Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) - [2019] NSWLEC 171

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) [2019] NSWLEC 171
Hearing dates: 5-8 August 2019, 30 August 2019 (Applicant’s written submissions, 10 September 2019 (Respondent’s written submissions)
Decision date: 07 November 2019
Jurisdiction: Class 4
Before: Pain J
Decision:
(1) Complying Development Certificate No 14-0912 issued on 21 December 2015 is invalid and of no effect (Masterplan CDC).

(2) Complying Development Certificate No 14-0912-3 issued on 20 March 2017 is invalid and of no effect (MOD3 CDC).
(3) Complying Development Certificate No 14-0912-4 issued on 26 September 2017 is invalid and of no effect (MOD4 CDC).
Catchwords:
JUDICIAL REVIEW – validity of complying development certificate titled “Masterplan CDC” for land zoned industrial – whether proceedings statute barred – staged development cannot be subject of complying development certificate – development subject of Masterplan CDC impermissibly designated development – failure to comply with State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 means not complying development

JUDICIAL REVIEW – validity of two modifications of Masterplan CDC – failure to comply with State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 means not complying development

CIVIL ENFORCEMENT – deposition of fill without development consent – unauthorised deposition of fill in neighbouring council reserves – inadequate or no sediment and erosion control measures in place for fill deposition

CIVIL ENFORCEMENT – operation of resource recovery facility on land without development consent

CIVIL ENFORCEMENT – water pollution – fill and sediment deposited in creeks in neighbouring council reserves – respondent owner was occupier and arranged for fill to be placed
CIVIL ENFORCEMENT – substantial remedial orders sought – exercise of discretion whether to make declarations and remedial orders where substantial delay in commencement of enforcement proceedings by council
Legislation Cited: Environmental Planning and Assessment Act 1979 ss 1.4, 4.2, 4.28, 4.31, 4.59, 6.4, 9.46 (current), 4, 75W, 76A, 77A, 83B, 84, 85, 85A, 86A, 87, 91AB, 96, 101, 109C, 121B (previous)
Environmental Planning and Assessment Amendment Act 1997
Environmental Planning and Assessment Regulation 2000 cll 4, 6, 49, 118, 124, 129B, 130, 137, Sch 3
Gosford Development Control Plan 2013 Ch 6.7
Gosford Local Environmental Plan 2014
Land and Environment Court Act 1979 ss 25B, 25E
Local Government Act 1993 s 68
Protection of the Environment Operations (Waste) Regulation 2014 reg 86
Protection of the Environment Operations Act 1997 ss 96, 120, 143, 252, 257, Sch 1, Dictionary
Standard Instrument – Principal Local Environmental Plan Dictionary
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 cll 1.5, 1.17, 1.18, 5A.2, 5A.4, 5A.5, 5A.26, 5A.27, 5A.28
Uniform Civil Procedure Rules 2005 rr 42.1, 42.13
Water Management Act 2000 ss 305, 306, 307
Cases Cited: Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41
Billinudgel Property Pty Ltd v Minster for Planning [2016] NSWLEC 139
Blacktown City Council v Penetrators Pty Ltd (No 3) [2014] NSWLEC 4
Brooklyn Resort Pty Ltd v Hornsby Shire Council (1999) 105 LGERA 208; [1999] NSWLEC 214
Brown v Randwick City Council (2011) 183 LGERA 382; [2011] NSWLEC 172
Burrell v Mullin [2018] NSWLEC 165
Central Coast Council v 40 Gindurra Road Somersby Pty Ltd [2018] NSWLEC 79
Chief Executive, Office of Environment and Heritage v Kyluk Pty Ltd (No 4) (2014) 212 LGERA 1; [2014] NSWLEC 4
Community Association DP 270253 v Woollahra Municipal Council (2013) 211 LGERA 412; [2013] NSWLEC 184
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26
De Haas v Williams (2004) 132 LGERA 195; [2004] NSWLEC 15
Department of Environment and Climate Change v Olmwood Pty Ltd (2010) 173 LGERA 366; [2010] NSWLEC 15
Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (No 2) (2018) 234 LGERA 1; [2018] NSWLEC 153
Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2018] NSWLEC 99
Foley v Padley (1984) 154 CLR 349; [1984] HCA 50
Gandangara Local Aboriginal Land Council v New South Wales Aboriginal Land Council (No 2) [2013] NSWLEC 127
Goodwin v Phillips (1908) 7 CLR 1; [1908] HCA 55
Great Lakes Council v Lani (2007) 158 LGERA 1; [2007] NSWLEC 681
Hornsby Shire Council v Trives (No 3) [2015] NSWLEC 190
Hornsby Shire Council v Trives [2014] NSWLEC 171
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44
Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 184 LGERA 104; [2011] NSWCA 349
Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Lend Lease (Millers Point) Pty Limited v Council of the City of Sydney [2014] NSWLEC 64
Maund v Shoalhaven City Council [2019] NSWLEC 89
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Murdoch v Holroyd City Council [1996] NSWCA 376
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No 2) (1944) 69 CLR 407; [1944] HCA 42
R v Hickman; Ex parte Fox (1945) 70 CLR 598; [1945] HCA 53
R v PLV (2001) 51 NSWLR 736; [2001] NSWCCA 282
Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191
SAS Trustee Corporation v Woollard [2014] NSWCA 75
Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414
Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9
Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1998) 103 LGERA 338
Trives v Hornsby Shire Council (2015) 208 LGERA 361; [2015] NSWCA 158
Wilkie v Blacktown City Council (2002) 121 LGERA 444; [2002] NSWCA 284
Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 5) [2013] NSWLEC 68
Texts Cited: D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, 2014, Butterworths)
Macquarie Dictionary (online)
Oxford English Dictionary (online)
Category: Principal judgment
Parties: Central Coast Council (Applicant)
40 Gindurra Road Somersby Pty Ltd (First Respondent)
William A Dagger (Second Respondent)
Representation:
COUNSEL:
T To (Applicant)
R Clark (director, First Respondent)
Submitting appearance (Second Respondent)
SOLICITORS:
Central Coast Council (Applicant)
N/A (First Respondent)
Clyde & Co (Second Respondent)

File Number(s): 18/156286

TABLE OF CONTENTS

Judicial review of validity of complying development certificates and civil enforcement

Legislation

Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
Standard Instrument – Principal Local Environmental Plan

Council’s chronology

Evidence

2007 Fill Consent as modified
Masterplan CDC, Mod 2 CDC, Mod 3 CDC, Mod 4 CDC

Whether Council out of time to challenge validity of the CDCs

Gindurra’s submissions
Council’s submissions

Council not out of time to challenge validity of CDCs

Relationship between s 4.31 and s 4.59
Is the public notice of the Masterplan CDC compliant with cl 137 of the EPA Regulation as in force in December 2015?

Scope of judicial review of certifier’s decision

Filling on the Site

Evidence of fill levels
Evidence of fill placed in council reserves and inadequate/nil sediment and erosion control
Council’s submissions
Gindurra’s submissions

Filling on Site greater than Fill consent established

Validity of CDCs

Masterplan CDC

Evidence
Council’s submissions

Masterplan CDC invalid

Mod 3 and Mod 4 CDCs

Council’s submissions
Gindurra’s submissions

Mod 3 CDC and Mod 4 CDC invalid

Mod 4 CDC

Council’s submissions

Further reasons why Mod 4 CDC invalid

Mod 2 CDC does not authorise additional fill

Further concerning behaviour of the Certifier

Section 120 of the Protection of the Environment Operations Act 1997 (water pollution)

Council’s submissions and evidence
Gindurra’s submissions and evidence

Gindurra caused or permitted water pollution

Gindurra in breach of Environmental Planning and Assessment Act 1979 for unlawful filling

Whether Gindurra carried out development for the purpose of a waste or resource recovery facility without development consent

Council’s submissions
Gindurra’s submissions

Gindurra caused or allowed unauthorised resource recovery use

Exercise of discretion to grant relief

Evidence
Council’s submissions
Gindurra’s submissions

Consideration

Costs

Declarations

Judgment

Judicial review of validity of complying development certificates and civil enforcement

Central Coast Council (the Council) has commenced judicial review and civil enforcement proceedings in relation to an industrial site at lots 1-7 in SP 96758 known as 40 Gindurra Road, Somersby (the Site). The First Respondent 40 Gindurra Road Somersby Pty Ltd (Gindurra) owns the Site. A large amount of fill has been deposited in stages on the Site and into the adjoining council reserve. Consent for some land filling (DA 32465/2007) was granted to the Applicant by former Gosford City Council on 7 May 2007 (Fill Consent). The Fill Consent was modified on 26 April 2012. A complying development certificate (CDC) described as “Masterplan CDC” was issued by the Second Respondent Mr Dagger an accredited certifier (the Certifier) under the Environmental Planning and Assessment Act 1979 (EPA Act) in December 2015. Private certification of development including complying development was introduced into the EPA Act in July 1998 by the Environmental Planning and Assessment Amendment Act 1997.
The Masterplan CDC was modified on two occasions to permit fill according to the Council’s case. Declarations of invalidity of the Masterplan CDC and both modifications, “Mod 3 CDC” and “Mod 4 CDC”, are sought. Extensive consequential orders seek inter alia the cessation of all works on the Site other than those required to comply with the orders sought, preparation of a soil and water management plan and rehabilitation and vegetation management plan, and the removal of fill so that the level of fill on the Site accords with the Fill Consent. I note that Gindurra relied on an additional modification, “Mod 2 CDC”.
Gindurra was represented by its director Mr Richard Clark. The Certifier filed a submitting appearance and has played no role in the litigation.
Interlocutory orders were made in Central Coast Council v 40 Gindurra Road Somersby Pty Ltd [2018] NSWLEC 79 on 29 May 2018 requiring Gindurra to cease the importation and deposition of any material on the Site until further order.
The Site is zoned IN1 “General Industrial” under the Gosford Local Environmental Plan 2014 (GLEP). Gindurra Road adjoins the Site’s northern boundary (see map below). Two council reserves adjoin the Site to the south and west at 32 and 34 Gindurra Road respectively. Two unnamed tributaries of a creek known as Piles Creek pass through the reserves. A factory at 44 Gindurra Road is east of the Site and the Sydney – Newcastle motorway is south of the Site. The Site is approximately 5.5 hectares. After various subdivisions and proposals, the Site currently comprises lots 1-7 of SP 96758.

The Council’s amended summons dated 28 November 2018 seeks inter alia the following declaratory relief and a consequential order (more orders sought in prayer 5 are set out later in the judgment):

1A.   A declaration that Complying Development Certificate No. 14-0912 issued on 21 December 2015 is invalid and of no effect (Masterplan CDC).
1B.   A declaration that Complying Development Certificate No. 14-0912 - 3 issued on 20 March 2017 is invalid and of no effect (MOD3 CDC).
1C.   A declaration that Complying Development Certificate No. 14-0912 - 4 issued on 26 September 2017 is invalid and of no effect (MOD4 CDC).
1. A declaration that, in breach of s 4.2(1)(a) [formerly s.76A(1)(a)] of the Environmental Planning & Assessment Act 1979, the Respondent has carried out development, namely the use of the land described as Lots 1-7 in Strata Plan 96758 and known as 40 Gindurra Road, Somersby (the Land) for the purpose of a waste or resource management facility, being development on the Land which may not be carried out except with development consent, which consent has not been obtained.
2.   An order that the Respondent, by itself, its servants and agents, be restrained from carrying out development for the purpose of a waste or resource management facility on the Land until development consent has been obtained for such use.
3. A declaration that, in breach of s.4.2(1)(b) [formerly s.76A(1)(b)] of the Environmental Planning and Assessment Act 1979, the Respondent has carried out development, namely the filling of the Land, not in accordance with:
(a)   Development Consent 32465/2007 dated 22 November 2007, as modified (the Fill Consent); or
(b)   Complying Development Certificate 14-0912 dated 21 December 2015, as modified.

4. A declaration that, in breach of s 120 of the Protection of the Environment Operations Act 1997, the Respondent has polluted the waters in the creeks situated on the public reserves adjoining the Land, being land described as Lot 4 DP 771309 and known as 32 Gindurra Road, Somersby and Lot 3 DP 771309 known as 34 Gindurra Road Somersby.
…

As the CDCs challenged were approved in 2015 and 2017, earlier versions of the EPA Act are relevant.

Legislation

Environmental Planning and Assessment Act 1979

Relevant sections of the current EPA Act provide:

Part 4 Development assessment and consent
…
Division 4.5 Complying development
…
4.31   Validity of complying development certificate
Without limiting the powers of the Court under section 9.46 (1), the Court may by order under that section declare that a complying development certificate is invalid if:
(a)   proceedings for the order are brought within 3 months after the issue of the certificate, and
(b)   the certificate authorises the carrying out of development for which the Court determines that a complying development certificate is not authorised to be issued
…
Division 4.10 Miscellaneous Part 4 provisions
…
4.59   Validity of development consents and complying development certificates
If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or a certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given.
…
Part 9 Implementation and enforcement
…
Division 9.5 Civil enforcement proceedings
…
9.46   Orders of the Court
(1)   Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.
…

Relevant sections of the EPA Act as at 21 December 2015 (Masterplan CDC issued), 20 March 2017 (Mod 3 CDC issued) and 26 September 2017 (Mod 4 CDC issued) provided unless otherwise specified:

Part 1 Preliminary
…
4 Definitions
(1)   In this Act, except in so far as the context or subject-matter otherwise indicates or requires:
…
complying development is development for which provision is made as referred to in section 76A (5).
…
development means:
(a)   the use of land, and
(b)   the subdivision of land, and
(c)   the erection of a building, and
(d)   the carrying out of a work, and
(e)   the demolition of a building or work, and
(f)   any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument,
but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.
development application means an application for consent under Part 4 to carry out development but does not include an application for a complying development certificate.
…
Part 4 Development assessment
Division 1 Carrying out of development—the threefold classification
…
76A Development that needs consent
(1)   General
If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:
(a)   such a consent has been obtained and is in force, and
(b)   the development is carried out in accordance with the consent and the instrument.

