Council before a carport is installed. The First Respondent admitted to the breach of condition 5 by installation of an open carport structure at the cabin on lot 40 without obtaining a separate approval pursuant to s 68 of the Local Government Act 1993 (the LG Act). The First Respondent submitted that this is a technical breach and does not warrant the making of orders in the exercise of the Court’s discretion. The original development application contained plans of proposed garages suggesting that there was in-principle consent provided by the cabins consent. Additionally there was already approval by the Council for the garage structure at the cabin on lot 47.

Relevant Legislation

7 The relevant sections of the EP&A Act are set out below as they were in force when relevant decisions were made and include s 4, s 80(12), s 81A(5), s 93, s 109C(1)(b) and s 109F, and of the EP&A Regulation, cl 145, cl 146, cl 147(1)(e) and cl 161. Some of these sections have been subsequently amended.

8 Section 4 of the EP&A Act defined the following:

building

includes part of a building and any structure or part of a structure, but does not include:

(a) a manufactured home, a moveable dwelling or associated structure or part of a manufactured home, a moveable dwelling or associated structure, or

(b) a temporary structure within the meaning of the Local Government Act 1993.

building work

means any physical activity involved in the erection of a building.

construction certificate

means a certificate referred to in section 109C (1) (b).

9 Section 80(12) of the EP&A Act provided:

Determination

(12)

Effect of issuing construction certificate

If a consent authority or an accredited certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 96).

10 Section 81A(5) provided:

81A

Effects of development consents and commencement of development

(5)

Regulations may provide for the issue of certificates

The regulations may make provision concerning the issue of certificates for the erection of buildings and the subdivision of land.

11 Sections 93(1) and (2) provided:

93 Granting and modification of approval by approval body

(1) Despite any other Act or law, an approval body must, in respect of integrated development for which development consent has been granted following the provision by the approval body of the general terms of the approval proposed to be granted by the approval body in relation to the development, grant approval to any application for approval that is made within 3 years after the date on which the development consent is granted if, within that 3-year period, the development consent has not lapsed or been revoked.

(2) The approval may be granted subject to conditions that are not inconsistent with the development consent.

12 Section 109C(1)(b) provided:

109C Part 4A certificates

The following certificates (known collectively as

Part 4A certificates

) may be issued for the purposes of this Part:

…

(b) a

construction certificate

, being a certificate to the effect that work completed in accordance with specified plans and specifications will comply with the requirements of the regulations referred to in section 81A (5),

13 Section 109F provided:

109F Restriction on issue of construction certificates

(1) A construction certificate must not be issued with respect to the plans and specifications for any building work or subdivision work unless the certifying authority is satisfied that:

(a) the requirements of the regulations referred to in section 81A (5) have been complied with, and

…

14 Clauses 145, 146, 147(1)(e) and 161 of the EP&A Regulation made pursuant to s 81A(5) of the EP&A Act provided:

145 Compliance with development consent and Building Code of Australia

(1) A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matters:

(a1) that the plans and specifications for the building include such matters as each relevant BASIX certificate requires,

(a) that the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent,

(b) that the proposed building (not being a temporary building) will comply with the relevant requirements of the Building Code of Australia (as in force at the time the application for the construction certificate was made).

…

146 Compliance with conditions of development consent

A certifying authority must not issue a construction certificate for building work or subdivision work under a development consent unless it is satisfied that each of the following have been complied with:

…

(c) each other condition of the development consent that must be complied with before a construction certificate may be issued in relation to the building work or subdivision work.

147 Form of construction certificate

(1) A construction certificate must contain the following information:

…

(e) a statement to the effect that work completed in accordance with documentation accompanying the application for the certificate (with such modifications verified by the certifying authority as may be shown on that documentation) will comply with the requirements of this Regulation as are referred to in section 81A (5) of the Act,

161 Certifying authorities may be satisfied as to certain matters: section 109O

(1) This clause applies to the following matters:

(a) any matter that relates to the form or content of the plans and specifications for the following kind of work to be carried out in connection with the erection of a building or the subdivision of land:

(i) earthwork,

(ii) road work, including road pavement and road finishing,

(iii) stormwater drainage work,

(iv) landscaping work,

(v) erosion and sedimentation control work,

(vi) excavation work,

(vii) mechanical work,

(viii) structural work,

(ix) hydraulic work,

(x) work associated with driveways and parking bays, including road pavement and road finishing,

(b) any matter that relates to the external finish of a building.

(2) Any requirement of the conditions of a development consent that a consent authority or council is to be satisfied as to a matter to which this clause applies is taken to have been complied with if a certifying authority is satisfied as to that matter

Rivers and Foreshores Improvement Act 1948/integrated development under EP&A Act

15 Section 22B of the Rivers and Foreshores Improvement Act 1948 (RFI Act, now repealed) provided that a permit from the Department is required to conduct excavation works on “protected land”, defined as being land not more than 40m from a bank of a river, the Hawkesbury River in this case. The cabins consent was for integrated development pursuant to s 91 of the EP&A Act. Under s 22C(3A) of the RFI Act the issue of a permit in relation to integrated development under s 91 of the EP&A Act is subject to Div 5 of Pt 4 of the EP&A Act.

16 Section 93 of the EP&A Act, set out at par 11, provides that an approval from an approval body made following the issuing of general terms of approval (GTA) may be granted subject to conditions which are not inconsistent with the development consent.

Extract of documents relevant to arguments

17 The detailed FAPOC specified what parts of the EIS in the cabins consent are relied on by the Council in relation to breaches of conditions 1, 2 and 30. The EIS stated:

(4.6) Proposed revegetation and landscaping [p 23]
A comprehensive revegetation plan has been prepared for Lot D by John McIntyre and Associates in conjunction with EcoHort Pty Ltd and is found at Appendix E. Key elements of the plan include:
a 30m – 33m wide riverbank revegetation zone comprising four different planting treatment regimes based on selected species;
a boundary revegetation zone along the River Road frontages to the allotment (essentially the eastern and southern boundaries) together with a landscaping program for the drain located in the south;
the provision of planned and defined pedestrian access corridors and associated surface treatments in and around the proposed cabins and from the cabins to the river and along the foreshore area;
a staged approach to the provision of all planting and landscape elements, and
a management strategy and regime designed to ensure the appropriate installation and ongoing success of the total program.

Riverfront and cabin precinct planting
From a perusal of the plan it can be seen that the four different planting treatments along the foreshore provide for:
five areas of dense river-flat plantings that screen views to and from the river;
five points where open grassy forest treatments allow for some limited framed views to the river through the trees. Access to the river via the proposed ramps also occurs at these points;
five groups of riverbank casuarinas with associated grassed viewing areas, and
groupings of tall fire retardant rainforest trees around the clusters of cabins.
…

Staging and management

Although the overall revegetation program could be implemented over the course of a continuous 24 month installation, maintenance and monitoring period it is intended to implement the program in four stages over a longer period. Regardless, in order to ensure appropriate levels of visual screening, cabin installation will not occur until the revegetation zones have progressed to a suitably advanced stage. These levels are expected to be achieved between 18 and 24 months after initial installation of the planting. A wider discussion of development staging is set out under 4.8 below.

(4.8) Staging and timing [p 24]
It is proposed that the development be undertaken in four stages. With respect to the short term dwelling sites these stages will commence on the northern portion of Lot D adjacent to the existing Ko-Veda operation and move towards the south. Throughout all stages cabins are not to be installed on sites until the revegetation program in front of those cabins is in place and sufficiently advanced. When the first cabin is installed in stage 1 the revegetation program for stage 2 will commence. Similarly when the first cabin is installed in stage 2 the revegetation program for stage 3 will commence and so on.

The four stages can be set out as follows: [p 25]
Stage 1
construction of main components of sewage treatment plant;
construction of 50 per cent of extended road; construction of flood evacuation road;
provision of services to initial 12 sites;
provision of revegetation and landscaping for initial 12 sites;
commence River Road frontage landscaping;
installation of northernmost ramp and pontoon.

Stage 2
construction of balance of road;
extension of services to next 12 sites;
provision of revegetation and landscaping for next 12 sites;
continue River Road frontage landscaping;
ongoing installation of cabins on initial 12 sites established in stage 1;
installation of second ramp and pontoon.

Stage 3
extension of services to next 12 sites;
provision of revegetation and landscaping for next 12 sites
continue River Road frontage landscaping;
ongoing installation of cabins on second group of 12 sites established in stage 2;
installation of third ramp and pontoon.

Stage 4
extension of services to final 11 sites;
provision of revegetation and landscaping for final 11 sites
complete River Road frontage landscaping;
ongoing installation of cabins on third group of 12 sites established in stage 3;
installation of fourth ramp and pontoon.

18 Appendix E to the EIS is the vegetation management plan by EcoHort Pty Ltd, inter alia (the VMP) which relevantly provided:

(6.12) Revegetation project staging and overall project costs
The proposed revegetation project is to be carried out over four 24 month stages. This equates to the overall revegetation project being implemented over an eight year period. Each revegetation stage will be implemented 18 to 24 months before cabin installation works are started. The cabins are proposed to be installed over four stages, with the first, second and third stages involving the installation of 12 cabins each and stage 4 involving the installation of 11 cabins. Stage 1 of the revegetation woks will be initiated from the north-eastern end of the riverbank section, with each subsequent stage of the project being implemented in the relevant adjoining area. The approximate areas and boundaries of the four proposed work stages are depicted in figure 6. In general the installation of the cabins can only proceed after the relevant area of riverbank (or boundary treatment) has been revegetated using specifications outlined in section 6.0 and figures 6 and 7 and has developed to standards outlined in section 7.0. It is anticipated that each revegetation stage will take between 18 to 24 months to reach the standards outlined in section 7.0.

Stage 1 of the revegetation project will involve implementing the four specified riverbank revegetation treatments, as outlined in figure 6. This will coincide with the installation of 100 per cent of the No 5 boundary treatment that is proposed to screen the works from the road and surrounding areas. as shown in figure 6. After initial installation, the stage 1 revegetation sites will require an 18 to 24 month maintenance period to ensure that the plantings have developed to standards outlined in section 7.0. Once the stage 1 works are established to standards outlined in section 7.0 and have been signed off by an appropriate auditor (Council and/or DLWC officer), the installation of the first 12 cabins can begin. Once the installation of the first 12 cabins has begun the stage 2 revegetation works should be implemented.

…

19 Figure 6, “Koveda Holiday Park Revegetation Plan”, referred to in the extract above, identified four stages of cabins and five planting regimes.

Construction certificate

20 A CC was issued under s 109C(1)(b) of the EP&A Act by Mr Norris on 20 November 2006 for stage 1 (relocation of 12 cabins). The Principal Certifying Authority’s certification statement states:

I, Warrick Norris, certify, that building work completed in accordance with documentation accompanying the application for the certificate [with such modifications verified by the certifying authority as may be shown on that documentation] will comply with the requirements of this Regulation as are referred to in section 81A(5) of the Environmental Planning and Assessment Act 1979.

General Terms of Approval (GTA)

21 Condition 6 of the cabins consent requires compliance with the GTA issued by the Department which became Appendix A to the cabins consent. Clause 1 states:

Requirement for permit

1. Any work which requires a permit under Part 3A of the Rivers and Foreshores Improvement Act 1948 (“Part 3A permit”) is not to commence until such time as a Part 3A permit has been applied for, and subsequently issued by DIPNR. Any work the subject of a Part 3A permit must be carried out in accordance with drawings and any plans required by these conditions, and approved by DIPNR

, and which will accompany the Part 3A permit.

22 A chronology of key dates relevant to the respective parties’ cases follows:

(i) In Dennis Gelle Pty Ltd and Anor v Baulkham Hills Shire Council [2001] NSWLEC 229 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, the Court in proceedings No. 11163 of 2000 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 the Department for submission of the development application for the relocation and installation of the 47 cabins

(iv) June 2002, the Department sought further information and a copy of the EIS was provided to it.

(v) 13 January 2003, the Department 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, the Department requested further information about the proposal.

(viii) 23 April 2003, An application was lodged with the Department 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, the Department issues its 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 the Department.

(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 the Department. 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 Limited paid to the Department a bond of $58,135 in the form of bank guarantee for construction of earthworks associated with the “rock wall”.

(xiv) 2 October 2003, the Department issued a Pt 3A permit pursuant to the RFI Act to Dunkview, 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) First week of December 2003, Ms Payne and Ms Nagel of the Department 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, the Department wrote to Dunkview regarding the possibility of modifying the VMP, and required objectives.

(xvii) 10 March 2004, the Department wrote to Dunkview regarding review of the VMP by the Department and issues to be incorporated into the amended VMP.

(xviii) 5 May 2004, the Department 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 LG Act.

(xx) 26 April 2005, Mr Robert Dennis 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 Dennis of the Council regarding installation of two new cabins to replace old cabins upon the holiday park.

(xxii) 6 May 2005, Mr Dennis 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.

(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, the Department wrote to Dunkview regarding potential refund of security bond.

(xxvii) August 2005, landscape works inspected by Hans Schroo of the Department.

(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, the Department received from Dunkview a replacement bond of $7,920 and the Department returned to Dunkview the Bank Guarantee of $58,135.

(xxxiv) 21 February 2007, Mr Madsen renewed the Pt 3A permit.

(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 the Department.

Council’s witnesses

Kristine McKenzie

23 Ms Kristine McKenzie, Town Planning Co-ordinator at the Council, swore an affidavit on 28 June 2007 and gave oral evidence. A number of documents said to form part of the approval are annexed to her affidavit. These are:

(i) The notice of determination and conditions, dated 1 August 2003, to development application 2430/03/HE.

(ii) The EIS prepared by Integrated Site Design (ISD), dated June 2002.

(iii) A letter to ISD dated 28 March 2003 from Council requesting various information relating to relocation and installation of cabins.

(iv) A letter from ISD in reply dated 8 April 2003.

(v) A letter dated 15 April 2003 from ISD attaching advice from Martens and Associates in relation to sewage management information requested in Council’s letter of 28 March 2003.

(vi) A letter from ISD to Council dated 21 May 2003 in relation to cultural heritage assessment and a plan of the anticipated staging for the proposal.

(vii) A letter from ISD to Council dated 22 May 2003 in relation to consolidation of lots at the site.

(viii) A further letter from ISD to Council dated 25 June 2003 in relation to proposed placement of cabins relative to the rock works.

(ix) A photomontage view of the proposal prepared by Haycraft Duloy.

24 A plan “DA-11” (dated May 2003) from ISD, tendered as exhibit B, was attached to the letter dated 21 May 2003 sent from ISD to Ms McKenzie ((vi) in the list above) and depicts the four proposed stages of the development of the holiday park based on anticipated planting of vegetation. A notation on the plan states that “[c]abins will not be installed on sites until the riverside plantings in front of each site are sufficiently mature. The anticipated growth period for each group is 18 months to 2 years. Based on the staging shown, the last group will not be installed until 8 years after stage 1 commences”.

Suzan Lucas

25 Ms Suzan Lucas is Tree Management Co-ordinator at the Council and swore an affidavit on 20 February 2008. She conducted an inspection on 19 February 2008 of the landscaping at the holiday park and is of the opinion that it is not in accordance with the approved plan, in breach of condition 30. Her opinion is based on various factors including the fact that there should be dense vegetation screening the river as well as a variety of plant species. This evidence was admitted subject to weight.

Sharelle Payne

26 Ms Sharelle Payne, a Senior Natural Resource officer in the Licensing Branch of the Department, swore affidavits on 27 June 2007 and 21 December 2007 and gave oral evidence. She has occasionally reviewed certain matters relating to approvals granted to the First Respondent and provides in her first affidavit a history of the matter relating to the Pt 3A permit. Ms Payne notes that between September 2003 and May 2004 the Department held discussions with Mr Madsen, director of the First Respondent, regarding the quantum of the security deposit to be paid to the Department covering the cost of the revegetation works associated with the construction of the rock wall. A revised cost schedule in relation to the cost for the VMP was forwarded to Dunkview Pty Ltd, the then registered proprietor of the holiday park, as a result, following which the bond of $58,135 was returned. At the time of her first affidavit, Ms Payne found no departmental record for the issue of a Pt 3A permit for the cabins consent, nor had the Department provided written advice that condition 30 had been satisfied.