(2)   For the purposes of subsection (1), development consent may be obtained:
(a)   by the making of a determination by a consent authority to grant development consent, or
(b)   in the case of complying development, by the issue of a complying development certificate.

…
(5)   Complying development
An environmental planning instrument may provide that development, or a class of development, that can be addressed by specified predetermined development standards is complying development.
…
Division 2 The procedures for development that needs consent
…
77A   Designated development
(1)   Designated development is development that is declared to be designated development by an environmental planning instrument or the regulations.
(2)   Designated development does not include State significant development despite any such declaration.
…
Division 2A Special procedures concerning staged development applications
…
83B   Staged development applications (as at 20 December 2015 and 21 March 2017)
(1)   For the purposes of this Act, a staged development application is a development application that sets out concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications. The application may set out detailed proposals for the first stage of development.
…
(3)   If consent is granted on the determination of a staged development application, the consent does not authorise the carrying out of development on any part of the site concerned unless:
(a)   consent is subsequently granted to carry out development on that part of the site following a further development application in respect of that part of the site, or
(b)   the staged development application also provided the requisite details of the development on that part of the site and consent is granted for that first stage of development without the need for further consent.

…
Division 3 Special procedure for complying development
84   Application of this Division
This Division applies to complying development.
84A   Carrying out of complying development
(1)   A person may carry out complying development on land if:
(a)   the person has been issued with a complying development certificate for the development, and
(b)   the development is carried out in accordance with:
(i)   the complying development certificate, and
(ii)   any provisions of an environmental planning instrument, development control plan or the regulations that applied to the carrying out of the complying development on that land at the time the complying development certificate was issued.

(2)   An application for a complying development certificate may be made:
(a)   by the owner of the land on which the development is proposed to be carried out, or
(b)   by any other person, with the consent of the owner of that land.

(3) The regulations may provide for the procedures for making an application, the fees payable in connection with an application and the procedures for dealing with an application.
…
(5) Nothing in this Division prevents a consent authority from considering and determining a development application for the carrying out of complying development.

…
85 What is a “complying development certificate”?
(1)   Terms of complying development certificate
A complying development certificate is a certificate:
(a)   that states that particular proposed development is complying development and (if carried out as specified in the certificate) will comply with all development standards applicable to the development and with other requirements prescribed by the regulations concerning the issue of a complying development certificate, and
(b)   in the case of development involving the erection of a building, that identifies the classification of the building in accordance with the Building Code of Australia.

(2)   A complying development certificate may indicate different classifications for different parts of the same building.
(3)   Erection of buildings
A complying development certificate that enables the erection of a building is sufficient to authorise the use of the building when erected for the purpose for which it was erected if that purpose is specified in the application for the complying development certificate, subject to section 109M.
(4)   Subdivision of land
A complying development certificate that enables the subdivision of land may authorise the carrying out of any physical activity in, on, under or over land in connection with the subdivision, including the construction of roads and stormwater drainage systems.
(5)   Other requirements for complying development certificates
The regulations:
(a)   may impose other requirements concerning the issue of complying development certificates, and
(b)   may provide for the form in which a complying development certificate is to be issued.

(5A)   A complying development certificate has no effect to the extent that it requires a compliance certificate to be obtained in respect of any development.
(6)   For the purposes of this section, development standard includes a provision of a development control plan that would be a development standard, within the meaning of section 4, if the provision were in an environmental planning instrument.
85A Process for obtaining complying development certificates
(1)   Application
An applicant may, in accordance with the regulations, apply to:
(a)   the council, or
(b)   an accredited certifier,
for a complying development certificate.

…
(3)   Evaluation
The council or accredited certifier must consider the application and determine:
(a)   whether or not the proposed development is complying development, and
(b)   whether or not the proposed development complies with the relevant development standards, and
(c)   if the proposed development is complying development because of the provisions of a local environmental plan, or a local environmental plan in relation to which the council has made a development control plan, that specifies standards and conditions for the complying development, whether or not the proposed development complies with those standards and conditions.

(4)   A council or accredited certifier must not refuse to issue a complying development certificate on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations.
(5)   A council, an employee of a council and an accredited certifier do not incur any liability as a consequence of acting in accordance with subsection (4).
(6)   Determination
The council or an accredited certifier may determine an application:
(a)   by issuing a complying development certificate, unconditionally or (to the extent required by the regulations, an environmental planning instrument or a development control plan) subject to conditions, or
(b)   by refusing to issue a complying development certificate.

(7)   The council or an accredited certifier must not refuse to issue a complying development certificate if the proposed development complies with the development standards applicable to it and complies with other requirements prescribed by the regulations relating to the issue of a complying development certificate.
…
86A Duration of complying development certificate
(1)   A complying development certificate becomes effective and operates from the date endorsed on the certificate.
…
87 Modification of complying development
(1)   A person who has made an application to carry out complying development and a person having the benefit of a complying development certificate may apply to modify the development the subject of the application or certificate.
(2)   This Division applies to an application to modify development in the same way as it applies to the original application.

Environmental Planning and Assessment Regulation 2000

Relevant clauses of the current Environmental Planning and Assessment Regulation 2000 (EPA Regulation) currently provide:

Part 1 Preliminary
…
6   When is public notice given?
Public notice in a local newspaper is given for the purposes of this Regulation when the notice is first published in a local newspaper, even if the notice is required to be published more than once or in more than one newspaper.
…
Part 6 Procedures relating to development applications
…
Division 13 Validity of development consents
124   What are the public notification procedures for the purposes of section 4.59 of the Act?
(1) The granting of a development consent is publicly notified for the purposes of section 4.59 of the Act if—
(a)   public notice in a local newspaper is given—
(i)   by the consent authority, or
(ii)   if the consent authority is not the council, by the consent authority or the council, and

(b)   the notice describes the land and the development the subject of the development consent, and
(c)   the notice contains a statement that the development consent is available for public inspection, free of charge, during ordinary office hours—
(i)   at the consent authority’s principal office, or
(ii)   if the consent authority is not the council, at the consent authority’s office or the council’s principal office.

…
Part 7 Procedures relating to complying development certificates
…
Division 3 Validity of complying development certificates
137 What are the public notification procedures for the purposes of section 4.59 of the Act?
(1) The determination of an application for a complying development certificate is publicly notified for the purposes of section 4.59 of the Act:
(a)   if public notice in a local newspaper is given by the council or an accredited certifier, and
(b)   if the notice describes the land and the development the subject of the complying development certificate, and
(c)   if the notice contains a statement that the determination of the application for a complying development certificate is available for public inspection, free of charge, during ordinary office hours at the council’s offices.

(2) If the public notification is given by an accredited certifier, the accredited certifier must send a copy of the page of the newspaper in which notice of the complying certificate was published to the council within 7 days after the notice is published.
[Note: cl 137 as previously in force referred to former s 101 instead of s 4.59]
…

Relevant clauses of the EPA Regulation as at 21 December 2015, 20 March 2017 and 26 September 2017 provided:

Part 1 Preliminary
…
4   What is designated development?
(1) Development described in Part 1 of Schedule 3 is declared to be designated development for the purposes of the Act unless it is declared not to be designated development by a provision of Part 2 or 3 of that Schedule.
…
Schedule 3 Designated development
Part 1 What is designated development?
...
13   Composting facilities or works
Composting facilities or works (being works involving the controlled aerobic or anaerobic biological conversion of organic material into stable cured humus-like products, including bioconversion, biodigestion and vermiculture):
(a)   that process more than 5,000 tonnes per year of organic materials, or
(b)   that are located:
(i)   in or within 100 metres of a natural waterbody, wetland, coastal dune field or environmentally sensitive area, or
…

…

16   Crushing, grinding or separating works
(1)   Crushing, grinding or separating works, being works that process materials (such as sand, gravel, rock or minerals) or materials for recycling or reuse (such as slag, road base, concrete, bricks, tiles, bituminous material, metal or timber) by crushing, grinding or separating into different sizes:
(a)   that have an intended processing capacity of more than 150 tonnes per day or 30,000 tonnes per year, or
(b)   that are located:
(i)   within 40 metres of a natural waterbody or wetland, or
…

(2) This clause does not apply to development specifically referred to elsewhere in this Schedule.
…

26   Paper pulp or pulp products industries
Paper pulp or pulp products industries:
(a)   that have an intended production capacity of more than:
(i)   30,000 tonnes per year, or
(ii)   70,000 tonnes per year if at least 90 per cent of the raw material is recycled material and if no bleaching or de-inking is undertaken, or

(b) that release effluent or sludge:
(i) in or within 100 metres of a natural waterbody or wetland, or

...

32   Waste management facilities or works
(1)   Waste management facilities or works that store, treat, purify or dispose of waste or sort, process, recycle, recover, use or reuse material from waste and:
(a)   that dispose (by landfilling, incinerating, storing, placing or other means) of solid or liquid waste:
(i)   that includes any substance classified in the Australian Dangerous Goods Code or medical, cytotoxic or quarantine waste, or
(ii)   that comprises more than 100,000 tonnes of “clean fill” (such as soil, sand, gravel, bricks or other excavated or hard material) in a manner that, in the opinion of the consent authority, is likely to cause significant impacts on drainage or flooding, or
…
(iv)   that comprises more than 200 tonnes per year of other waste material, or

(b)   that sort, consolidate or temporarily store waste at transfer stations or materials recycling facilities for transfer to another site for final disposal, permanent storage, reprocessing, recycling, use or reuse and:
(i)   that handle substances classified in the Australian Dangerous Goods Code or medical, cytotoxic or quarantine waste, or
(ii)   that have an intended handling capacity of more than 10,000 tonnes per year of waste containing food or livestock, agricultural or food processing industries waste or similar substances, or
(iii)   that have an intended handling capacity of more than 30,000 tonnes per year of waste such as glass, plastic, paper, wood, metal, rubber or building demolition material, or

(c)   that purify, recover, reprocess or process more than 5,000 tonnes per year of solid or liquid organic materials, or
(d)   that are located:
(i)   in or within 100 metres of a natural waterbody, wetland, coastal dune field or environmentally sensitive area, or

...

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Relevant clauses of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) as at 21 December 2015, 20 March 2017 and 26 September 2017 provided unless otherwise specified:

Part 1 General
Division 1 Preliminary
…
1.5   Interpretation – general
…
(2)   A word or expression used in this Policy has the same meaning as it has in the Standard Instrument unless it is otherwise defined in this Policy.
Division 2 Exempt and complying development
…
1.17 What development is complying development?
(1)   Development that is specified in a complying development code that meets the standards specified for that development and that complies with the requirements of this Division for complying development is complying development for the purposes of this Policy.
(2)   For the purposes of subclause (1), development that is specified includes any specified limitations as to the land on which that development may be carried out.
1.18  General requirements for complying development under this Policy
(1)   To be complying development for the purposes of this Policy, the development must:
…
(c1)   must not require an environment protection licence within the meaning of the Protection of theEnvironment Operations Act 1997, and
(c2)   must not be designated development, and
…
(d)   before the complying development certificate is issued, have an approval, if required by the Local Government Act 1993, for:
…
(ii)   an on-site stormwater drainage system, and
…

…
Part 5A Commercial and Industrial (New Buildings and Additions) Code
Division 1 Development that is complying development under this code
…
5A.2   Alterations or additions to an existing building or construction of new building
(1)   The following development is development specified for this code:
(a)   the construction of a building for the purposes of industry (other than heavy industry) or a warehouse or distribution centre,

…
Division 2 Development standards for this code relating to industrial buildings
Subdivision 1 Application
5A.4   Application of development standards
This Division sets out the development standards that apply to development specified for this code that comprises:
(a)   the construction of a building for the purpose of industry or of a warehouse or distribution centre, or
(b)   an addition to an existing building that is used for the purpose of industry, or
(c)   the external alteration of an existing building used for the purpose of industry.

Subdivision 2 General
5A.5 General standards
The standard specified for development to which this Division applies is that it must not contravene any condition of an existing development consent that applies to the land in relation to car parking, hours of operation, landscaping, noise, loading, traffic generation, vehicular movement and waste management.
…
Division 4 Development standards for both industrial and commercial development
…
5A.26   Garbage and waste storage
(1)   A garbage and waste storage area for recyclable and non-recyclable waste materials and receptacles for those materials must:
(a)   be provided as part of the development, and
(b)   be located entirely within the lot on which the development is being carried out and not on a road or road reserve, and
(c)   comply with the following appendices in the document entitled Better Practice Guidelines for Waste Management and Recycling in Commercial and Industrial Facilities (ISBN 978-1-74293-944-5), published by the NSW Environment Protection Authority in December 2012:
(i)   Appendices A and B, for the size and location of garbage and storage areas and the size of waste receptacles,
(ii)   Appendices C and D, for the design of openings of waste storage areas and loading bay turning circles for waste removal vehicles,
(iii)   Appendix E, for standard signs for waste storage areas,
(iv)   Appendix F for the design and operational capacity of waste storage areas.

…
5A.27   Earthworks (as at 20 March 2017)
(1)   Excavation works for the purposes of the development must:
(a)   be structurally supported in accordance with subclause (2), and
…
(d)   be carried out at least 40m from any waterbody (natural), and
…

(2)   Structural support for earthworks more than 1m above or below ground level (existing) must take the form of a retaining wall or other form of structural support that:
(a)   has been certified by a professional engineer, and
(b)   has adequate drainage lines connected to an existing stormwater drainage system for the site, and
(c)   does not redirect the flow of any water or cause sediment to be transported onto an adjoining property, and
(d)   is not higher than 3m, and
(e)   is separated from any other structural support on the site by at least 2m, measured horizontally.