27 In oral evidence, Ms Payne stated that she was not the assessing officer for the Pt 3A permit issued. That was Ms Nagel in the Department. The person who issued the permit was Mr El-Chamy or his delegate. Mr Paul Byrne issued the permit for DA 2770, which was the consent for the riverbank rock scour, under delegation. Ms Payne acted in Mr El-Chamy’s position for a period. She agreed that comparing the original VMP lodged to the amended VMP (fig 6), the amount of dense river flat forest treatment No 1 was substantially reduced, and the open grassy river flat forest treatment No 2 was substantially increased in terms of area of coverage. The description of it as a fire retardant screen was entirely consistent with it being a screen for the cabins. She became aware in December 2003 that cabins were to be erected. She had not read the development application for the cabins. The Department refunded most of the bond but for the maintenance component of the bond, as a consequence of satisfaction that it had been carried out in accordance with the plan.

28 The consultative process prior to the agreement to amend the VMP was with Ms Nagel, Ms Payne and Mr El-Chamy between February and May 2004. The assessing officer was probably aware of the proposal to develop the land by putting 47 cabins on it.

29 At the meeting on 29 September 2003, Mr Gelle showed a plan to those at the meeting. Ms Payne disputed it was the plan shown to her by Mr Howard in cross-examination. She was aware in 2004 there were going to be cabins in this area, but not how many. The Department’s concern is riverbed and bank stability. She agreed that the file note (attached to her affidavit) prepared following the 9 December 2003 meeting on site refers to detailed discussion of cabins and views. The file note shows there was detailed discussion about the VMP prior to inspection of the rock wall.

30 In her second affidavit, Ms Payne denies the conversations of 29 September 2003 between herself, Mr El-Chamy, Mr Gelle and Mr Madsen referred to “cabins” as outlined in Mr Madsen’s affidavit of 2 November 2007. Ms Payne states she had no knowledge at that time of the cabins consent and denies that she told Mr Madsen and Mr Gelle that to consider the matter the Department would need a concept plan. She denies any negotiations concerning the development involving the 47 new cabin sites occurred at the meeting.

31 The meeting with Ms Payne, Ms Nagel, Ms McKenzie and Mr Madsen at the holiday park on 9 December 2003 was in relation to the rock wall, at which time no amended VMP had been submitted. Ms Payne’s file notes of that inspection note the VMP dated 2 October 2003 does not extend beyond 235m. The cabins were not discussed on this occasion. Ms Payne became aware of the cabins consent when told by Ms McKenzie of the Council at the inspection on 9 December 2003. She states that the Department has no role in any landscaping with respect to cabins and states that any negotiations she had with Mr Madsen were only in respect to the rock wall, not the cabins consent.

32 Ms Payne spoke to Mr Freimanis, consultant to the First Respondent, on 20 November 2007 and raised the fact that he had not mentioned in his report that palms and lomandra plantings had been planted at the holiday park. She states in her affidavit that due to the existence of palms and lack of eucalypts, inter alia, the Department is not satisfied that the plantings have been made in accordance with the amended VMP.

33 Ms Payne also states that it is the Department’s position that a Pt 3A permit is required for the installation of the 47 new cabins as it requires excavation within 40m of the riverbank. The digging of footings for the cabins is excavation for the purposes of the RFI Act. She disagrees with Mr Norris’ assessment in his affidavit that a Pt 3A permit is not required. The Department is currently assessing an application for a Pt 3A permit for the cabins that are yet to be installed, but is awaiting further information from Mr Madsen.

Robert Dennis

34 Mr Robert Dennis, Manager of Health and Environmental Planning and Protection at the Council, swore affidavits on 28 June 2007 and 18 December 2007 and gave oral evidence. On 6 October 2006, Mr Dennis, spoke to Mr Madsen in relation to the landscaping pursuant to the cabins consent, stating that the certification pursuant to condition 30 was needed from Council and the Department prior to any cabins being placed on site.

35 On 28 April 2005, Mr Dennis received a letter from Mr Madsen, asking whether he could install two new cabins on lot D in place of the old cabins he was required to remove in order to landscape, and then connect them to the existing septic tank temporarily. Mr Dennis replied by letter dated 6 May 2005, stating that he did not object to the existing septic tank being connected to the new cabins temporarily and also stating that Mr Madsen was still required to obtain approval for installation of the new cabins.

36 In cross-examination Mr Dennis said that he knew there were a number of old cabins on site intended for relocation which had been there for 20 years. He gave permission to Mr Madsen to use the septic tanks not the new sewerage plant for a temporary period of nine months. He knew there would be approval for 12 cabins. The old cabins were closer to the river than where the new cabins were proposed.

37 In his affidavit, Mr Dennis notes that his letter of 6 May 2005 was not an approval to demolish and install new cabins. At the time of swearing his second affidavit, Mr Dennis had not found any Council record of approval for the demolition of the old cabins.

38 Referring to the way the septic tanks were used as described in Mr Craig Bourke’s affidavit of 11 December 2007, Mr Dennis states that his letter of 6 May 2005 did not grant consent for use of the tanks in a way that sewage from cabin lots 40 and 47 was disposed through a pipe over the ground into the septic tank. Mr Dennis further states that sewage from cabins on lots 40 and 47 must be connected to a Council-approved on-site sewerage management system before they are occupied. Approval for the collection of sewage in a temporary septic tank has not been given by Council.

Deborah Mitchell

39 Ms Deborah Mitchell is an Environmental Health Officer at the Council and swore an affidavit on 10 July 2007 and gave oral evidence. She, along with Ms Kim Muffet, inspected the holiday park for compliance with the conditions of the cabins consent on 16 March 2007, 13 April 2007 and 4 May 2007. On these occasions, Ms Mitchell and Ms Muffet inspected the newly installed cabins and the carport structures for compliance.

40 Ms Mitchell did not observe during her inspections any flood roads or manoeuvering areas to the new cabins formed in accordance with condition 26, and noted that the approved on-site sewerage management system was not yet installed as at the date of her affidavit.

Kim Muffet

41 Ms Kim Muffet is a Senior Compliance Officer with the Council and swore affidavits on 29 June 2007 and 11 December 2007 and gave oral evidence. Ms Muffet conducted inspections with Ms Mitchell and took photographs of the cabins and carports which are annexed to her affidavit. The inspection on 13 April 2007 was conducted at a time when Council had received complaints that works had been undertaken without approval. Ms Muffet also conducted an inspection on 27 November 2007 with Mr Bourke.

Mr Bourke

42 Mr Craig Bourke, Environmental Protection Co-ordinator at the Council, swore an affidavit on 11 December 2007 and gave oral evidence. His evidence relates to a visit he made to the holiday park on 27 November 2007 with Ms Muffet in order to inspect the method of sewage disposal for the first two cabins while they were being occasionally occupied. Approval for the on-site sewerage management system had been granted on 8 August 2005. At the inspection, Mr Madsen told Mr Bourke that waste from the lot 47 cabin drained to the septic tank adjacent the lot 40 cabin which was installed at the same time as the cabins. Effluent was pumped in an above-ground line to an old septic tank, which Mr Bourke observed had become overgrown with grass and did not have a lid. A large number of mosquitoes were present. In Mr Bourke’s opinion, waste water from the cabins had not been pumped into the septic tank in some time.

43 Mr Bourke does not recall Mr Madsen telling him, during the inspection, that the septic tank was actually a collection well and part of the sewerage management system. Nor does he think Mr Madsen replied that he would “do what [Mr Bourke] would prefer” when Mr Bourke stated “the sewer is not acceptable”. Rather he recalls saying “fine” or “good” when Mr Madsen said “I can pump it back to the old part if you would prefer”. Mr Bourke’s opinion was that the present disposal arrangement was unacceptable. A few days later, Mr Bourke received photographs from Mr Madsen showing the septic tank cleaned with the lid replaced.

44 In cross-examination, Mr Bourke admitted when taking a photograph of the septic tank adjacent to the lot 40 cabin as annexed to his affidavit, he took Mr Madsen’s word that it was a septic tank, even though Mr Bourke stated in cross-examination that it actually appeared to be a collection well. Mr Bourke admitted being familiar with the basic components of the approved sewerage management system, and that the collection well outside the lot 40 cabin was recognisable as part of the new system. Mr Bourke stated that he based his affidavit on notes he had made after the inspection. He states in his affidavit that Mr Madsen referred to the well as a “septic tank” despite the First Respondent’s counsel stating that Mr Madsen had in fact not referred to it as a septic tank. Mr Bourke admitted that, at the time of the inspection and taking the photograph of the tank, his concern was where the effluent was going. The distinction whether effluent from the lot 40 cabin flows into a collection well or a septic tank is important as that impacts on the condition of the “final tank”. The amount of effluent in the septic tank would logically be less if occupation of the cabins were intermittent, but Mr Bourke maintains that what he saw was not effluent. Mr Bourke knew that the old septic tank had been in the holiday park for years. His conclusion in his affidavit that waste water from the two cabins had not been pumped into the old septic tank for some time was based only on a quick view on the inspection, and as such was speculation. Mr Bourke admitted that while the old septic tank was in an inadequate condition, the new lid and its cleaning rectified the situation.