(3)   Fill, for the purposes of the development must:
(a)   not raise the ground level (existing) more than 2m, and
(b)   be wholly contained by a structural support in accordance with subclause (2), and
(c)   be located at least 40m from any waterbody (natural).

5A.27   Earthworks (as at 26 September 2017)
(1)   Excavation
The standards specified for excavation work are that the work must:
(a)   be structurally sound, and

…
(2)   Fill
The standards specified for fill are that the fill must:
(a)   not raise the ground level (existing) more than 2m, and
(b)   be structurally sound, and
(c)   be located at least 40m from any waterbody (natural).

(3)   Structural supports
Earthworks that are more than 1m above or below ground level (existing) are structurally sound only if they have structural support that:
(a)   a professional engineer has certified as structurally sound, including in relation to (but not limited to) the ability to withstand the forces of lateral soil load, and
(b)   has adequate drainage lines connected to an existing stormwater drainage system for the site, and
(c)   does not redirect the flow of any water or cause sediment to be transported onto an adjoining property, and
(d)   is not higher than 3m, and
(e)   is separated from any other structural support on the site by at least 2m, measured horizontally, and
(f)   is not located over a registered easement.

5A.28   Drainage
(1)   All stormwater drainage collected as a result of the development must be conveyed by a gravity fed or charged system to:
(a)   a public drainage system, or
(b)   an inter-allotment drainage system, or
(c)   an on-site disposal system.

(2) All stormwater drainage systems within a lot, and the connection to a public or an inter-allotment drainage system, must:
(a) if an approval is required under section 68 of the Local Government Act 1993—be approved under that Act, or
(b) if an approval is not required under section 68 of the Local Government Act 1993—comply with any requirements for the disposal of stormwater drainage contained in a development control plan that is applicable to the land.

…

Standard Instrument – Principal Local Environmental Plan

Relevant dictionary definitions from the Standard Instrument – Principal Local Environmental Plan (Standard Instrument) provide:

Dictionary
general industrymeans a building or place (other than a heavy industry or light industry) that is used to carry out an industrial activity.
…
hazardous industry means a building or place used to carry out an industrial activity that would, when carried out and when all measures proposed to reduce or minimise its impact on the locality have been employed (including, for example, measures to isolate the activity from existing or likely future development on other land in the locality), pose a significant risk in the locality:
(a)   to human health, life or property, or
(b)   to the biophysical environment.
…
heavy industry means a building or place used to carry out an industrial activity that requires separation from other development because of the nature of the processes involved, or the materials used, stored or produced, and includes:
(a)   hazardous industry, or
(b)   offensive industry.
It may also involve the use of a hazardous storage establishment or offensive storage establishment.
...
industrial activity means the manufacturing, production, assembling, altering, formulating, repairing, renovating, ornamenting, finishing, cleaning, washing, dismantling, transforming, processing, recycling, adapting or servicing of, or the research and development of, any goods, substances, food, products or articles for commercial purposes, and includes any storage or transportation associated with any such activity.
…
industry means any of the following:
(a)   general industry,
(b)   heavy industry,
(c)   light industry,
but does not include:
(d)   rural industry, or
(e)   extractive industry, or
(f)   mining.
…
resource recovery facility means a building or place used for the recovery of resources from waste, including works or activities such as separating and sorting, processing or treating the waste, composting, temporary storage, transfer or sale of recovered resources, energy generation from gases and water treatment, but not including re-manufacture or disposal of the material by landfill or incineration.

Note.
Resource recovery facilities are a type of waste or resource management facility—see the definition of that term in this Dictionary.
...
waste disposal facility means a building or place used for the disposal of waste by landfill, incineration or other means, including such works or activities as recycling, resource recovery and other resource management activities, energy generation from gases, leachate management, odour control and the winning of extractive material to generate a void for disposal of waste or to cover waste after its disposal.
…
waste or resource management facility means any of the following:
(a)   a resource recovery facility,
(b)   a waste disposal facility,
(c)   a waste or resource transfer station,
(d)   a building or place that is a combination of any of the things referred to in paragraphs (a)–(c).
…

Council’s chronology

The Council provided the Court with a chronology which I understand is undisputed and which I have slightly modified to add in the Mod 2 CDC inter alia, as follows:

19 September 2005

Consent for 8 Lot Industrial Subdivision granted by former Gosford City Council (DA/25533/2004) (“Subdivision Consent”). Land subject of the consent is Lot 2 DP 771309 (which includes land presently known as 40 Gindurra Road Somersby NSW 2250).

19 September 2006

Modification of Subdivision Consent

7 May 2007

Consent for Land Filling granted by former Gosford City Council (DA/32465/2007) (“Land Fill Consent”). Land subject of Land Fill Consent is Lot 2 DP 771309.

22 November 2007

Modification of Land Fill Consent

15 December 2008

Modification of Subdivision Consent

4 March 2009

Modification of Subdivision Consent

27 July 2009

Registration of plan of subdivision creating Lots 1001 and 1002 DP 1138136.

11 March 2011

Transfer of Lot 1002 DP 1138136 to 40 Gindurra Road Somersby Pty Ltd

14 June 2011

Modification of Land Fill Consent – Lots 1002, and 1001 DP 1138136.

26 April 2012

Modification of Land Fill Consent – Lots 1002, and 1001 DP 1138136.

21 December 2015

Complying development certificate no. 14-0912 issued by William A Dagger (“Masterplan CDC”).

1 August 2016

Council inspection of the land.

18 November 2016

Modification of Masterplan CDC (CDC 14-0912-2) [Mod 2 CDC]

23 December 2016

Publication of notice of issue of Masterplan CDC and Mod 2 CDC in newspaper.

28 February 2017

Council inspection of the land.

15 March 2017

Council inspection of the land.

20 March 2017

Modification of Masterplan CDC (CDC 14-0912-3) (“Mod 3 CDC”).

23 March 2017

Notices (2) under s.143 of the Protection of the Environment Operations Act 1997 (“POEO Act”) given by the First Respondent, that the land could be lawfully used as a waste facility.

30 March 2017

Council issues notice of intention to give an order under former s.121B of the Environmental Planning and Assessment Act 1979 (EPA Act).

21 April 2017

Council issues order under the former s.121B of the EPA Act.

4 July 2017

Council issues certificates of compliance to Gindurra pursuant to s 307 of the Water Management Act 2000 (WM Act).

11 July 2017

Council issues certificates of compliance to Gindurra pursuant to s 307 of the WM Act.

26 September 2017

Modification of Masterplan CDC (CDC 14-0912-4) (“Mod 4 CDC”).

9 November 2017

Council receives complaint in relation to the land.

10 November 2017

Council inspection of the land. First observation of fill, and sediment into the creeks located in the public reserves adjoining the land.

5 December 2017

Council issues notice of intention to give direction under the POEO Act.

15 December 2017

Notice under s.143 of the POEO Act given by the First Respondent, that the land could be lawfully used as a waste facility.

20 December 2017

Strata Plan SP96758 registered. Seven lot strata subdivision of Lot 1002 DP 1138136.

31 January 2018

Notice under s.143 of the POEO Act given by Tom Cooper, that the land could be lawfully used as a waste facility.

2 February 2018

Council inspection of the land.

12 February 2018

Survey of the land undertaken for the Council.

15 February 2018

Timecon Pty Ltd, enters into contract with Capital K (Aust) Pty Ltd, for supply, transport and delivery of fill to the land.

21 February 2018

Council issues order to take prevention action under the POEO Act.

23 February 2018

Council issues order under s.121B of the EPA Act

6 March 2018

Orders issued on 21 February 2018, and 23 February 2018 revoked by the Council.

8 March 2018

Without prejudice discussions between the Council, and director of the First Respondent, including his solicitor.

23 March 2018

Council inspection of the land. First observation of pollution of waters in the creeks located in the public reserves located adjoining the land.

31 March 2018

Drone footage taken of the land.

3 April 2018

Council inspection of the land.

24 April 2018

Council inspection of the land.

26 April 2018

Notice under s.143 of the POEO Act given by Somersby Landscape Supplies Pty Ltd that the land could be lawfully used as a waste facility.

18 May 2018

Class 4 proceedings commenced

23 October 2018

Council inspection of the land.

28 November 2018

Summons for Class 4 proceedings amended.

4 February 2019

Council inspection of the land.

2 July 2019

Council inspection of the land.

Evidence

The Council tendered Ex A (evidence book); Ex B (court book); Ex C (enlarged plan of design fill contours and surveyed levels on the Site dated 16 May 2019) and Ex D (email from Mr Clark to the Certifier dated 13 January 2017 attaching a public notice of the Masterplan CDC and the Mod 2 CDC dated 23 December 2016).
The Council read the following affidavits (i) Ms Leah Hitchenson 16 May 2018, 15 November 2018, 26 November 2018, 6 February 2019, 8 May 2019; (ii) Mr Stephen Ryan 16 May 2018; (iii) Ms Tansy Collyer 16 May 2018; (iv) Mr Phillip Coon 3 May 2019; (v) Mr Robert Eyre 6 May 2019; (vi) Mr Johnson Zhang 8 May 2019; (vii) Mr Christopher Eggeling 16 May 2019; and (viii) Mr Jamie Loader 25 November 2018.
Gindurra read the affidavits of Mr Clark dated 29 July 2019, 1 August 2019, and 2 August 2019. These affidavits were largely in the form of submissions and have been incorporated into Gindurra’s submissions below.
Gindurra tendered Ex 1 (exhibits to Affidavit Mr Clark 29 July 2019); Ex 2 (correspondence between Mr Clark and Council dated November 2016 regarding Gindurra’s application for a certificate of compliance under s 305 of the Water Management Act 2000 (WM Act)) and Ex 3 (Mod 2 CDC issued by the Certifier on 17 November 2016).

2007 Fill Consent as modified

An eight-lot subdivision of the Site was approved in 2005. The Fill Consent was approved in 2007. Relevant conditions of the Fill Consent as modified on 26 April 2012 include:

1   Development being generally in accordance with plan(s) numbered C001 & C002 Rev 3 dated 14/6/11, ES01 and ES02 Rev B, dated 20 February 2017, prepared by RGH Consulting Group and B T Ryan & Associates, or where modified by any conditions of this consent.
A copy of the stamped approved plans must be kept on site for the duration of the site works and made available upon request to either the Principal Certifying Authority or an officer of the Council.
…
5   All erosion and sediment control systems proposed shall be implemented and functioning prior to any works occurring on the site.
…
11   A Geotechnical report prepared by a practising Geotechnical Engineer for all lots that are filled shall be submitted to Council in accordance with Australian Standard AS 3798-1996 (Guidelines on Earthworks for Commercial and Residential Developments, Standards Association of Australia). Any recommendations contained within the report shall be included as a restriction in the Section 88B Instrument giving Council the power to release vary or modify.
At the completion of construction, a practising Geotechnical Engineer shall certify that the filled areas have been constructed in accordance with the design, accepted practice and recommendations outlined in the Geotechnical report. This certification shall be submitted prior to the issue of a Subdivision Certificate.
…
13   No filling or debris shall be placed within any watercourse or drain.
14   Erosion and siltation control measures shall be implemented in respect to all civil works. The controls shall be constructed in accordance with Council’s Code of Practice for Erosion and Sedimentation Control and the Protection of the Environment Operations Act, 1997. All disturbed areas to be fully established within vegetation prior to the issue of the Subdivision Certificate.
The applicant shall be held responsible for any breaches of the Protection of the Environment Operations Act, 1997. Failure to implement or maintain appropriate erosion/sediment control measures is a breach of Section 120 of the Protection of the Environment Operations Act, 1997. Such a breach if liability to a $750 on-the-spot fine for an individual, or $1,500 for a Company. Applicant(s) and Builder(s) are advised that spot checks of Erosion and Sedimentation Control measures may occur and fines for breaches imposed.
...

The Fill Consent permitted filling on the Site to certain levels specified in the “bulk earthworks plan” C002 Rev 3 (Fill Consent bulk earthworks plan). This plan depicts a maximum Australian Height Datum (AHD) of 194 (lot 2001), 190 (lot 2002), 185 (lot 2003), 184 (lot 2004), 181.5 (lot 2005), 179.5 (lot 2006) and 181 (lot 2007). The Fill Consent bulk earthworks plan and the “sediment and erosion control plan” C001 Rev 3 (Fill Consent sediment and erosion control plan) depict a 10 metre-wide conservation buffer along the southern and western boundaries of the Site. Both plans are dated 14 June 2011 and were prepared by RGH Consulting Group.

Masterplan CDC, Mod 2 CDC, Mod 3 CDC, Mod 4 CDC

The Council issued a notice to produce dated 3 May 2019 to the Certifier in the following terms:

1.   All documents (including emails from and to Richard Clark), relating to the application for, processing of and determination of complying development certificate numbered 14-0912, dated 21 December 2015 (“Masterplan CDC”) including, but not limited to:
a.   the application including any accompanying documents for the Masterplan CDC;
b.   any email or other written correspondence with any person relating to the Masterplan CDC;
c.   the Masterplan CDC and all endorsed or noted plans, specifications and other documents relating to the Masterplan CDC.

2.   All documents (including emails from and to Richard Clark), relating to complying development certificate numbered 14-0912-3, dated 20 March 2017 (“MOD3 CDC”) including, but not limited to:
a.   the application including any accompanying documents for the MOD3 CDC;
b.   any email or other written correspondence with any person relating to the MOD3 CDC;
c.   the MOD3 CDC and all endorsed or noted plans, specifications and other documents relating to the MOD3 CDC.