45 In re-examination, Mr Bourke stated that the collection well, which is labelled a septic tank in his affidavit, could operate as a septic tank. He also stated that the septic tank with the overgrown grass was not operating as a septic tank. It was a matter of greater concern to Mr Bourke that the former tank was acting as a collection well, as there was no treatment and anyone could access it.

Respondents’ witnesses

Denis Gelle

46 Mr Denis Gelle, formerly a property development consultant, swore an affidavit dated 6 November 2007 and gave oral evidence. He was engaged by the First Respondent as an adviser on the application for the Pt 3A permit, development application for the relocation of 47 cabins and ancillary works as well as the modification application and Class 1 appeal to the Court. At a conference on 29 September 2003 Mr El-Chamy and Ms Payne of the Department with Mr Madsen and Mr Gelle discussed the VMP and the fact that the current landscape plan was onerous.

47 According to Mr Gelle in cross-examination, the meeting was called with a view to changing the landscaping regime in front of the cabins so that there was less vegetation, allowing filtered views. Mr Gelle was seeking less vegetation than that originally proposed between the cabins and the river. The Council was dependent on what the Department decided to do in relation to the proposal. Mr Gelle had many discussions with Mr Ron Zwicker of the Council about the issue and stated that Mr Zwicker would defer to the Department where there were different views as to vegetation amount. Mr Gelle knew that if the Department accepted the amended landscape plan it would be fundamentally different to that in the cabins consent.

48 Mr Gelle states in his affidavit that at the September 29 meeting with officers of the Department he indicated he wanted to avoid submitting landscaping plans more than once and wanted an approval of the landscape plan complying with the Department’s requirements for the rock wall as well as being compatible with the proposed cabins for the purposes of the Pt 3A permit. Mr Gelle also indicated that the landscaping shown on the cabins consent VMP accorded with the requirements of Mr Bourne and Mr Grace and that he and Mr Madsen had trouble with Mr Zwicker of the Council. Mr Gelle viewed the meeting as a chance to rectify things. After making suggestions for a new plan, the Department suggested that a concept plan would have to be submitted and that the Department could provide direction in effecting this by way of letter. Between November 2003 and mid-February 2004, Mr Gelle was instructed to engage Mr Freimanis of EcoHort Pty Ltd to prepare a new landscape plan and VMP which was lodged with the Department. Mr Gelle said to Mr Freimanis that he had spoken to the Department about the amended concept plan (as it was different to the previously approved plan) and had a letter dated 11 February 2004 from the Department addressed to Mr Madsen which identified specific objectives for the amended concept plan. On 5 May 2004 the Department wrote to Dunkview accepting the amended VMP.

Benny Madsen

49 Mr Benny Madsen, director of the First Respondent, swore three affidavits dated 2 November 2007, 26 and 27 February 2008 and gave oral evidence. Mr Madsen stated in cross-examination that in October 2003 he had two development consents, one for the rock wall and one for the cabins and he knew the cabins consent required a certain landscaping regime in front of the cabins. After September 2003 he set about exploring possibilities for changing the landscape at the front of the cabins along the river. He considered the VMP for the rock wall consent was more onerous than the cabins consent because the former had more plants. He denied he wanted to reduce the screening of the river so that the marketability of the cabins could be increased. He agreed access to the water via pontoons was provided for by the cabins consent VMP. He wanted something “a little less onerous” for the VMP for the cabins. He agreed that there was an oversight and plants were missing in front of cabin 47 and that 50 palms were planted not in accordance with the VMP. Regular supervision by Mr Freimanis meant sending him photographs of the vegetation taken every six months. Eight plants in front of cabins 40 and 47 were planted after the cabins were installed around 30 August 2007. The rest of the planting had been there for the entire two years since August 2005.

50 In his affidavit of 2 November 2007, Mr Madsen states he had a conversation with Ms Payne in December 2003 during which he said that the landscape requirements were too onerous, and the vegetation would be too dense. Mr Madsen engaged in negotiations with the Department in general to ensure that the landscape plan forming part of the Pt 3A permit applied to both the rock wall consent and the cabins consent and were not inconsistent. Upon a suggestion made by Ms Payne, Mr Madsen went to Haige Park in Canberra to inspect a particular landscape design, which he believed would be appropriate for the holiday park. Between November 2003 and April 2004 negotiations were held with the Department in relation to the requirements of the VMP, particularly the planting densities and width of the riparian zone. The amended VMP (granted by the Department by letter dated 5 May 2004) adopted a tree planting scheme similar to that in Haige Park. Mr Madsen carried out the landscaping according to the amended VMP in July 2005 under Mr Freimanis’ supervision. It was inspected by Mr Hans Schroo of the Department in August 2005. A report by Mr Freimanis, “Final Report for Revegetation Works on the Hawkesbury River at Ko-Veda Holiday Park, 2868 River Road, Wisemans FerryI” dated 30 August 2007, confirmed successful completion of the revegetation works along the 230m riparian zone at the holiday park and was sent to the Department. Based on quotes obtained by Mr Madsen, the cost of dismantling and relocating cabins on lots 40 and 47 is approximately $65,000.00.

51 In response to Mr Dennis’ affidavit of 18 December 2007 concerning the septic system, Mr Madsen stated that the meeting that occurred between him and Mr Dennis on 27 April 2005 at Council’s chambers regarded the demolition of the two old cabins and their replacement. Mr Dennis told Mr Madsen he would consider the matter following receipt of a letter from Mr Madsen. The septic tank referred to by Mr Dennis was not temporary, but rather a permanent collection well.

52 Mr Madsen stated that the stage 1 works that were completed prior to the issue of the CC by Mr Norris included construction of the main sewerage system, formation of flood access roads, construction of 50 per cent of the extended road (which is not sealed as a protective measure for later construction vehicle access), provision of services to the initial 12 sites and provision of revegetation and landscaping for the initial 12 sites.

53 In response to Mr Bourke’s affidavit, Mr Madsen states that Mr Bourke’s inspection on 27 November 2007 did not take place in the area where the sewerage management system is located. At the time of the inspection, pumps, blowers, a chlorination system, a collection well for cabins 47 and 40 and a 250,000 litre wet weather storage were in place at cost of about $200,000. Drainage lines to the effluent plant, pump stations for the southern cabins and collection well, power connection and sub-surface irrigation from the effluent treatment plant were not installed at the time of the inspection and would take about two weeks to install. Cabins 40 and 47 have gravity fed disposals for sewage to a well, pumping facilities from the holding well to the septic tank and a waste discharge facility from the septic tank to a seepage pit away from the river. Pumping from the holding well to the septic tank occurs infrequently and only when the tank is full. The septic tank specified by Mr Bourke is mostly full. Mr Bourke did not inspect pipes to or from the collection well and septic tank nor the area where the sewerage management system is. When Mr Bourke said to Mr Madsen that the “sewer was not acceptable”, Mr Madsen asked Mr Bourke what he would prefer.

54 Mr Madsen sent various documents to Mr Norris in relation to the CC and a letter in relation to the requirements of the cabins consent. The septic system was operational when the two cabins 40 and 47 were connected to the existing septic tank.

55 Fifty per cent of the extended internal access road has been built but not sealed and the flood access road has been built but not sealed. Mr Madsen did not consider it was necessary to go to the Council about the amended VMP. He denied he was trying to undo the constraints imposed by the Council’s cabin consent.