3.   All documents (including emails from and to Richard Clark), relating to complying development certificate numbered 14-0912-4, dated 26 September 2017 (“MOD4 CDC”) including, but not limited to:
a.   the application including any accompanying documents for the MOD4 CDC;
b.   any email or other written correspondence with any person relating to the MOD4 CDC;
c.   the MOD4 CDC and all endorsed or noted plans, specifications and other documents relating to the MOD4 CDC.

The following documents were produced by the Certifier in response to the notice to produce:

Clean-up notices issued by the NSW Environment Protection Authority to Timecon Pty Ltd (Timecon) (of which Mr Clark is the sole director) (20 November 2013, 27 October 2014 and 7 November 2014).

Emails from Mr Clark to the Certifier in relation to the Masterplan CDC and Sch 1 to the Protection of the Environment Operations Act 1997 (POEO Act). In an email dated 14 August 2014 Mr Clark extracted provisions of the Codes SEPP and highlighted those that would apply to the Site. These include cll 5A.2 (alterations or additions to an existing building or construction of new building), 5A.5 (general standards), 5A.27 (earthworks) and 5A.28 (drainage). He annotated the provisions with comments as to how they would be complied with.

In an email dated 22 December 2015 the Certifier requested that Mr Clark update him on the “function of the Resource Building and the Resource stockpiles and the SEPP limit on those stock piles” if Mr Clark was planning a crushing plant of some kind.

In an email dated 23 December 2015 Mr Clark stated that the aim of the Masterplan CDC application was to “recover reuse and supply clean energy from different general soil waste material streams” which could include:

recycling paper;
recycling of building and demolition general solid waste;
composting; and
non-thermal and thermal waste.

He extracted provisions of the POEO Act Sch 1 (scheduled activities) cll 12 (composting), 16 (crushing, grinding or separating), 30 (paper or pulp production), 41 (waste processing (non-thermal treatment)), 49 (definitions of waste classification) and the Protection of the Environment Operations (Waste) Regulation 2014 reg 86 (EPA is to set targets for recovery of materials and review of packaging design).

Documents relating to the interim occupation certificate issued by the Certifier in November 2016 including a bundle of photographs depicting a fire hydrant near the resource recovery shed on the Site, a portable fire extinguisher mounted on the shed and bagged “sample material in resource recovery shed”, and an email from Mr Clark to the Certifier dated 18 November 2016:

The bales stored inside the resource recovery shed are for coal works in an overseas coal power plant … at the moment we are sitting at around 500 tonnes of coal product inside the shed.

Emails from the Certifier to Mr Clark relating to the progression of the Mod 3 CDC dated 10, 11 and 14 January 2017. An email dated 14 January 2017 identifies a number of issues with the then proposed Mod 3 CDC: the fill permitted by the Masterplan CDC at 185 AHD was inconsistent with that permitted by the Fill Consent and the conservation buffer is not depicted on the Masterplan CDC.

Email correspondence dated 21 and 23 February and 9 and 20 March 2017 between Mr Clark and the Certifier in relation to the Mod 3 CDC application attaching bulk fill plans for the Site and individual lots.

Email correspondence dated 14 March and 19 April 2017 between Mr Clark and the Certifier in relation to the Mod 4 CDC application attaching bulk fill plans for the Site and individual lots.

Additional material was exhibited to the affidavit of Mr Ryan senior development control officer for the Council sworn 16 May 2018:

In an email to the Certifier dated 16 November 2015 Mr Clark described how development was intended to occur under the Masterplan CDC and enclosed plans and engineers’ approval for the “industrial shed first phase” of the Masterplan CDC. He stated that he would change the word from “stage” to “phase” on the attached plans. Phase 1 would involve the construction of a temporary industrial shed for recycling yard use until concrete buildings were built;

the Masterplan CDC, approved plans and supporting documents relied on by the Certifier that were provided to the Council;

the Mod 3 CDC, approved plans and supporting documents relied on by the Certifier that were provided to the Council; and

the Mod 4 CDC, approved plans and supporting documents relied on by the Certifier that were provided to the Council.

The Masterplan CDC dated 21 December 2015 states:

SCOPE OF WORKS COVERED BY THIS COMPLYING DEVELOPMENT CERTIFICATE

MASTER PLAN – FOR 89 FACTORY WAREHOUSE UNITS; PLUS PHASE 1 DEVELOPMENT – INDUSTRIAL BUILDING FOR RESOURCE RECOVERY USE

…

…

Building Classifications:

MASTERPLAN:

FOR 89 INDUSTRIAL BUILDINGS (TO BE CONSTRUCTED IN 8 SEPARATE PHASES) BEING:

CLASS 7b – Storage;

CLASS 8 Warehouses (Wholesale & Retail – Primary Uses)

CLASS 10a Common Sanitary & Shower Facilities – Ancillary to Class 7b & Class 8 uses;

PHASE 1

CLASS 8 – Warehouse + Resource Recovery Building + (Paper or Pulp production – Clause 30 Defined Scheduled Activity limited to Table Column 2 quantities);

CLASS 10b – Resource Material Stock Pile Locations (properly covered + contained and protected);

CLASS 10a – Associated staff amenities.

According to the Building Code of Australia, class 7b is a building which is for storage or display of goods or produce for sale by wholesale; class 8 is a laboratory or a building in which a handicraft or process for the production, assembling, altering, repairing, packing, finishing or cleaning of goods or produce is carried on for trade, sale or gain; class 10a is a private garage, carport, shed or the like; and class 10b is a structure being a fence, mast, antenna, retaining or free-standing wall, swimming pool or the like.
The following plans (as described in Sch 1 to the Masterplan CDC) were approved in the Masterplan CDC: “master plan”; “non strata – master plan – proposed allotment boundaries”; “master traffic plan”; “sediment and erosion control plan”; “fire wall breaks + essential fire services & related specifications”; “amenities plans”; “landscaping plan”; “survey plan” and “phase 1 development plan”. The master plan depicts 194 AHD on lot 101, 190 AHD on lot 102, 187 AHD on lot 103, and 185 AHD on lots 4-7. These are the same AHD as depicted on the Mod 2 CDC plan (see [28] below).
The Mod 2 CDC is not under challenge in the Council’s case. It is relied on by Gindurra. The Mod 2 CDC dated 17 November 2016 states:

SCOPE OF WORKS COVERED BY THIS CY [SIC] CERTIFICATE

MODIFIED MASTER PLAN – FOR 89 UNIT WAREHOUSE INDUSTRIAL BUILDING;

MODIFIED MASTER PLAN – FOR 89 UNIT WAREHOUSE INDUSTRIAL BUILDING;

…

…

Building Classifications:

[as in the Masterplan CDC set out in [24] above]

Schedule 1 to the Mod 2 CDC identifies plans some of which are the same as those approved in the Masterplan CDC. The Court was provided with “master plan & fire wall breaks (modified to exclude external car parking + to exclude internal car parks 3 to 6 + 36 & 37 + 56 to 58)” (an updated version of the “fire wall breaks + essential fire services & related specifications” plan approved in the Masterplan CDC) and “phase 1 development plan” (an updated version of the equivalent plan approved in the Masterplan CDC). The “master plan & fire wall breaks plan” depicts 194 AHD on lot 101, 190 AHD on lot 102, 187 AHD on lot 103, and 185 AHD on lots 4-7. Not all the plans referred to in Sch 1 to the Mod 2 CDC were provided to the Court.
The Mod 3 CDC dated 20 March 2017 states:

SCOPE OF WORKS COVERED BY THIS CY [SIC] CERTIFICATE

MODIFIED MASTER PLAN – 89 UNIT WAREHOUSE INDUSTRIAL BUILDING DEVELOPMENT (ADJUSTS WAREHOUSE GENERIC CONSTRUCTION & ENGINEERING + RAISES PERMISSIBLE ENVELOPE HEIGHTS TO 9800mm AND UNDERTAKES MINOR TO GRADE ADJUSTMENTS OF PREVIOUS LAND FILL FOR THE SITE – ALL WITHIN CDC LIMITS)

…

…

Building Classifications:

[as in the Masterplan CDC]

The Mod 3 CDC includes a “bulk fill” plan for the Site and cross-sections of individual lots dated 15 February 2017 which depict +1.95 metres of filling on the Site. Not all plans referred to in Sch 1 to the Mod 3 CDC were provided to the Court.
The Mod 4 CDC dated 26 September 2017 states:

SCOPE OF WORKS COVERED BY THIS COMPLYING DEVELOPMENT CERTIFICATE

CONSTRUCTION OF FUTURE STRATA PLAN LOT 102 – UNITS 11 TO 20 + RELATED ANCILLARY UTILITY & ESSENTIAL SERVICES + LANDSCAPE PAVEMENT (INCLUDES Adjustments to continuing Resource Recovery Facility Stockpile Area to facilitate ENM Grading + Testing & Materials Recycling & Rotation all to NSW Government Contract Standards)

…

…

Building Classifications: Units 11 to 20

CLASS 7b – Storage;

CLASS 8 Warehouses (Wholesale & Retail – Primary Uses)

CLASS 10a Common Sanitary & Shower Facilities – Ancillary to Class 7b & Class 8 uses;

Includes Existing Resource Recovery Building – Being:

CLASS 8 – Phase 1 Warehouse + Resource Recovery Building + (Paper or Pulp production) (Concrete Crush Plants & Recycling (Section 30 Defines Scheduled Activity Limited to Table Column 2 quantities): Plus:

CLASS 10b - Adjusted Resource Recovery Facility Stockpile Areas (properly limited + contained & protected):

Class 10a – Associated staff amenities.

The Mod 4 CDC includes a bulk fill plan for the Site and cross-sections of individual lots dated 15 February 2017 which depict +1.95 metres of filling on the Site. Sewer encasement, hydraulics services and stormwater management plans were also provided. Not all plans referred to in Sch 1 to the Mod 4 CDC were provided to the Court.
In summary, the Masterplan CDC issued did not include bulk fill plans. The Mod 3 CDC and Mod 4 CDC each permitted close to two metres (1.95 metres) of fill across much of the Site. The fill limit of 1.95 metres is likely to be intended to comply with cl 5A.27(3)(a) (as at 20 March 2017) and cl 5A.27(2)(a) (as at 26 September 2017) of the Codes SEPP, not raise ground level more than two metres.

Whether Council out of time to challenge validity of the CDCs

Under s 4.59 (formerly s 101) of the EPA Act, judicial review proceedings must be commenced within three months of a public notice published in accordance with the regulations. Under s 4.31, a CDC can be challenged within three months on a wide basis. In an email to the Certifier dated 13 January 2017, Mr Clark stated that he had published public notices of the determination of the applications for the Masterplan CDC and the Mod 2 CDC in the Newcastle Herald dated 23 December 2016. The Council was notified by him that this occurred on 3 January 2017. The copy of the public notices state:

Public Notice in Accordance with Regulations
The development consent for CDC 140912 Master Plan for 89 Warehouse buildings and Phase 1 development Industrial Building for Resource Recovery Site at 40 Gindurra Rd Somersby dated 21 December 2015, determination of the application and any accompanying information is available for public inspection, free of charge, during ordinary office hours 9:00am until 5:00pm Monday to Friday at the Central Coast Council Gosford office 49 Mann Street, Gosford 2250.
…
Public Notice in Accordance with Regulations
The development consent for CDC 140912-2 Modified Master Plan for 89 Warehouse buildings and Phase 1 development Industrial Building for Resource Recovery Site at 40 Gindurra Rd Somersby dated 17 November 2016 and determination of the application and any accompanying information is available for public inspection, free of charge, during ordinary office hours 9:00am until 5:00pm Monday to Friday at the Central Coast Council Gosford office 49 Mann Street, Gosford 2250.

The operation of ss 4.31 and 4.59 of the EPA Act will be considered. Section 4.59 (formerly s 101) has been in the EPA Act for some time. Section 4.31 commenced on 1 March 2018. Public notice requirements for CDCs are specified in cl 137 of the EPA Regulation.
I note that at the completion of the hearing on 28 August 2019 I made orders allowing the Council to make further submissions on s 4.31 by 30 August 2019. Mr Clark had leave to respond to those submissions by 13 September 2019. Mr Clark filed further lengthy submissions on 10 September 2019 addressing s 4.31 but also other issues already considered at the hearing. As Mr Clark did not have leave to file the additional material I did not have regard to it, except for one issue which is potentially relevant to the orders I make. This is discussed at [241] below.

Gindurra’s submissions

The precondition to the operation of s 4.59 of the EPA Act is that public notice of a consent or CDC is given in accordance with the regulations. Clauses 6, 124 and 137 of the EPA Regulation concern the public notification of development consents and CDCs. These provisions focus on public notice being given, not who it was given by. Therefore public notice will have been given for the purposes of s 4.59 notwithstanding that the Council or an accredited certifier did not physically transmit the notice. This construction of s 4.59 can be gauged from the use of the word “given” in the text of s 4.59 and the above clauses of the EPA Regulation. Public notice was given in accordance with the EPA Regulation.
Section 4.59 operates in conjunction with s 4.31. The application of s 4.31(b) is very broad and is not confined to development standards. Burrell v Mullin [2018] NSWLEC 165 supports this construction of s 4.31. The application of s 4.31 prevents these proceedings challenging the Masterplan, Mod 3 and Mod 4 CDCs.

Council’s submissions

The Council accepts it cannot rely on s 4.31 to commence these proceedings given that it was commenced three months after the issue of the Masterplan CDC. Section 4.31 of the EPA Act was necessary due to the Court of Appeal’s decision in Trives v Hornsby Shire Council (2015) 208 LGERA 361; [2015] NSWCA 158 (Trives (CA)). The Court of Appeal held that whether the development was complying development was not a jurisdictional fact reviewable directly by the Court. The LEC could judicially review the state of satisfaction of the Certifier.
This context led to the enactment of s 4.31 of the EPA Act. The provision is expressed in terms of amplifying the power of the Court to declare the invalidity of a CDC. Section 4.31 enables the Court to directly review the matters about which a certifier must be satisfied as jurisdictional facts, as opposed to indirectly review a certifier’s state of satisfaction per Trives (CA). This is made clear by the chapeau of s 4.31 “Without limiting the powers of the Court … the Court may...” and specifically in s 4.31(b), “for which the Court determines that a … certificate is not authorised to be issued”.
Section 4.31 does not restrict or limit judicial review of the state of satisfaction of a certifier required by s 4.28(3) (formerly s 85A(3)), for example, that the proposed development is complying development and complies with required development standards. Nor does s 4.31 seek to otherwise prescribe a restriction generally on the judicial review of CDCs.
The difference between the language employed in ss 4.31 and 4.59 is stark. Section 4.59, where engaged, explicitly prescribes a restriction on the jurisdiction of the Court to determine the validity of inter alia a CDC, hence the words “cannot be questioned”. By comparison, s 4.31 is not expressed as a restriction at all, but an additional power given to the Court. Given that s 4.59 continues to apply to CDCs it would have been entirely otiose for s 4.31 to be enacted if it were to be construed as creating any discrete restriction on judicial review. Section 4.31 is not a privative clause.
The judicial review challenges in these proceedings have been brought also on the (alternative) basis that it was not open to the Certifier to form the state of satisfaction that the development was complying development and/or that it met required development standards: see grounds 2, 7 and 10 of the amended summons ([100], [138] and [152] below respectively). This avenue of judicial review remains available.
In this regard, the Council adopted what Biscoe J said in Hornsby Shire Council v Trives (No 3) [2015] NSWLEC 190 at [16]-[23] in relation to the legal tests relevant to review of a certifier’s state of satisfaction. The Council submitted that it was not open and it was legally unreasonable for the Certifier to form the view that the proposed development was complying development or met the required development standards. Such errors were jurisdictional errors of the second and third kind described in R v Hickman; Ex parte Fox (1945) 70 CLR 598; [1945] HCA 53 (the decision did not relate to the subject matter of the legislation and was not reasonably capable of reference to the power given to the decision-maker) and not protected by s 4.59 either before or after Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 (Kirk) because the publication of notice of the determination of the application for the Masterplan CDC did not engage s 4.59 of the EPA Act (or s 101 as it then was). Such a notice could only be given by a consent authority or a certifier: s 4.59 of the EPA Act and cl 137(1)(a) of the EPA Regulation. Neither the Council or the Certifier gave the notice, Mr Clark did.

Council not out of time to challenge validity of CDCs

Relationship between s 4.31 and s 4.59

The additional power conferred on the Court to directly review CDCs under s 4.31 is available in proceedings commenced after 1 March 2018 but only if those proceedings are commenced within three months of the date of issue of the certificate. These proceedings were commenced on 18 May 2018. The Council accepts it cannot rely on s 4.31 of the EPA Act given that a substantially greater period than three months has elapsed since the Masterplan, Mod 3 and Mod 4 CDCs were issued in 2015 and 2017 respectively. One statutory construction issue that arises is whether s 4.31 excludes judicial review proceedings of CDCs. Gindurra submitted that the effect of s 4.31 was that any proceedings to challenge a CDC must be commenced within three months of the date of issue.
Section 4.59 applies to both development consents and CDCs. Section 4.31 refers only to CDCs. For the reasons given by the Council set out at [40]-[42] above I agree that s 4.31 is intended to expand the power of the Court to review CDCs for a three month period from the date of issue, not limit the power of judicial review of CDCs generally.
I do not accept Gindurra’s argument to the contrary that s 4.31 excludes judicial review. As the Council submitted Gindurra’s reliance on Burrell v Mullin is misplaced. That case says nothing about the operation of s 4.31 of the EPA Act. Section 4.31 is only mentioned briefly in that interlocutory decision.
The next question to arise is whether s 4.59 applies so that the proceedings are statute-barred. Proceedings must be commenced within three months of a public notice being published as the EPA Regulation requires. The next issue to determine is whether a public notice which complies with the EPA Regulation has been published.

Is the public notice of the Masterplan CDC compliant with cl 137 of the EPA Regulation as in force in December 2015?

The requirements for public notice of a CDC to be given are set out in cl 137 of the EPA Regulation. The mandatory content of the notice is set out in subcll (1)(b) and (c). Gindurra’s director, not the Council or the Certifier as cl 137(1)(a) specifies, caused a public notice to be published in a local newspaper in December 2016C. The content of the notice set out in full at [34] above complies with subcll (1)(b) and (c). Whether the public notice of the Masterplan CDC complied with cl 137(1)(a) of the EPA Regulation as in force in 2015 arises in these circumstances. Statutory construction of that clause is necessary. No authorities have considered the question of the identity of who must publish a notice in relation to either a CDC or DA. Cases that have considered cl 124 (the equivalent provision for DAs) have been focussed on whether a notice complied with the equivalents of cl 137(1)(b) or (c). These subclauses have been strictly applied in cases such as De Haas v Williams (2004) 132 LGERA 195; [2004] NSWLEC 15 and Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 184 LGERA 104; [2011] NSWCA 349.
In the absence of cases considering the construction of cl 137, cases on cl 124 may be relevant. In De Haas v Williams it was held that a public notice that misdescribed the property the subject of the purported development consent failed to draw to the public’s attention the fact of the purported development consent which was granted to the property. The notice failed in its legislative purpose. In Hoxton Park Residents Action Group Inc v Liverpool City Council, Basten JA (Giles and Macfarlan JJA agreeing) held at [25]-[29] that cl 124(1)(c) of the EPA Regulation requires that the notice contain a statement that the consent is available for public inspection, free of charge, during ordinary office hours at a specified office. A notice which does not include a statement referring to availability “during ordinary office hours” does not comply with the clause. His Honour stated at [24]:

Factors which may indicate that a particular requirement of the Regulation is not mandatory, in the sense of being one absent which proper notice has not been given, may include the degree of precision with which the requirement is identified, by contrast with a requirement that involves elements of judgment or discretion. The matters required in the statement (ignoring infelicity of expression in the Regulation) are all matters which can readily be objectively identified and which do not require judgment on the part of the person drafting the statement.

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] cited in Gandangara Local Aboriginal Land Council v New South Wales Aboriginal Land Council (No 2) [2013] NSWLEC 127 at [60].
Where words are plain and unambiguous they should be given their ordinary and grammatical meaning: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 at 305 cited in Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191 at [42]. Many authorities have emphasised the importance of the words of the statute: see, for eg, SAS Trustee Corporation v Woollard [2014] NSWCA 75 at [58] (Bathurst CJ, Tobias JA agreeing) citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41.
An extension of that emphasis is that additional words should not lightly be implied in legislation: Lend Lease (Millers Point) Pty Limited v Council of the City of Sydney [2014] NSWLEC 64 at [54]. As identified in D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, 2014, Butterworths) at [2.32]-[2.36] (Pearce and Geddes) the highest appellate courts in Australia and England have stated this can occur but in limited circumstances.
Indeed, Spigelman CJ stated in R v PLV (2001) 51 NSWLR 736; [2001] NSWCCA 282 at [88] (Simpson J and Smart AJ agreeing at [98] and [99] respectively), approved in Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [35] (French CJ, Crennan and Bell JJ):

The authorities which have expressed the process of construction in terms of “introducing” words to an Act or “adding” words have all, so far as I have been able to determine, been concerned to confine the sphere of operation of a statute more narrowly than the full scope of the dictionary definition of the words would suggest. I am unaware of any authority in which a court has ‘introduced’ words to or ‘deleted’ words from an Act, with the effect of expanding the sphere of operation that could be given to the words actually used. This was the actual issue in Young. There are many cases in which words have been read down. I know of no case in which words have been read up.

Gindurra emphasised the word “given” to submit it does not matter by who the notice is transmitted. Given that subcl (1)(a) requires expressly that notice be given by a council or certifier, Gindurra’s approach requires the words “or a person on behalf of” a council or certifier to be read into subcl (1)(a). This would expand the scope of the provision.
It is important to consider the EPA Regulation as a whole. The phrase “given by” is used in various provisions in the EPA Regulation. Clause 49 regulates who can make development applications (DAs). Clause 49(3) states “a development application made by a lessee of Crown land may only be made with the consent in writing given by or on behalf of the Crown” (emphasis added). The inclusion of “on behalf of the Crown” in cl 49(3) suggests that “given by” in cl 137 should not be read as “given by or on behalf of” because otherwise this would have been reflected in the text of the provision (as done in cl 49(1)).
Other provisions in the EPA Regulation where a council or accredited certifier is required to do something include that a certifying authority must not issue a CDC for development unless a council or an accredited certifier has carried out an inspection of the site of the development (cl 129B(1)); and evidence of the issue of a CDC must be endorsed by the council or an accredited certifier (cl 130(3)). Since the council or accredited certifier is the relevant consent authority, it would not be appropriate for a person or entity acting on behalf of the council or certifier to perform either of these functions. These provisions do not support inferring additional words in cl 137(1)(a).
In contrast, the phrase “cause notice of” is used throughout the EPA Regulation in different circumstances. For example under cl 118(3) the relevant consent authority must “cause notice of” an application to modify a development consent to be given to each person who made a submission in relation to the original DA. Further under cl 130(4), for the purposes of s 4.28(11)(b) of the EPA Act (the requirement that an accredited certifier must notify the council of the determination of an application for the issue of a CDC), an accredited certifier must “cause notice of” their determination to be given. These provisions do not support implying additional words in cl 137(1)(a) as it suggests that in the context of issuing a public notice the consent authority itself must issue the public notice (as opposed to an entity or person on its behalf which could be permitted on a textual construction of “cause notice of”).
I interpret “given by” to have its ordinary meaning such that a public notice must be given by the council or certifier. I conclude that the notice placed in the newspaper by Mr Clark does not satisfy cl 137(1)(a) and is not a valid notice for the purposes of s 4.59. Accordingly these proceedings are not statute-barred as commenced within time.
Even if it was a valid notice for the purposes of s 4.59, as Preston CJ explained in Brown v Randwick City Council (2011) 183 LGERA 382; [2011] NSWLEC 172 at [37]-[40] (followed by me in Community Association DP 270253 v Woollahra Municipal Council (2013) 211 LGERA 412; [2013] NSWLEC 184 at [74]), after the High Court’s decision in Kirk a provision such as s 101 (now s 4.59) does not preclude judicial review of the full range of jurisdictional error. The judicial review challenges identified in grounds 2 (Masterplan CDC), 7 (Mod 3 CDC) and 10 (Mod 4 CDC) of the amended summons are potentially available in these proceedings subject to consideration of the scope of judicial review of a certifier’s decision, as I do next.

Scope of judicial review of certifier’s decision

At the time that the Masterplan, Mod 3 and Mod 4 CDCs were issued, s 85A of the EPA Act outlined the process for obtaining CDCs. When considering a CDC application the council or accredited certifier must determine under s 85A(3) whether the proposed development is complying development and whether it complies with the relevant development standards inter alia.
In Hornsby Shire Council v Trives [2014] NSWLEC 171 the separate question before Craig J was whether three CDCs issued for the erection of structures certified as complying development and characterised as “detached studios” on three residential properties were valid. The CDCs were purportedly issued pursuant to s 85A of the EPA Act and the Codes SEPP which provides that “ancillary development” (defined to include a “detached studio”) is complying development if certain requirements of the Codes SEPP are satisfied. His Honour determined that the characterisation of the proposed structures was an issue of objective jurisdictional fact to be determined by the Court on the evidence before it and ultimately held that the CDCs were valid. The certifier appealed on the sole ground that the determination of whether development was complying was not a jurisdictional fact. The Court of Appeal in Trives (CA) upheld the appeal. It found that the Court in judicial review proceedings could not decide whether the proposed development was complying development for the purposes of s 85A(3) as an objective jurisdictional fact. The Court could decide whether the certifier could reasonably have held the opinion that the proposed studios were complying development on the correct construction of the Codes SEPP and the relevant LEP specifying what was complying development: Trives (CA) at [14], [26]-[31], [34].

In light of the evidence summarised above at [182], I find that Gindurra did cause or permit water pollution of the unnamed creeks adjoining the council reserve on the southern boundary and in a small area on the western boundary between November 2017 and July 2019 in that it caused or permitted the placement of fill and sediment and other material in such a manner that it did or was likely to wash into the unnamed creeks on the adjoining council reserves.

Gindurra in breach of Environmental Planning and Assessment Act 1979 for unlawful filling

As flagged at [98] above, the second issue relevant to the Council’s case on unlawful filling is whether Gindurra was legally responsible for it. As referred to at [87] above, the Council submitted that Gindurra, through its director Mr Clark, caused excess fill to be deposited. As referred to at [91] above, Gindurra appeared to submit that it was not responsible for any breach of the EPA Act because it and/or no person on its behalf did the work which gave rise to the breach of the Fill Consent. The same evidence set out exhaustively above in relation to whether or not Gindurra was an occupier for the purposes of the POEO Act, resulting in a conclusion that it was, also applies to support a finding on the balance of probabilities that Gindurra through its director Mr Clark, and as the sole director of other related companies Timecon and Somersby Landscape Supplies Pty Ltd, caused a breach of the EPA Act in causing or allowing unauthorised fill meaning at greater levels than permitted by the Fill Consent to be placed on the Site without the necessary development consent or valid CDC. Gindurra was not a passive landowner in the manner considered in Wilkie. It caused work to be carried out which was not authorised by the EPA Act and consequently caused fill well in excess of the Fill Consent to be deposited on the Site, including in the conservation buffer, and in adjoining council reserves.