Mr Norris

56 Mr Warrick Norris, Director of Urban Approvals Pty Limited and Principal Certifying Authority, swore two affidavits dated 15 October 2007 and 26 February 2008 and gave oral evidence. He stated that he was appointed as a principal certifying authority over the cabins consent. His understanding of condition 2 was that the relocation was to take place over four progressive stages consistent with the EIS (at p 25), and that cabins could be installed upon the relocated sites in stage 1 and continued in stage 2. In relation to condition 23, Mr Norris considered that the excavation for the front footings for the cabins would be minimal so that it would not constitute “excavation” for the purposes of the RFI Act, and a Pt 3A permit would not be required. The Pt 3A permit with which Mr Norris was provided appeared to relate to works to be carried out within 40m of the bank of the river. Mr Norris is now aware that the Pt 3A permit, as issued, relates to a different development consent (2770/00/HC, the rock wall consent) which concerns the construction of a river bank rock scour. At the time, he was not aware of any consent other than the cabins consent. The reference to DA 2770/00/HC was of no consequence to him. What was relevant was that the permit he had been provided with referred to the riverbank for a length of 230m which covered the same length of riverbank as stage 1 of the cabins consent.

57 According to Mr Norris’ affidavits, while the Pt 3A permit shown to him had expired by the time the CC was issued, Mr Norris stated it was simply a matter of renewing it. He became aware that a separate Pt 3A permit was required for every development consent after he had a conversation with the Council and the Department sometime after 16 March 2007, at which time he was also told additional works would not necessarily be required “as a result of the cabins”.

58 In relation to condition 26, Mr Norris assumed that it only referred to the roads in stage 1, being 50 per cent of the access roads together with the flood evacuation road. Mr Norris believed it would be impossible to comply with both conditions 8 and 26 if the latter were taken to mean the whole of the access road. He believed that 50 per cent of the access road and flood evacuation road would be completed before issuing the CC. His interpretation of condition 26 was such that he needed to be satisfied that the works would be done, as, in reading the EIS, the staging required these works to be done as part of stage 1, which could not be completed prior to issue of the CC. Mr Norris was satisfied that 50 per cent of the access road and the flood evacuation road was complete before he issued the CC.

59 In cross-examination, Mr Norris stated that he did not understand that if 50 per cent of the access road only was to be constructed as part of stage 1 and the flood evacuation road, that it was to have been sealed before the issue of the CC. He did not turn his mind to whether or not the roads had been built before issuing the CC. He believed he needed an indication that the roads were to be sealed which he was provided with by the First Respondent.

60 In relation to condition 30, Mr Norris believed that, insofar as any inspection was required before issue of the CC, it was undertaken by the Department on 1 August 2005 (see letter at annexure A, second affidavit). In cross-examination Mr Norris considered he had to be satisfied before issuing the CC. He had the required advice in writing which he considered to be annexure A of his second affidavit (letter from the Department to Mr Madsen dated 10 August 2005). He agreed that document did not satisfy condition 30 to the full extent. He considered it required the written advice of the Council in relation to the subsequent installation of cabins. His understanding of condition 30 was that on completion of the initial stage of cabins the Council and the Department had to sign off on the vegetation prior to the CC being issued on the subsequent (second stage) installation of cabins. He did not understand that landscaping was required before the CC for the cabins could issue. He did not turn his mind to whether landscape works had been completed satisfactorily.

61 When asked in re-examination what parts of the letter dated 10 August 2005 from the Department to Mr Norris did satisfy condition 30, Mr Norris said that because a bond was paid back for landscape works that indicated to him that actual landscaping had been installed.

62 Mr Norris stated in oral evidence that he had not seen exhibit B (the staging plan for the cabins consent) until the week before the hearing and certainly not before issuing the CC. He stated in cross-examination that he thought he had all the material required by condition 1 and that did not include exhibit B. He had not seen a number of documents attached to Ms McKenzie’s affidavit which were the supplementary and additional material received by the Council. He did not make inquiries of the Council about what was the supplementary and additional information received. He considered there was a requirement for the relocation of the sites over four progressive stages. The first stage dealt with the installation of 12 cabins. He considered 12 cabins could be installed under stage 1. The EIS does not say that there was not to be installation of 12 cabins in stage 1. He considered that authorised him to approve all 12 cabins in stage 1.

63 When shown the note on exhibit B under stage 2 indicating that “[i]nstallation of group 1 cabins will not commence until group 1 planting is sufficiently mature”, Mr Norris stated that he did not consider that constrained his approval of the initial stage of 12 cabins. He identified the Pt 3A permit he relied on (exhibit 1A). This was received with the initial lodgement of documentation by the First Respondent. The other document from the Department was annexure A to his second affidavit (dated 26 February 2008). He was not provided with any separate VMP. He was not aware when he swore his first affidavit that the Pt 3A permit related to the development consent DA 2770/00/HC for the rock wall rock scour protection. The reason he became aware of that different development consent (par 17 of his second affidavit) was that he noticed a different DA number on the Pt 3A permit.

64 Mr Norris did not read the judgment of October 2001 approving the rock wall which was annexure C to the EIS. He considered the Pt 3A permit related to the land the subject of the cabins consent. He made no inquiry before issuing the CC in reliance on it. He considered that as it was a Pt 3A permit that applied to the land it did not matter that it had expired.

Mr Freimanis

65 Mr Edgar Freimanis, Director of EcoHort Pty Limited, swore an affidavit dated 5 November 2007 and gave oral evidence. He was engaged by Mr Madsen and Mr Gelle to prepare a new landscape plan and VMP based on a landscape solution Mr Madsen observed in Haige Park and the letter received by Mr Madsen from the Department dated 11 February 2004 with a list of objectives. Mr Freimanis carried out regular inspections of the landscape works between 2004 and early 2007, and produced a detailed report on 30 August 2007.

66 In cross-examination Mr Freimanis stated that the amended VMP effectively reversed the placement of dense vegetation as indicated on the original VMP. Mr Freimanis’ amended VMP provided that, in the “wider areas”, there were to be essentially only canopy trees, casuarinas in particular. He agreed that this VMP was fundamentally different to the original, which also provided for a greater variety of canopy trees. While on a visit to the site to prepare his report in August 2007, Mr Freimanis noticed palm trees. These were not noted in his report and were specifically forbidden in the list of objectives in the letter from the Department to Mr Madsen dated 11 February 2004 (“no exotics (eg pine or palm trees) to be used in the proposed plantings”) and so were inconsistent with both the original and amended plans. Mr Freimanis stated that, despite the fact he notes in his affidavit that he visited the holiday park “regularly”, he could only recall making an inspection twice between 2004 and 2007 in addition to occasionally receiving photographs of the holiday park from Mr Madsen.

Exhibits 1 and 2

67 One of the issues raised in argument is whether the Department was aware of the cabins consent when it granted the amended Pt 3A permit in May 2004 with the amended VMP attached. Exhibit 1 was a letter from the Department to the Council dated 18 February 2003 referring to the integrated development application for the cabins consent and seeking further information before determination. The letter notes that the application is closely related to the rock wall consent for the purpose of bank stabilisation within lot D.

68 A bundle of documents comprising emails and file notes extracted from a file of the Department was relied upon by the First Respondent and tendered as exhibit 2. In one such file note, Ms Nagel notes a meeting with Ms Payne on 22 January 2004 in which vegetation and rock wall issues were discussed and a note was made that any plan must be approved by the Council in relation to cabin screening. A file note of Ms Nagel following a conversation with Ms Payne on 23 January 2004 addresses the VMP and outcomes necessary for any revised plan.

69 A file note dated 11 February 2004 of Ms Payne refers to a conversation with Ms McKenzie in relation to the Council’s position on a possible amended VMP for the foreshore plantings between the river and the cabins. The note states “[i]f the department accepts the amended concept it should provide adequate screening of the cabins from the water and provide filtered views from the cabins through the tree trunks to the river”. She notes Ms McKenzie said the Council would be prepared to consider an amended concept if it provided visual amenity and screened the cabins from the river. She noted that the objectives of an amended concept would include the screening of cabins from the water and improved visual amenity when the cabins are viewed from the water. (The cabins consent was granted in August 2003. The Pt 3A permit was issued in October 2003)

Council’s submissions

(i) particular breaches of cabins consent alleged

70 The FAPOC are detailed and largely set out above at par 5. They disclose the substantial part of the Council’s case in relation to the specific breaches of conditions alleged.

71 In relation to the First Respondent the following conditions of consent are alleged to have been breached. Condition 1 was breached because of the failure to comply with the EIS, the VMP annexed to it and the staging plan (exhibit B). The breach was the failure to install the two cabins 40 and 47 before the required vegetation regime under the VMP was in place in front of the cabins. Further, the vegetation in place was not sufficiently advanced.