Whether Gindurra carried out development for the purpose of a waste or resource recovery facility without development consent

The approval of phase 1 in the Masterplan CDC describes the construction of a shed to be used for resource recovery purposes. The Council relied on the following evidence to establish that a waste resource recovery use was carried out on the Site. Aerial images of the Site submitted by the Council show that there was no shed on the Site as at 5 December 2015 and there was a shed as at 15 October 2016. A drone photograph taken by a consultant engaged by the owner of 44 Gindurra Road (neighbour) and provided to the Council depicts the shed as at 31 March 2018.
A photograph was produced by the Certifier labelled “sample material in resource recovery shed” on the Site referred to in [22] above. In an email dated 18 November 2016 to the Certifier Mr Clark stated that bales were stored in the resource recovery shed.
An email from Mr Clark to Laison Earthmoving Pty Ltd (Laison Earthmoving) dated 14 November 2017 referred to by Gindurra below at [206] outlines the terms of a proposed processing agreement and states “[g]lass needs to be moved offsite before 15th of December to make way for stockpiles”. An email dated 17 November 2017 from Mr Clark to Laison Earthmoving states “[y]ou advised LPH [Laison Earthmoving & Plant Hire (NSW) Pty Ltd (LPH)] wish [sic] to remove glass …”.
Council officers Mr Ryan, Ms Collyer and Ms Hitchenson observed glass stockpiles on the Site on 10 November 2017, 23 March 2018 and 3 April 2018 (see above at [71], [73] and [75] respectively).
In an email to Laison Earthmoving dated 31 January 2018 Mr Clark stated “Tom to action live screening by Gerald as North Connex northern portal material comes, if 500 tonne [sic] comes in then a minimum of 500 tonne [sic] is screened, this way there is no surplus material”.

Council’s submissions

Resource recovery facility is defined in the Standard Instrument. It is not in issue that a resource recovery facility or a waste or resource management facility is permissible with consent on the Site, being zoned IN1 under the GLEP. The evidence of the various inspections, photographs and surveys referred to above and the description in the Masterplan CDC show a resource recovery use of the Site which did not have development consent. The so-called “industrial” building (a temporary building) in phase 1 serves only this purpose. Such use was proposed also on other lots as depicted in the “phase 1 development plan” approved under the Masterplan CDC.
The evidence of what Mr Clark sent the Certifier summarised at [22] above discloses that the use sought to encompass varied kinds of resource recovery: recycling of paper, recycling of building and demolition solid waste, composting, and non-thermal and thermal waste processing. The photograph described above of bagged “sample material in resource recovery shed” demonstrates that use and also that the resource recovery activities went beyond these identified categories involving, as at 18 November 2016, some 500 tonnes of coal product. Even if the evidence was limited to these bales and the Court assumed that they were only temporarily stored before export, it would nonetheless indicate that the Site was used as a resource recovery facility.
The emails from Mr Clark to Laison Earthmoving above at [197] indicate that processing of at least glass had been occurring on the Site since 14 November 2017. That glass has been processed on the Site is supported by the observations made by the council officers above at [199]. The email from Mr Clark to Laison Earthmoving above at [200] further indicates that screening and recovery of material was occurring on the Site.
Such use is readily characterised as a resource recovery facility, being a species of waste or resource management facility within the meaning of the Standard Instrument, the defined terms of which are adopted by cl 1.5(2) of the Codes SEPP and the GLEP. The use of the Site as a “resource recovery facility” or “waste or resource management facility” did not have the requisite development consent and was in breach of s 4.2 and s 76A (as it was before March 2018) of the EPA Act.
Gindurra’s submission that the absence of a written agreement for resource recovery activity between it or Timecon and another entity means that no resource recovery has occurred is inconsistent with the agreed fact that fill has been transported onto the Site despite the absence of a written agreement to that effect.

Gindurra’s submissions

There was no agreement between any of the entities responsible for delivering fill to and occupying the Site to indicate that resource recovery occurred on the Site. This is clear from the following evidence:

email from Mr Clark to Laison Earthmoving dated 5 November 2017: “There is no processing agreement in place between LPH and Timecon therefore no processing is to occur on site”;

email from Mr Clark to Laison Earthmoving dated 14 November 2017: “There is no processing agreement in place, yet the Site is moving towards processing situation [sic]”;

email from Mr Clark to Laison Earthmoving dated 27 November 2017: “The sixth attachment on the 9th of October asking for a processing agreement … LPH that does not even have the courtesy to get an agreement up and running”; and

email from Mr Clark to Laison Earthmoving dated 28 December 2017: “You will need to chase up an agreement with Steve in writing as none of his equipment is to come onto site without knowing the cost of screening of having a written agreement …”.

Mr Eyre stated in cross-examination that he had not personally witnessed any of the activities proposed by the CDCs listed in his affidavit above at [105] (composting, crushing, grinding or separating works, paper or pulp production and waste management facilities or works) as occurring on the Site. He has only seen fill being deposited and machinery operating on the Site. I note that in re-examination Mr Eyre stated that he visited the Site three times on 2 August 2019, several weeks before then and a number of years ago.
Resource recovery is not equivalent to filling, by definition it necessitates processing. No processing and therefore resource recovery has occurred on the Site.

Gindurra caused or allowed unauthorised resource recovery use

“Resource recovery facility” is defined in the Standard Instrument as a building used for the recovery of resources from waste, including separating and sorting, processing or treating, composting, temporary storage, transfer or sale of recovered resources, inter alia. The evidence relied on by the Council summarised above in [196]-[200] identifies glass and other material in the building identified as for resource recovery use in phase 1 in the Masterplan CDC. As the Council submitted at [202] above, the use sought under the Masterplan CDC was a resource recovery use in phase 1. The evidence relied on by the Council discloses temporary storage and the transfer of recovered resources occurring. Whether written agreements existed between Gindurra/Timecon and other entities such as Laison Earthmoving is not a precondition to establishing in fact that such a use occurred. That Mr Eyre did not see any of the specified activities on the Site on the two occasions he visited in 2019 is immaterial.
I have found the Masterplan CDC which purported to approve the resource recovery use in phase 1 is invalid. Any such use was not therefore authorised under the EPA Act. For the reasons already given above at [188] concerning control of the Site by Gindurra or related companies through Mr Clark, the Council has established that Gindurra caused or allowed to be carried out a resource recovery use on the Site for which the necessary development consent was not obtained, in breach of s 4.2(1)(a) (formerly s 76A) of the EPA Act

Exercise of discretion to grant relief

The numerous declarations sought by the Council are set out in the amended summons and whether some or all of these are made is at the discretion of the Court. In Great Lakes Council v Lani (2007) 158 LGERA 1; [2007] NSWLEC 681, the appropriateness of making declarations in civil enforcement proceedings was considered by Preston CJ where breaches of a statute are established on the civil standard of proof. The Court has broad powers to make remedial orders as it thinks fit on finding that a breach of a statute has occurred, at [12]. The appropriateness of also making declarations which are not necessary in order for the Court to have jurisdiction to make other orders should be considered in relation to whether doing so has any practical effect and whether civil proceedings are being used as a substitute for a criminal prosecution at [20]-[25]. The Court in the exercise of its civil enforcement jurisdiction should not be used to punish wrong-doers, at [23].
These considerations apply to the declaration concerning the use of land for the purpose of a resource management facility (prayer 1 in the amended summons), the declaration that filling has been carried out not in accordance with the Fill Consent (prayer 3) and a declaration that the Respondent has polluted the creeks in the council reserves (prayer 4). Given that my findings provide sufficient basis for the making of remedial orders in relation to the matters the subject to these three declarations, I do not consider these to be necessary.
The judicial review aspects of the proceedings concern the validity of the CDCs which I have found to have been issued invalidly. As there is no legal basis for them, it is appropriate that they be declared invalid as provided for in prayers 1A, 1B and 1C. These declarations do have practical effect.
In terms of consequential relief for the breaches of the EPA Act and POEO Act established by the evidence, prayer 2 seeks an order restraining the resource recovery use. The evidence establishes that such a use has been occurring on the Site and an order restraining such a use is appropriate.
The Council seeks the following extensive further relief in the summons:

5.   An order that Respondent carry out the following actions and remedial works:
(a)   Upon service of these Orders, immediately cease all works on the Land other than works required to complete Orders 5(c), (e), (g), (i) and (k) and until (j) and (k) have been completed.
(b)   Within 2 weeks of service of these Orders, submit to Council:
i.   a detailed site survey prepared by a registered surveyor identifying the present levels of the Land at 1m intervals across the Land, at the boundaries of the Land and beyond the boundary until the fill stops. The survey is to indicate the location of any existing sediment and erosion controls, and the location, shape, slopes and heights of stockpiles of fill at 1m intervals.
ii.   a Soil and Water Management Plan prepared by a Certified Professional in Erosion & Sediment Control. The Soil Water Management Plan is to be prepared in accordance with the ‘Blue Book’ (Managing Urban Stormwater: Soils and Construction, Landcom, 2004). The Soil and Water Management Plan is to set out detailed actions to:
•   prevent further sediment from leaving 40 Gindurra Road Somersby, and being deposited onto the land and within the unnamed creeks on 32 and 34 Gindurra Road Somersby and within the 10 metre buffer conservation area, and
•   remove the fill material from 40 Gindurra Road Somersby, and the land and within the unnamed creeks on 32 and 34 Gindurra Road Somersby.
The Soil Water Management Plan will need to provide specific controls for each stage of works:
•   Stage 1: Immediate controls
•   Stage 2: Removal of fill material from within the watercourse, adjacent properties and 10 metre buffer conservation area
•   Stage 3: Removal of fill material from the Land
•   Stage 4: Site stabilisation and ongoing management
The Soil Water Management Plan should be prepared in accordance with the specified steps set out in the Asbestos Construction Management Plan prepared by Progressive Risk Management Pty Ltd, dated June 2016.
The Soil and Water Management Plan is to include:
•   a site survey which identifies contours and approximate grades and the directions of fall,
•   locality of site and allotment boundaries,
•   location of adjoining roads and all impervious surfaces,
•   location of site within catchment including an estimate of flows through the site,
•   existing vegetation and site drainage,
•   nature and extent of clearing, excavation and filling,
•   diversion of run off around disturbed areas,
•   location and type of proposed erosion and sediment control measures,
•   location of site access and stabilisation of site access,
•   location of material stockpiles,
•   location and engineering details with supporting design calculations for all necessary sediment retention basins,
•   location and concept plans of proposed constructed wetlands/ gross pollutant traps, trash racks or trash collection/ separator units,
•   proposed site rehabilitation and landscaping,
•   detailed staging of works (breaking down of catchment disturbed), and
•   maintenance program for erosion and sediment control measures.
All design criteria and calculations used to size soil and water control measures are to be shown. Construction standard drawings are to be provided on each type of soil and water control measure proposed.

(c)   Within 3 weeks of service of these Orders:
i.   carry out the actions specified in the Soil and Water Management Plan; and
ii.   submit to Council a certification by the consultant that prepared the Soil and Water Management Plan that the actions specified in Stage 1 of the Soil and Water Management Plan have been carried out in accordance with the Soil and Water Management Plan.

(d)   Within 6 weeks of service of these Orders submit to Council a Rehabilitation and Vegetation Management Plan. The Plan is be prepared by a suitably qualified ecologist/environmental consultant with tertiary qualifications in Ecology, Conservation & Land Management, Environmental Management or equivalent. This Plan is to address the removal of fill material from and the rehabilitation of the following areas:
i.   within the watercourse on 32 Gindurra Road, Somersby and within the watercourse on 34 Gindurra Road, Somersby,
ii.   within adjacent properties (being 32 and 34 Gindurra Road, Somersby) and
iii.   within the 10 metre buffer conservation area on the Land as shown on approved plans numbered C001 & C002 Rev 03 dated 14 June 2011 prepared by RGH Consulting Group.
The Rehabilitation and Vegetation Management Plan is to include, as a minimum: tree protection measures for existing trees, weed management techniques, species list and density for replanting and any other relevant management actions, a schedule for all remediation and management works, and allocation of responsibilities for each management action. Any species used for re-planting must be from the species nominated in Council’s Bell’s vegetation community description for E26 - Exposed Hawkesbury Woodland, and shall be of local provenance.
The Rehabilitation and Vegetation Management Plan will need to reference the Asbestos Construction Management Plan prepared by Progressive Risk Management Ply Ltd, dated June 2016.

(e)   Within 10 weeks of service of these Orders, remove all fill material from the following areas in accordance with the Rehabilitation and Vegetation Management Plan and Soil Water Management Plan:
i.   within the watercourse on 32 Gindurra Road, Somersby and within the watercourse on 34 Gindurra Road, Somersby,
ii.   within adjacent properties (being 32 and 34 Gindurra Road, Somersby), and
iii.   within the 10 metre buffer conservation area on the Land as shown on approved plans numbered C001 & C002 Rev 03 dated 14 June 2011 prepared by RGH Consulting Group.
All work is to be carried out under the supervision of the ecologist/environmental consultant that prepared the Rehabilitation and Vegetation Management Plan.