72 Condition 2 was breached because the cabins were not installed in accordance with the EIS and otherwise the same breaches apply as for condition 1. Condition 6 was breached because the required permit under Pt 3A of the RFI Act had not been obtained for works required by the cabins consent before the carrying out of those works, in particular the construction of cabins. Condition 23 was breached because documentary evidence of the Pt 3A permit was not provided by the First Respondent before the CC was issued. Additionally, no documentary evidence of a Pt 3A permit for all works for which the CC was sought was issued prior to the issue of the CC.

73 Condition 30 was breached because the required inspection of landscape works by the Council and an officer of the Department and notification of those inspections did not take place before the cabins were installed. Condition 41 was breached as no work was to commence on site until a Pt 3A permit had been issued by the Department and this did not occur before the cabins were installed.

74 Condition 22 requires the approval of the installation of an onsite sewerage system before the issue of the CC. This approval was provided by the Council on 8 August 2005. In breach of condition 46, which requires the installation of the system before the occupation of the cabins, the two cabins constructed have been occupied before completion of the installation of the systems.

75 Breaches of several of the same conditions as are alleged against the First Respondent are also alleged in relation to Mr Norris, the private certifier who issued the CC under challenge. Condition 1 is alleged to have been breached because the cabins consent required that no cabins be erected in stage 1 or, alternatively, not all 12 cabins could be erected in stage 1. The staging on p 25 of the EIS required landscaping work before cabin installation. Condition 23 was breached as no Pt 3A permit had been issued in relation to the cabins consent or the subject matter of the CC prior to the CC being issued. Condition 30 was breached because the required inspections of landscaping works or evidence in writing that these occurred was not provided before the CC was issued.

76 A breach of condition 26 is alleged as against Mr Norris, not the First Respondent. The condition was breached because the development consent required 50 per cent of the extended road be constructed and the construction of the flood evacuation road and that had not occurred before the CC was issued.

77 The Council argued that Mr Norris did not satisfy himself or could not rationally have satisfied himself about the matters required to be satisfied before the issue of the CC. Such satisfaction was so unreasonable that no reasonable principal certifying authority could have been so satisfied.

(ii) whether construction certificate valid

78 There is a requirement under the cabins consent to obtain a CC in relation to matters other than those referred to in s 81A(2) of the EP&A Act (which refers to the erection of buildings). Section 81A does not “cover the field” in terms of what a CC can be required for. For example, the cabins consent condition 8 required a CC before each proposed stage of the development. The EP&A Act provides a general power to impose conditions in s 80A and these have been imposed in relation to the stages referred to in conditions 1 and 2. The EIS identifies each stage in section 4.8 at pp 24 and 25 (par 17). The CC is on its terms about stage 1 as it refers to approval for relocation of 12 cabins. The CC was a critical part of the phased carrying out of the cabins consent as identified in the conditions of consent.

168 Condition 1 states that the development application is to be carried out substantially in accordance with, inter alia, the EIS. Condition 2 requires the installation of cabins in accordance with the stages detailed in the EIS. The Council argued that certain landscaping works specified in section 6.12 of the EcoHort report dated June 2002 had to be carried out before the CC for the installation of the initial cabins could be issued. The key parts of the EIS relied on by the Council (pp 24-25) are set out at par 17 with the four stages described. Stage 1 refers to the provision of vegetation and landscaping for the initial 12 sites. Stage 2 refers to the ongoing installation of cabins on the initial 12 sites established in stage 1.

169 According to Mr Norris’ evidence (summarised at par 56 and following above) before issuing the CC he considered whether condition 2 had been satisfied. He read the EIS. His understanding was that the relocation was to take place over four stages consistent with the EIS at p 25 and that cabins could be installed upon the relocated sites in stage 1 and continued in stage 2. He considered 12 cabins could be installed in stage 1. While part of the EIS and the VMP set out above (see par 17 and 18) refer to the vegetation being put in place before each stage of the cabins are installed, that is part of the extensive material in the EIS and its attachments. Provided the staging is generally in accordance with the EIS conditions 1 and 2 can be satisfied. The relevant satisfaction is that of Mr Norris when he issues the CC.

170 Further, the decision of this Court in Gelle has no role to play in interpreting the cabins consent. While it is attached to the EIS it cannot provide any guidance on the specific obligations to be imposed under the cabins consent.

171 In my view there is ambiguity in the description of the stages in the EIS and this must be construed against the Council. When the description of the staging on pp 24-25 of the EIS is considered this suggests that up to 12 cabins can be installed in stage 1. Mr Norris’ view to that effect was open to him and was not unreasonable in the Wednesbury sense. Whether the staging in the EIS requires vegetation to be in place before any cabins are installed now needs to be determined in the context of the other breaches of conditions alleged against Mr Norris.

(c) construction of conditions 1, 2 and 30 to determine what Mr Norris had to be satisfied about

172 The Council argued that Mr Norris had to ensure compliance with condition 30 before the CC was issued and he failed to do so. The obligation to comply with conditions 1 and 2 does not fall directly on Mr Norris given his role as certifier and the structure and wording of the consent. There is no specific reference in those two conditions to matters having to be satisfied before the issuing of a CC. The part of the consent which is headed “prior to the issue of a construction certificate …” is before conditions 22-30. That provides an important guide to those matters about which Mr Norris had to be satisfied before issuing the CC. Condition 30 states specifically that it must be satisfied before a CC can issue. Conditions 1 and 2 are linked to condition 30. That condition requires that before the CC is issued evidence in writing from the Council and the Department of the satisfactory completion of landscape works before each stage of the development is provided.

173 In order to understand the obligation Mr Norris did have under condition 30, he did have to be aware of the staging of works in relation to landscaping proposed under conditions 1 and 2. His evidence is that he read the EIS. Mr Norris’ evidence of his understanding of condition 30 (par 60) was that after completion of the initial stage of cabins the Department and the Council had to sign off on the vegetation. The Council submitted this interpretation amounted to a breach of cl 146(c) as that was a matter about which he was required to be satisfied before the CC could issue for the first stage of the cabins.

174 Mr Norris’ counsel submitted (par 120-121) that condition 30 is limited by the words “each subsequent stage of cabins” in the second sentence. Further, conditions 8 and 30 had to be read together. Condition 8 requires that a CC must be issued before each stage of installation of the cabins so that condition 30 applies to the subsequent stages of cabins only, as is stated in the second sentence of the condition. Such a construction is necessary in order to give effect to otherwise conflicting conditions.

175 Where there is ambiguity or uncertainty in the conditions of consent these must be construed against the Council. I have held above (par 171) that Mr Norris’ construction of the development consent that twelve cabins could be constructed in stage 1 under the staging proposed in the EIS was open to him. Given that stage 1 (set out at par 17) includes the provision of landscaping and the installation of cabins suggests that both can be done in stage 1 at the same time. This approach is confirmed by the submissions of Mr Norris’ counsel in the previous paragraph.

176 Further, as submitted in the alternative by Mr Norris’ counsel, if condition 30 did require that Mr Norris’ satisfied himself about landscaping through notification from the Department and the Council, it was reasonable for him to rely on the letter from the Department refunding a substantial part of the bond following inspection of the planting. While the Council relied on Mr Norris’ oral evidence that he did not consider the adequacy of the landscaping at all before issuing the CC, I have held that he was able to be satisfied. Accordingly cl 161(2) of the Regulation applies and the Council is taken to be satisfied. The Council has not established a breach of condition 30 by Mr Norris.

(d) construction of conditions 1, 2 and 23 - Was Mr Norris reasonably satisfied that Pt 3A permit had issued?

177 Condition 1 states “…except where amended by the following conditions of consent”. Condition 6 requires compliance with the GTA attached as appendix A to the cabins consent. The GTA refer to the requirement to obtain a Pt 3A permit. As submitted by the First Respondents, the obligation to obtain a Pt 3A permit arises under the RFI Act not the EP&A Act. There is no necessity for a particular permit to be tied to a particular development consent in order for the Pt 3A permit to be required (Maule v Liporoni Lloyd J at [85]). Condition 23 requires evidence that the Pt 3A permit under the RFI Act has been issued prior to the issue of the CC.