(f)   Within 11 weeks of service of these Orders, submit to Council a certification by the consultant that prepared the Soil and Water Management Plan that the actions specified in Stage 2 of the Soil and Water Management Plan have been carried out in accordance with the Soil and Water Management Plan.
(g)   Within 12 weeks of service of these Orders, carry out the rehabilitation actions specified in the Rehabilitation and Vegetation Management Plan for the rehabilitation of the following areas:
i.   within the watercourse on 32 Gindurra Road, Somersby and within the watercourse on 34 Gindurra Road, Somersby,
ii.   within adjacent properties (being 32 and 34 Gindurra Road, Somersby) and
iii.   within the 10 metre buffer conservation area on the Land as shown on approved plans numbered C001 & C002 Rev 03 dated 14 June 2011 prepared by RGH Consulting Group.
All work is to be carried out under the supervision of the ecologist/environmental consultant that prepared the Rehabilitation and Vegetation Management Plan.

(h)   Within 12 weeks of service of these Orders, submit to Council a certification by the consultant that prepared the Rehabilitation and Vegetation Management Plan that the actions required by the Rehabilitation and Vegetation Management Plan have been carried out in accordance with the Rehabilitation and Vegetation Management Plan.
(i)   Within 18 weeks of service of these Orders, remove fill material from the Land, so that the levels of the Land are in accordance with the plans numbered C001 & C002 Rev 3 dated 14 June 2011, prepared by RGH Consulting Group, as approved by the Fill Consent.
(j)   Within 19 weeks of service of these Orders:
i.   submit to Council a detailed site survey prepared by the registered surveyor that prepared the site survey required by Order 5(b)(i), identifying the levels of the Land at 1m intervals across the site and at the boundaries of the site. The site survey required by this Order 5(i) is to include a certification by the surveyor that the levels of the Land are in accordance with Order 5(h).

ii. submit to Council a certification by the consultant that prepared the Soil and Water Management Plan that the actions specified in Stage 3 and Stage 4 of the Soil and Water Management Plan have been carried out in accordance with the Soil and Water Management Plan.

(k) Within 21 weeks of service of these Orders erect a permanent 2 metre high chain mesh fence that delineates the 10 metre conservation buffer zone as shown on approved plans numbered C001 & C002 Rev 03 dated 14 June 2011 prepared by RGH Consulting Group. An access gate shall be provided for maintenance purposes and located on Gindurra Road. Signage shall be placed every 40 metres along the entirety of the fence. This sign shall warn that land beyond this fence has been identified as being of significant environmental habitat.

Evidence

The Council read the following evidence in relation to the exercise of the Court’s discretion. Mr Jamie Loader, unit manager environment and certification for the Council, affirmed an affidavit dated 7 November 2018. He stated that the Council’s process in relation to CDCs received by private certifiers is purely administrative in nature. CDCs are received either electronically or in hard copy, logged into the Council’s property management system by customer service or records staff and an invoice is generated for record-keeping. CDCs are not assigned to any council officer for assessment and are not reviewed in any specific way. The Council received 1,254 CDCs from private certifiers in the 2017/2018 financial year. The Council does not have the resources to conduct a detailed review of this number of CDCs.
Mr Loader stated that the Masterplan CDC was received by the former Gosford City Council on 13 January 2016 and the Mod 2, Mod 3 and Mod 4 CDCs were received by the Council on 13 December 2016, 27 March 2017 and 11 October 2017 respectively. All the CDCs were added to the Council’s record system and no further action was taken.
Ms Hitchenson summarised the enforcement action taken by the Council in relation to Gindurra in her affidavit dated 16 May 2018 as follows:

30 March 2017: Council issued a notice of intent to give Order 12 pursuant to former s 121B of the EPA Act to Gindurra requiring it to cease importing fill onto the Site and restore levels to “original pre-fill levels”;

21 April 2017: Council issued Order 12 to Gindurra. The Council informed the Court that this Order was revoked, see Tcpt, 8 August 2019, p 22(45);

5 December 2017: Council issued Mr Clark with a notice of intention to give a direction to take preventative action under s 96 the POEO Act (cease placing fill in the conservation buffer and the watercourses adjacent to the Site and implement a soil and water management plan) and to give Mr Clark Orders 1 and 15 pursuant to former s 121B of the EPA Act requiring him to cease the importation of fill onto the Site and within the conservation buffer and implement a Council-approved plan of management addressing the removal of fill and rehabilitation;

21 February 2018: Council issued Mr Clark with a prevention notice pursuant to s 96 of the POEO Act ;

23 February 2018: Council issued Orders 1 and 15 pursuant to former s 121B of the EPA Act; and

6 March 2018: Council issued Mr Clark with a letter revoking Orders 1 and 15 under the EPA Act and the notice under the POEO Act.

On 8 March 2018 Ms Hitchenson attended a “without prejudice” meeting at the Site with Mr Woods (Council’s acting unit manager), Mr Ball (Council’s acting general counsel), Mr Clark and Mr Balog (Mr Clark’s legal representative at the time). Following this meeting, “without prejudice” communications occurred between the Council and Mr Clark in relation to Council’s concerns in relation to the Site. The Council’s concerns were not resolved.

Council’s submissions

In relation to delay by the Council in commencing proceedings, measured against when the approval of the Masterplan CDC and the Mod 3 and Mod 4 CDCs were communicated to the Council, the Council accepted that it was notified of the approval of each decision. This is required of a certifier by the EPA Act. The Council accepted a significant period of time has passed since the issue of the Masterplan CDC (and obviously less so in the case of the Mod 3 and Mod 4 CDCs). Such delay, however, should be considered against the context of the parallel, private certification regime for complying development established under the EPA Act. The decision-making process for such certificates is undertaken by accredited certifiers who have no connection with a council, and who are obligated to communicate to a council the issuing of a certificate and to provide the documents on which the certification was based: EPA Regulation cl 130(4). The EPA Act assigns no role or function to a council who is in receipt of such an instrument. A council is in this regard no more than an administrative central repository of CDCs.
Although councils must be taken to “know” of a decision when it is received, the particular context and the evidence of Mr Loader shows why it is unsurprising that the Council (and the position is likely to be similar for councils generally) receives such certificates and handles them in a wholly administrative manner (essentially a filing function). The evidence of Mr Loader shows why it is neither practical nor feasible for every CDC received by councils to be reviewed, let alone be investigated for legal validity. There is neither reason nor sufficient resources to review them.
It is not until there is a cause to enquire into activities on a particular site that a council investigates the consent position. The evidence shows the taking of enforcement action of various kinds from March 2017 onwards (Affidavit, Ms Hitchenson, 16 May 2018 see above at [218]). Significant attempts were made to obtain action from Gindurra which were challenged, then an attempt to resolve the dispute in March 2018 (see above at [219]). Only when these efforts were unsuccessful did Council commence these proceedings in May 2018. Put in context there is no relevant delay.
The relief sought by the Council in the amended summons although detailed does little more than seek to return the Site to the state approved under the Fill Consent. The detailed steps in that relief reflect an intention to take steps in a considered and planned manner informed by relevant expert opinion.
More fundamentally, the removal of unlawful fill is justified given the evidence of planned, concerted activity by Gindurra over a number of years for gain. Not granting relief rewards unlawful behaviour with private advantage which would undermine confidence in planning and environmental laws.

Gindurra’s submissions

The Court should decline to grant relief in the exercise of its jurisdiction given the delay in commencing proceedings.
Gindurra has a history of complying with the conditions of the Fill Consent. For example geotechnical reports were prepared in relation to the Site. An aerial photograph of the Site that Gindurra said was dated 2015 shows that there was no fill outside of the southern and western boundaries of the Site. Mr Eyre stated that he had not personally observed the activities said to be proposed by the CDCs occurring on the Site, above at [207].
DA 30827/2006 authorised the completion of “clearing and replanting of native tree and shrub species in the 10 metre conservation buffer to Piles Creek”. Gindurra emphasised that this DA authorised clearing in the conservation buffer indicating that the land must not be ecologically significant. This highlights the unreasonableness of the relief sought by the Applicant.
If the orders in prayer 5 of the amended summons are made by the Court, Gindurra will incur significant expense ($7-17 per tonne amounting to a total of $3.4 million) in removing the fill which is above the Fill Consent levels from the Site.
Gindurra has cooperated with the Council and tried to conciliate with the Council through the Calderbank offers made pursuant to r 42.13 of the Uniform Civil Procedure Rules 2005 (UCPR) to the Council on 18 June and 3 July 2018.
Under s 25E of the Land and Environment Court Act 1979 (LEC Act), the Court should consider making an order under Pt 3 Div 3 instead of declaring or determining that a development consent is invalid. In this case the state of mind of the Certifier when the CDCs were issued is unknown to the Court hence the CDCs should not be invalidated. It is difficult to ascertain the state of mind of the Certifier without interrogating him.
The work the subject of the orders the Council seeks requires development consent under the EPA Act and possibly an environment protection licence under the POEO Act.

Consideration

I accept the Council’s submission that although s 25E of the LEC Act does apply to CDCs (since “development consent” is defined under s 1.4 of the EPA Act to include CDCs), it is inappropriate in the present case where the Council’s judicial review grounds go to power (jurisdiction). Preston CJ stated in Brown v Randwick City Council at [87] that where there is an absence of power to grant development consent, it is inappropriate to employ the power under s 25B and therefore s 25E of the LEC Act. The same observation should apply to CDCs. Accordingly, I will consider whether to make the extensive remedial orders sought in the summons outlined above.
The circumstances of this case highlight some of the shortcomings of the present system of private certification under the EPA Act where that function is conducted incompetently. The Council in seeking to explain the timing of commencement of the proceedings submitted that local councils are not resourced to oversight the CDCs they receive, in large numbers in this case. That a document titled “Masterplan CDC” did not raise immediate alarm within the Council shows that absence of resources has significant consequences for the Council and consequently the wider community. While a certifier can be referred to the Building Professionals Board for disciplinary action after issuing an instrument beyond power, as in this case, such instruments continue to have legal effect until declared invalid by the Court.
While the Council submitted that it has not delayed in commencing these proceedings, it clearly has. It received notification of the CDCs and these were filed in council records, see at [217] above. It was aware from at least January 2017 or shortly thereafter of issues with fill beyond the Fill Consent being placed at the Site, the survey above at [66] being dated 24 January 2017. The Council’s case is that the bulk of the fill complained of was placed from January 2017 up to the survey in May 2019. Numerous council officers attended the Site for numerous inspections in February, March and November 2017, and February, March and April 2018 leading up to the commencement of these proceedings in May 2018, well over a year after the Council became aware there was a problem at the Site. That ineffective enforcement action was attempted during that period does not explain away that substantial delay. The one notice and three orders issued to remedy alleged breaches of the POEO Act and EPA Act respectively in April 2017 and February 2018 (Affidavit, Ms Hitchenson, 16 May 2018 and Tcpt, 8 August 2019, p 22(45) see above at [218]) were ultimately revoked by the Council. Very curiously and inconsistently, given what was happening in one part of the Council in terms of attempted enforcement action, the Council as a water supply authority issued certificates under the WM Act in July 2017 in relation to a masterplan for 89 industrial warehouse units for the Site.
Gindurra submitted that it had complied with the conditions of the Fill Consent, no fill was placed by it outside the boundaries of the land in 2015 and Gindurra did not place the fill complained of in that location in any event. That Gindurra complied with the Fill Consent and that fill was not placed beyond the Site in 2015 is not disputed but that is not the focus of these proceedings. While I have accepted that Gindurra did not place the fill beyond the Site’s boundaries, I have found that it exercised the relevant degree of control over those who did to justify a finding that it is liable in a legal sense for what has occurred. That includes placement of fill beyond the Site boundaries and pollution of the creeks on the council reserves. That another DA authorises clearing and replanting of native vegetation in the 10 metre conservation buffer does not establish that this land lacks ecological significance, contrary to Gindurra’s submission.
I cannot agree with the characterisation by the Council of the benefit derived by Gindurra as unlawful over many years. It obtained CDCs from the Certifier which it was entitled to rely upon under the scheme established in the EPA Act. This is not a scenario of an absence of any consent or approval at the time work was carried out. It is clear from the correspondence between the Certifier and Mr Clark summarised above in [22]-[23] that the latter was heavily involved in encouraging the Certifier to issue the CDCs, even where the Certifier himself identified problems with what was proposed, as in the Certifier’s email dated 14 January 2017 summarised above at [22(d)]. Ultimately the Certifier chose to issue the CDCs under challenge. That he was completely mistaken in doing so does not mean that Gindurra’s actions were unlawful at the time filling occurred in the way the Council submitted. The substantial delay in commencing proceedings weighs heavily in these circumstances.
The balancing exercise of what is the appropriate relief must also take into account the obvious and substantial impacts on the neighbouring council reserves, given that fill spilled from the Site onto the two council reserves and the 10 metre conservation buffer specified in the Fill Consent was completely ignored.
I must balance all these matters in determining appropriate orders. Particularly important is that these proceedings should have been commenced far more promptly. That is a substantial reason why I am not going to order all of the relief sought by the Council as substantial expense is likely to be incurred by Gindurra in removing unlawful fill. While I have only untested statements by Mr Clark from the bar table as to the cost of removal per tonne, the large volume of fill means the cost will be large even at the lowest end of the scale of $7-$17 per tonne.
The extensive orders sought are that no further work occur on the Site except for what the orders require and these are summarised as follows:

Within two weeks of service of orders a detailed site survey identifying specified matters and a soil and water management plan prepared in a certain way and addressing a large number of matters is required. Four stages of work are to be specified in the soil and water management plan: stage 1 immediate controls; stage 2 removal of fill material from within the watercourse, adjacent properties and 10 metre conservation buffer; stage 3 removal of fill material from the Site; stage 4 site stabilisation and ongoing management.

Within three weeks of service of orders carry out the requirements specified in the soil management plan and provide a certification by the consultant who prepared the plan that actions to comply with stage 1 have been carried out in accordance with it.