178 As identified in the bold items in the chronology (par 22), the rock wall consent was granted by the Court in October 2001 enabling a rock wall to be built along the river in front of stages 1 and 2 of the cabins consent. Stages 3 and 4 of the cabins consent are outside the area of this consent. The Pt 3A permit was applied for by the Department in April 2003. The cabins consent was issued by the Council on 1 August 2003. The Pt 3A permit was issued in October 2003 with the same VMP as that attached to the cabins consent. The Amended Pt 3A permit issued by the Department on 5 May 2004 included the amended VMP prepared by Mr Freimanis. That related to the same land along the riverbank as the earlier VMP referred to in the EIS for stages 1 and 2 of the cabins.

179 The Council argued that no Pt 3A permit has been issued for the cabins consent, only for the earlier rock wall consent. The evidence of Ms Payne of the Department to that effect was relied on. The Council also relied on the fact that the Pt 3A permit referred to the development consent for the rock wall by its DA number and the description of the work to be undertaken as “to undertake earthworks associated with the construction of river bank rock scour protection (rock rip rap) for …approximately 230 m of the bank”.

180 Mr Norris considered that the excavation for the two front footings of each cabin just inside the 40m riparian zone was minimal and would not constitute “excavation” for the purposes of the RFI Act so that no Pt 3A permit would be required. This is disputed by the Council and the Department. Further, he was provided with a Pt 3A permit that related to 240m along the riverbank which was the same area of land as the cabins consent for stages 1 and 2. While it had expired, he was aware that permits could be reissued if needed as they lasted for only twelve months.

181 Mr Norris’ satisfaction in relation to condition 23 depends on whether it was reasonable for him to consider that the Pt 3A permit issued in October 2003 and amended in May 2004 applied to the cabins consent. The Pt 3A permit was issued after the cabins consent. The area of land along the riverbank addressed by the amended VMP annexed to the Pt 3A permit is the same area of riverbank as for stages 1 and 2 of the cabins consent. The VMP attached to the EIS for the cabins consent cannot be implemented at the same time as the VMP attached to the Pt 3A permit for the area of riverbank in front of stages 1 and 2 of the cabins as the plans provide for different vegetation to be planted.

182 Condition 6 and the GTA refer to the Pt 3A permit under the RFI Act. No further detail of the nature of the Pt 3A required is provided. As the amended Pt 3A permit was issued after the cabins consent was granted it was not unreasonable (in the Wednesbury sense) for Mr Norris to believe that the permit was issued pursuant to condition 6 and therefore satisfied condition 23 of the cabins consent. The circumstances suggest it was open to Mr Norris to conclude as he did that condition 23 had been satisfied before issuing the CC. The Council has not established a breach of condition 23 by Mr Norris. It follows that no breach of the relevant provisions of the EP&A Act by Mr Norris has been established.

Did the Part 3A permit issued apply to the cabins consent?

183 Given my finding above concerning Mr Norris’ satisfaction in relation to condition 23, it is unnecessary in terms of the CC for stage 1 presently before me to determine as a matter of law whether the Pt 3A permit issued by the Department relates to the cabins consent. Whether there could be a separate breach of the RFI Act due to a failure to obtain a Pt 3A permit in relation to the stage 1 cabins is not a matter before me. An issue could arise for stage 2 of the consent. If I find that no Pt 3A permit required by the RFI Act has been issued in relation to the cabins consent Mr Norris cannot then issue a CC for stage 2 of the consent on the basis that condition 23 has been complied with until one has been issued.

184 As the Respondents argued, condition 1 which states that it is subject to other conditions of consent can be amended by condition 6, and by a Pt 3A permit if issued by the Department pursuant to that condition. If I find that the Pt 3A permit already issued was issued pursuant to condition 6 that will vary condition 1 in relation to the vegetative regime required on the riverbank from that contained in the VMP in the EIS for the cabins consent.

185 The First Respondent argued the Pt 3A permit was issued by the Department with knowledge of the cabins consent. There is conflicting evidence on this issue. The evidence of Mr Gelle and Mr Madsen (par 46-55), contrary to that of Ms Payne for the Council, suggests that the issue of the vegetation in front of the cabins in stages 1 and 2 was squarely raised in discussions with the Department on 29 September 2003. Mr Gelle stated (par 47) that the meeting was held with a view to changing the landscaping regime in front of the cabins so that there was less vegetation than was originally proposed between the cabins and the river. He had been told by Mr Zwicker from the Council that the Council would defer to the Department in relation to vegetation. He stated at the 29 September 2003 meeting that he wanted to avoid submitting landscaping plans more than once and he wanted a VMP which satisfied the rock wall requirements and the cabins consent. Mr Madsen stated (par 50) that he told Ms Payne the vegetation was too dense and that he engaged in negotiations to ensure the rock wall consent and the cabins consent were not inconsistent. He had negotiations with the Department between November 2003 and April 2004 in relation to varying the planting densities and width of the riparian zone. That is clear also from the Departmental file note in evidence. Ms Payne’s evidence (par 30) contradicts that of Mr Madsen and Ms Gelle in that she has no recollection of matters related to the cabins consent being raised at the 29 September meeting.

186 The evidence establishes that the Department was aware of the cabins DA as its consent as land owner was sought in relation to it in May 2002, the EIS for the cabins consent was provided to the Department in June 2002 and its owner’s consent was provided for the DA in January 2003. The cabins consent was issued in August 2003 and a copy sent to the Department by Ms McKenzie of the Council on 12 August 2003. The Pt 3A permit which had been applied for in April 2003 was issued in October 2003 with the same VMP as that attached to the cabins consent. Subsequently that VMP was amended in May 2004 in the amended Pt 3A permit. While Ms Payne stated that she was not aware of the cabins consent until December 2007 it is necessary to observe that the officers of the Department who had most involvement in the issuing of the Pt 3A permit, being Ms Nagel, the assessing officer, and Mr El-Chamy under whose delegation the permit was issued have not given evidence. The file notes contained in exhibit 2 (par 68) suggest that the intention of the First Respondent to install cabins was well known to officers of the Department. It also appears from the file notes of the Department that officers of the Council were aware of the cabins consent.

187 None of this evidence overcomes the circumstance that regardless of what Mr Gelle and Mr Madsen considered they were doing, no application had been made in writing on the form approved with the required fee for the footing of the cabins to be constructed on the land as is required by s 22C(1)(a) and (b) of the RFI Act. According to the evidence of the Department’s officer Ms Payne the excavation for the front cabin footings does require a permit under the RFI Act. The statements of Ms Payne that the Pt 3A permit for the rock wall consent did not relate to the cabins consent on its face is technically correct in that the Pt 3A permit on its face refers to the DA 2770/00/HC for the rock wall and the description of work is that approved in the rock wall consent. On Mr Norris’ evidence minimal excavation for the front piers of the cabins, which are just inside 40m from the riverbank, is required suggesting a Pt 3A permit for the cabins consent would only be directed to a small area of the land in stages 1 and 2 of the cabins consent.

188 Nevertheless, the Pt 3A permit that has been issued has varied the cabins consent in relation to the area of riverbank in front of stages 1 and 2 because a different VMP has now been implemented for the same land. Mr Madsen had to comply under the RFI Act with the Pt 3A permit issued by the Department in May 2004 and has done so.

189 The Council argued that it is not open in a Pt 3A permit process in relation to integrated development to alter fundamentally a development consent, relying on Winn and Mison, so that the development consent is paramount and cannot be fundamentally interfered with. That submission is not in accord with the cabins consent which provides that condition 1 can be varied by subsequent conditions such as condition 6. The Council submitted (par 94) that the Pt 3A permit should be “read down” as beyond the power conferred in s 93 of the EP&A Act. How that can occur when there are two conflicting VMPs for the same area of land and one has been implemented is unclear. No order is sought in relation to the Pt 3A permit issued by the Department so there is no basis on which I consider I can “read it down” as a legal matter. This finding applies regardless of my finding that no Pt 3A permit has issued for the cabins consent as the Pt 3A permit issued does relate to land the subject of the cabins consent in any event.

190 I am aware from the evidence that another Pt 3A permit application has been made to the Department by the First Respondent in relation to the cabins consent (once again under the RFI Act although I note that Act has been subsequently repealed). I am not aware how much of the land in front of stages 1 and 2 of the cabins consent along the riverbank is required to be dealt with in that permit application. Any obligation to comply with a permit under the RFI Act will apply to any new permit issued. Realistically, given that the Department has already issued a Pt 3A permit with a VMP over the land in stages 1 and 2 of the cabins consent that has been implemented and a substantial part of the bond returned to the Department in relation to it, any requirements for vegetation attached to any further Pt 3A permit issued in relation to the cabins consent will need to take that into account.

191 An alternative approach identified by the First Respondent in par 113 is that there is not a conflict with the Pt 3A permit including the amended VMP issued by the Department. The First Respondent cannot physically comply with both VMPs on the evidence of Mr Freimanis and the Department. The First Respondent has (generally) complied since July 2005 with the VMP attached to the Pt 3A permit. Where there is such inconsistency, as the First Respondent submitted, the preferable course is to construe the instruments to give them effect. That is achieved by accepting that the Pt 3A permit has amended the cabins consent in relation to the VMP. There is much to commend in this approach. In view of my finding that a Pt 3A permit for the cabins consent has not been issued and a permit for at least part of the land within 40m of the riverbank for stages 1 and 2 of the cabins consent has been applied for, I am not able at this point to completely adopt that approach without knowing what is required to be the subject of the permit application now submitted.

192 Finally, had I found there was a breach of conditions concerning a failure to obtain a Pt 3A permit before issuing the CC, there are several matters in the evidence suggesting that the primary relief sought by the Council (declaration of invalidity of the CC and removal of cabins) ought not to have been granted on discretionary grounds. The evidence before me suggests that at least two of the Council’s officers, Mr Zwicker and Ms McKenzie, were aware of the negotiations between the Department and Mr Madsen for an amended VMP in the Pt 3A permit process. According to Mr Gelle, Mr Zwicker advised him that the Council would defer to the Department on matters of vegetation. What has actually occurred at the holiday park in terms of planting of vegetation since 2005 would also have been highly relevant to such a discretionary consideration.

(e) satisfaction of condition 26

193 As submitted by the Respondents, the conditions of consent must be read as a whole. If read literally conditions 26 and 8 cannot both apply. Condition 8 requires a CC before the commencement of any works suggesting no road works can be done before a CC is issued. If strictly applied no road work under condition 26 can be done before a CC is issued. This suggests the interpretation argued for by the Council whereby a substantial part (50 per cent) of the road works must be done before the stage 1 of the cabins consent is not correct cannot be correct.

194 In relation to condition 26 concerning roads, Mr Norris assumed this referred only to the roads in stage 1, requiring 50 per cent of the access roads and the flood evacuation road to be constructed before the CC was issued. He considered this work would be completed before issuing the CC. That interpretation was open to him. I otherwise agree with these submissions of Mr Norris’ counsel in par 134-135. I consider no breach of condition 26 by Mr Norris has been established.

195 I have held the CC was validly issued by Mr Norris and the two cabins authorised to be constructed for stage 1 are validly constructed. As identified in par 150, the work carried out under the CC is done under the development consent. There cannot therefore be a separate breach by the First Respondent of the same conditions of consent which I have found Mr Norris has satisfied in relation to stage 1 of the cabins consent. While the Council argued that there was separately a breach of condition 2 by the First Respondent under the development consent which did not depend on a finding of validity of the CC that cannot be correct given the construction of the consent that I have adopted.

Breach of condition 41 by the First Respondent

196 As identified in the FAPOC a separate breach of the development consent by the First Respondent is alleged in relation to condition 41 which requires that no works are to commence on site until a Pt 3A permit required under the provisions of the RFI Act had been issued. Given my conclusion that the CC was validly issued it is not clear how a separate breach of condition 41 by the First Respondent can arise in these circumstances, as already noted at par 150.

Breach of condition 46 by the First Respondent

197 As identified in the FAPOC a separate breach of the cabins consent by the First Respondent is alleged in relation to condition 46 concerning the failure to install an onsite sewerage management system prior to the occupation of the cabins.

198 The Council relied on the evidence of Mr Dennis and Mr Bourke to establish a breach of condition 46 by the First Respondent. The evidence of Mr Bourke in particular was quite extensive concerning the lack of adequacy of the sewerage arrangements for the cabins on lots 40 and 47 which both drained to a septic tank/collection well which he considered unsatisfactory. Mr Dennis’ evidence was that no consent had been given for disposal of sewerage from the cabins in this way.

199 Mr Madsen stated that Mr Bourke’s inspection did not include the sewerage management system then in place. He outlined the system in place for sewerage disposal for cabins 40 and 47. His evidence is that the stage 1 works completed before the CC was constructed included the main sewerage system. He had spent about $200,000 to carry out all the work identified in par 53. At the time of the inspection by Mr Bourke further works to be done relating to drainage lines inter alia were estimated to take about two weeks. The septic system that had been in place was operational when the two cabins 40 and 47 were connected. The First Respondent essentially conceded that a technical breach occurred but there was no environmental impact as a result.

200 It appears that there was a breach of condition 46 but that is a matter that has possibly already been or can be readily remedied. Advice as to whether orders are sought by the Council is required.

Breach of condition 5 by the First Respondent

201 As identified in par 6, the First Respondent admits that there has been a breach of condition 5 in relation to the cabin on lot 40. What orders are sought in relation to this breach need to be clarified with the Council.

Conclusion

202 The Council has not established the substantial breaches of the development consent alleged by one or both Respondents in relation to Conditions 1, 2, 6, 23, 26, 30 and 41. There are breaches of conditions 5 and 46 by the First Respondent. What orders if any are sought in relation to these must be clarified with the Council as the substantive relief sought related to the breaches which have not been found proved. The issue of costs must also be considered.

CITATION:	Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd & Anor [2008] NSWLEC 181
PARTIES:	APPLICANT Baulkham Hills Shire Council FIRST RESPONDENT Ko-veda Holiday Park Estate Ltd SECOND RESPONDENT Warrick Norris
FILE NUMBER(S):	40625 of 2007
CORAM:	Pain J
KEY ISSUES:	Judicial Review :- whether breach of multiple conditions of development consent - whether construction certificate issued in breach of conditions of consent - whether construction certificate invalid Development Consent :- construction of development consent - whether documents on Council file part of development consent - whether staging in environmental impact statement being implemented as required in development consent Construction and Interpretation:- whether Part 3A permit under Rivers and Foreshores Improvement Act 1948 amends development consent conditions issued under Environmental Planning & Assessment Act 1979
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 4, s 81A, s 109C, s 109F Environmental Planning and Assessment Regulation 2000 cl 145, cl 146, cl 147, cl 161 Interpretation Act 1987 s 35 Local Government Act 1993 s 68 Rivers and Foreshores Improvement Act 1948 Pt 3A
CASES CITED:	AGC (Advances) Ltd v Roads & Traffic Authority of NSW (1993) 30 NSWLR 391 Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd; Weston Aluminium Pty Ltd v Environment Protection Authority and Anor (2006) 148 LGERA 439 Anderson v Minister for Infrastructure Planning and Natural Resources and Ors (2006) 151 LGERA 229 Auburn Municipal Council v Szabo (1971) 67 LGRA 427 Azzopardi v Gosford City Council & Anor (2002) 123 LGERA 118 Baulkham Hills Shire Council v Dix (2004) 136 LGERA 149 Brickworks Limited v The Council of the Shire of Warringah (1963) 108 CLR 568 Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Corowa v Geographe Point Pty Ltd (2007) 154 LGERA 117 Dennis Gelle Pty Ltd and Anor v Baulkham Hills Shire Council [2001] NSWLEC 229 Grace Bros Pty Ltd v Willoughby Municipal Council (1980) 44 LGRA 400 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; (2000) 106 LGERA 440 Katoomba Gospel Trust v Blue Mountains City Council [1994] NSWLEC 107 Lesnewski v Mosman Municipal Council (2005) 138 LGERA 207 Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695 Maule v Liporoni (2002) 122 LGERA 140 Mison v Randwick Municipal Council (1991) 73 LGRA 349; (1991) 23 NSWLR 734 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 Weston Aluminium Pty Ltd v Environment Protection Authority and Anor; Weston Aluminium Pty Ltd v Alcoa Australia Rolled Products Pty Ltd (2007) 156 LGERA 283 Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508
DATES OF HEARING:	26 February 2008 27 February 2008 28 February 2008 29 February 2008 6 March 2008 7 March 2008
DATE OF JUDGMENT:	4 July 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr A Galasso SC with Mr M Fraser SOLICITOR Baulkham Hills Shire Council FIRST RESPONDENT Mr T Howard SOLICITOR Hones La Hood SECOND RESPONDENT Mr A Pickles SOLICITOR Riley Gray Spencer