Within six weeks of service of orders submit to the Council a rehabilitation and vegetation management plan prepared by a suitably qualified expert addressing the removal of fill and rehabilitation of the watercourses in the council reserves inter alia.

Within 10 weeks of service of orders remove all fill from specified areas such as the watercourses in the council reserves.

Within 11 weeks of service of orders submit to the Council certification that stage 2 of the soil and water management plan has been carried out appropriately.

Within 12 weeks of service of orders carry out rehabilitation in accordance with the rehabilitation and vegetation management plan within the watercourses in the council reserves, otherwise within the reserves and within the 10 metre conservation buffer.

Within 12 weeks of service of orders submit a certification by an appropriate consultant that actions have been carried out in accordance with the rehabilitation and vegetation management plan.

Within 18 weeks of service of orders remove fill material for the land in accordance with the Fill Consent plans C001 and C002 Rev 3 dated 14 June 2011.

Within 19 weeks of service of orders submit to the Council a survey identifying levels at one metre intervals across the Site and at the boundaries and certification by a consultant that stage 3 and stage 4 of the soil and water management plan have been carried out as required by that plan.

Within 21 weeks of service of orders erect a permanent two metre high chain mail fence that delineates the 10 metre conservation buffer as shown on approved plans numbered C001 and C002 dated 14 June 2011 prepared by RGH Consulting Group with specified signage.

I intend to make amended orders ensuring fill is removed from creeks and the adjoining council reserves and the 10 metre conservation buffer on the Site and that these areas are rehabilitated and fencing is erected to protect the 10 metre buffer. I am not going to order the removal of fill placed over and above the Fill Consent unless it is necessary to do so in whole or part for safety reasons because the slope of the existing fill cannot be appropriately contained. Order 5(a) will be made. The orders requiring the preparation of a survey and plan outlined in par 5(b)(i) and (ii) except for “Stage 3: Removal of fill material” from the Site will be made. Orders 5(c)-(h) will also be made. It may be that other orders are needed in order to give effect to this judgment. As I will not be making 5(i) at this stage, amendment of order 5(j) will be necessary. Order 5(k) will also be made. The timeframes for compliance with the orders will be further discussed with the parties before finalisation.
In his further impermissibly lengthy submissions at pars 2.28-2.35 filed after the hearing, Mr Clark expanded on his brief submission at the hearing that any work required by any court orders would need development consent. Requiring the survey and plan is not relevant to that argument and their preparation will be ordered. The Council has not addressed this issue and should have the opportunity to do so. A timetable for further brief written submissions by the Council on this issue and for finalisation of the orders will be discussed with the parties.

Costs

In the event that the Court declares the CDCs invalid, Gindurra requested that costs be reserved. Costs in Class 4 proceedings are generally awarded to the successful party as provided by r 42.1 of the UCPR. The Council has been largely successful and would be entitled to its costs under this approach. Whether the Certifier and/or Gindurra should pay some or all of these costs arises for consideration. The opportunity will be provided to them to make submissions on costs before any costs order is made.

Declarations

I make the following declarations:

Complying Development Certificate No 14-0912 issued on 21 December 2015 is invalid and of no effect (Masterplan CDC).

Complying Development Certificate No 14-0912-3 issued on 20 March 2017 is invalid and of no effect (MOD3 CDC).

Complying Development Certificate No 14-0912-4 issued on 26 September 2017 is invalid and of no effect (MOD4 CDC).

**********

Amendments

22 November 2019 - cover sheet - typographical error - added omitted hearing dates

Decision last updated: 22 November 2019

Medium Neutral Citation:	Central Coast Council v 40 Gindurra Road Somersby Pty Ltd (No 2) [2019] NSWLEC 171
Hearing dates:	5-8 August 2019, 30 August 2019 (Applicant’s written submissions, 10 September 2019 (Respondent’s written submissions)
Decision date:	07 November 2019
Jurisdiction:	Class 4
Before:	Pain J
Decision:	(1) Complying Development Certificate No 14-0912 issued on 21 December 2015 is invalid and of no effect (Masterplan CDC). (2) Complying Development Certificate No 14-0912-3 issued on 20 March 2017 is invalid and of no effect (MOD3 CDC). (3) Complying Development Certificate No 14-0912-4 issued on 26 September 2017 is invalid and of no effect (MOD4 CDC).
Catchwords:	JUDICIAL REVIEW – validity of complying development certificate titled “Masterplan CDC” for land zoned industrial – whether proceedings statute barred – staged development cannot be subject of complying development certificate – development subject of Masterplan CDC impermissibly designated development – failure to comply with State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 means not complying development JUDICIAL REVIEW – validity of two modifications of Masterplan CDC – failure to comply with State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 means not complying development CIVIL ENFORCEMENT – deposition of fill without development consent – unauthorised deposition of fill in neighbouring council reserves – inadequate or no sediment and erosion control measures in place for fill deposition CIVIL ENFORCEMENT – operation of resource recovery facility on land without development consent CIVIL ENFORCEMENT – water pollution – fill and sediment deposited in creeks in neighbouring council reserves – respondent owner was occupier and arranged for fill to be placed CIVIL ENFORCEMENT – substantial remedial orders sought – exercise of discretion whether to make declarations and remedial orders where substantial delay in commencement of enforcement proceedings by council
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 1.4, 4.2, 4.28, 4.31, 4.59, 6.4, 9.46 (current), 4, 75W, 76A, 77A, 83B, 84, 85, 85A, 86A, 87, 91AB, 96, 101, 109C, 121B (previous) Environmental Planning and Assessment Amendment Act 1997 Environmental Planning and Assessment Regulation 2000 cll 4, 6, 49, 118, 124, 129B, 130, 137, Sch 3 Gosford Development Control Plan 2013 Ch 6.7 Gosford Local Environmental Plan 2014 Land and Environment Court Act 1979 ss 25B, 25E Local Government Act 1993 s 68 Protection of the Environment Operations (Waste) Regulation 2014 reg 86 Protection of the Environment Operations Act 1997 ss 96, 120, 143, 252, 257, Sch 1, Dictionary Standard Instrument – Principal Local Environmental Plan Dictionary State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 cll 1.5, 1.17, 1.18, 5A.2, 5A.4, 5A.5, 5A.26, 5A.27, 5A.28 Uniform Civil Procedure Rules 2005 rr 42.1, 42.13 Water Management Act 2000 ss 305, 306, 307
Cases Cited:	Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 Billinudgel Property Pty Ltd v Minster for Planning [2016] NSWLEC 139 Blacktown City Council v Penetrators Pty Ltd (No 3) [2014] NSWLEC 4 Brooklyn Resort Pty Ltd v Hornsby Shire Council (1999) 105 LGERA 208; [1999] NSWLEC 214 Brown v Randwick City Council (2011) 183 LGERA 382; [2011] NSWLEC 172 Burrell v Mullin [2018] NSWLEC 165 Central Coast Council v 40 Gindurra Road Somersby Pty Ltd [2018] NSWLEC 79 Chief Executive, Office of Environment and Heritage v Kyluk Pty Ltd (No 4) (2014) 212 LGERA 1; [2014] NSWLEC 4 Community Association DP 270253 v Woollahra Municipal Council (2013) 211 LGERA 412; [2013] NSWLEC 184 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 De Haas v Williams (2004) 132 LGERA 195; [2004] NSWLEC 15 Department of Environment and Climate Change v Olmwood Pty Ltd (2010) 173 LGERA 366; [2010] NSWLEC 15 Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (No 2) (2018) 234 LGERA 1; [2018] NSWLEC 153 Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2018] NSWLEC 99 Foley v Padley (1984) 154 CLR 349; [1984] HCA 50 Gandangara Local Aboriginal Land Council v New South Wales Aboriginal Land Council (No 2) [2013] NSWLEC 127 Goodwin v Phillips (1908) 7 CLR 1; [1908] HCA 55 Great Lakes Council v Lani (2007) 158 LGERA 1; [2007] NSWLEC 681 Hornsby Shire Council v Trives (No 3) [2015] NSWLEC 190 Hornsby Shire Council v Trives [2014] NSWLEC 171 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 184 LGERA 104; [2011] NSWCA 349 Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Lend Lease (Millers Point) Pty Limited v Council of the City of Sydney [2014] NSWLEC 64 Maund v Shoalhaven City Council [2019] NSWLEC 89 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Murdoch v Holroyd City Council [1996] NSWCA 376 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No 2) (1944) 69 CLR 407; [1944] HCA 42 R v Hickman; Ex parte Fox (1945) 70 CLR 598; [1945] HCA 53 R v PLV (2001) 51 NSWLR 736; [2001] NSWCCA 282 Roden v Bandora Holdings Pty Ltd [2015] NSWLEC 191 SAS Trustee Corporation v Woollard [2014] NSWCA 75 Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1998) 103 LGERA 338 Trives v Hornsby Shire Council (2015) 208 LGERA 361; [2015] NSWCA 158 Wilkie v Blacktown City Council (2002) 121 LGERA 444; [2002] NSWCA 284 Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 5) [2013] NSWLEC 68
Texts Cited:	D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, 2014, Butterworths) Macquarie Dictionary (online) Oxford English Dictionary (online)
Category:	Principal judgment
Parties:	Central Coast Council (Applicant) 40 Gindurra Road Somersby Pty Ltd (First Respondent) William A Dagger (Second Respondent)
Representation:	COUNSEL: T To (Applicant) R Clark (director, First Respondent) Submitting appearance (Second Respondent) SOLICITORS: Central Coast Council (Applicant) N/A (First Respondent) Clyde & Co (Second Respondent)
File Number(s):	18/156286

19 September 2005		Consent for 8 Lot Industrial Subdivision granted by former Gosford City Council (DA/25533/2004) (“Subdivision Consent”). Land subject of the consent is Lot 2 DP 771309 (which includes land presently known as 40 Gindurra Road Somersby NSW 2250).
19 September 2006		Modification of Subdivision Consent
7 May 2007		Consent for Land Filling granted by former Gosford City Council (DA/32465/2007) (“Land Fill Consent”). Land subject of Land Fill Consent is Lot 2 DP 771309.
22 November 2007		Modification of Land Fill Consent
15 December 2008		Modification of Subdivision Consent
4 March 2009		Modification of Subdivision Consent
27 July 2009		Registration of plan of subdivision creating Lots 1001 and 1002 DP 1138136.
11 March 2011		Transfer of Lot 1002 DP 1138136 to 40 Gindurra Road Somersby Pty Ltd
14 June 2011		Modification of Land Fill Consent – Lots 1002, and 1001 DP 1138136.
26 April 2012		Modification of Land Fill Consent – Lots 1002, and 1001 DP 1138136.
21 December 2015		Complying development certificate no. 14-0912 issued by William A Dagger (“Masterplan CDC”).
1 August 2016		Council inspection of the land.
18 November 2016		Modification of Masterplan CDC (CDC 14-0912-2) [Mod 2 CDC]
23 December 2016		Publication of notice of issue of Masterplan CDC and Mod 2 CDC in newspaper.
28 February 2017		Council inspection of the land.
15 March 2017	Council inspection of the land.
20 March 2017	Modification of Masterplan CDC (CDC 14-0912-3) (“Mod 3 CDC”).
23 March 2017	Notices (2) under s.143 of the Protection of the Environment Operations Act 1997 (“POEO Act”) given by the First Respondent, that the land could be lawfully used as a waste facility.
30 March 2017	Council issues notice of intention to give an order under former s.121B of the Environmental Planning and Assessment Act 1979 (EPA Act).
21 April 2017	Council issues order under the former s.121B of the EPA Act.
4 July 2017	Council issues certificates of compliance to Gindurra pursuant to s 307 of the Water Management Act 2000 (WM Act).
11 July 2017	Council issues certificates of compliance to Gindurra pursuant to s 307 of the WM Act.
26 September 2017	Modification of Masterplan CDC (CDC 14-0912-4) (“Mod 4 CDC”).
9 November 2017	Council receives complaint in relation to the land.
10 November 2017	Council inspection of the land. First observation of fill, and sediment into the creeks located in the public reserves adjoining the land.
5 December 2017	Council issues notice of intention to give direction under the POEO Act.
15 December 2017	Notice under s.143 of the POEO Act given by the First Respondent, that the land could be lawfully used as a waste facility.
20 December 2017	Strata Plan SP96758 registered. Seven lot strata subdivision of Lot 1002 DP 1138136.
31 January 2018	Notice under s.143 of the POEO Act given by Tom Cooper, that the land could be lawfully used as a waste facility.
2 February 2018	Council inspection of the land.
12 February 2018	Survey of the land undertaken for the Council.
15 February 2018	Timecon Pty Ltd, enters into contract with Capital K (Aust) Pty Ltd, for supply, transport and delivery of fill to the land.
21 February 2018	Council issues order to take prevention action under the POEO Act.
23 February 2018	Council issues order under s.121B of the EPA Act
6 March 2018	Orders issued on 21 February 2018, and 23 February 2018 revoked by the Council.
8 March 2018	Without prejudice discussions between the Council, and director of the First Respondent, including his solicitor.
23 March 2018	Council inspection of the land. First observation of pollution of waters in the creeks located in the public reserves located adjoining the land.
31 March 2018	Drone footage taken of the land.
3 April 2018	Council inspection of the land.
24 April 2018	Council inspection of the land.
26 April 2018	Notice under s.143 of the POEO Act given by Somersby Landscape Supplies Pty Ltd that the land could be lawfully used as a waste facility.
18 May 2018	Class 4 proceedings commenced
23 October 2018	Council inspection of the land.
28 November 2018	Summons for Class 4 proceedings amended.
4 February 2019	Council inspection of the land.
2 July 2019	Council inspection of the land.