Kempsey Shire Council v Thrush & Anor

[2011] NSWLEC 93

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kempsey Shire Council v Thrush & Anor [2011] NSWLEC 93
Hearing dates:	10 May 2011, 11 May 2011
Decision date:	27 May 2011
Jurisdiction:	Class 4
Before:	Pain J
Decision:	The work carried out on the right of carriage way without development consent was in breach of cl 7(1)(b) and (c) of SEPP 14. In the circumstances, it is not appropriate to exercise the Court's discretion to make declarations or remedial orders.
Catchwords:	Civil enforcement: - whether work carried out on right of carriage way without development consent in breach of SEPP 14 - whether Court should exercise discretion to make declarations and restoration order
Legislation Cited:	Conveyancing Act 1919 s 88B, s 181A, Sch 8 Environmental Planning and Assessment Act 1979 s 121B, s 125, s 149 Kempsey Local Environmental Plan 1987 State Environmental Planning Policy No 14 - Coastal Wetlands cl 4, cl 7, cl 7A
Cases Cited:	117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 F Hannan Pty Ltd v Electricity Commission (NSW) (No 3) (1985) 66 LGRA 306 Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1 Kirkjian v Tower (Waddell CJ in Eq, 6 July 1987, unreported) Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Texts Cited:	A Bradbrook and M Neave, Easements and Restrictive Covenants in Australia, 2nd ed (2000) Butterworths Macquarie Dictionary, 3rd ed (rev) (2001) Macquarie Library Planning and Development Service (NSW), Lawbook Co, Sydney
Category:	Principal judgment
Parties:	Kempsey Shire Council (Applicant) Peter Michael Walter Thrush (First Defendant) Vincent Gullotto (Second Defendant)
Representation:	Mr G Underwood (Applicant) Mr P Thrush (First Defendant - in person) Mr V Gullotto (Second Defendant - in person) Cooney Harvey Doney (Applicant)
File Number(s):	40711 of 2010

Judgment

1. Kempsey Shire Council (the Council) is seeking declarations that specified works have been undertaken by Mr Thrush, the First Defendant, in breach of cl 7 of the State Environmental Planning Policy No 14 - Coastal Wetlands (SEPP 14) on land owned by Mr Gullotto, the Second Defendant (lot 43 in DP 754431) at Kundabung. Orders requiring Mr Thrush to lodge a development application (DA) and a restoration plan are sought. The same orders against Mr Gullotto are sought in the alternative. The failure to comply with SEPP 14 is a breach of the Environmental Planning and Assessment Act 1979 (the EPA Act) pursuant to s 125. Mr Gullotto has cross-claimed against Mr Thrush seeking a similar declaration and orders to those sought by the Council plus his costs. Mr Thrush and Mr Gullotto represented themselves at the hearing.

1. Mr Thrush owns lot 42 in DP 754431 which has a right of carriage way, on an existing track, over lot 43. That is the only access to lot 42. There is no dispute that part of the right of way on lot 43 is through SEPP 14 wetland area. The parties agree that approximately 120m of the right of carriage way is within the SEPP 14 wetland area. Some work was done on the right of way by or at the request of Mr Thrush in the SEPP 14 wetland area. That work is the subject of these proceedings. Work was also done to the north and south of that area in July 2009 along the right of way. There is disagreement about the extent of work undertaken by Mr Thrush within the SEPP 14 wetland area of the right of way such as whether it included clearing of native vegetation. It is agreed that no development consent was granted by the Council for the work that Mr Thrush did in July 2009.

SEPP 14

1. Under cl 4(1) this SEPP applies to land outlined on the relevant departmental map. Clause 7 provides:

(1) In respect of land to which this policy applies, a person shall not:

(a) clear that land,

(b) construct a levee on that land,

(c) drain that land, or

(d) fill that land,

except with the consent of the council and the concurrence of the Director.

...

(3) Pursuant to section 29 of the Act, development for which consent is required by subclause (1) is declared to be designated development for the purposes of the Act.

(4) In this clause:

clearing , in relation to land, means the destruction or removal in any manner of native plants growing on the land, but does not include:

(a) the destruction or removal of a plant declared to be a noxious weed within the meaning of the Noxious Weeds Act 1993 , by means not likely to be significantly detrimental to the native ecosystem, or

(b) the incidental destruction or removal of native plants lying adjacent to any such noxious plants occurring unavoidably during the process of destroying or removing those noxious plants, or

(c) the destruction or removal of native plants, within 3 metres of the boundary between the lands owned or occupied by different persons, for the purpose of erecting or maintaining a dividing fence between those lands, or

(d) the destruction or removal of native plants, within 0.5 metres of the boundary between the lands owned or occupied by different persons, for the purpose of enabling a survey to be carried out along that boundary by a surveyor registered under the Surveyors Act 1929.

native plants means plants indigenous to the State of New South Wales, including trees, shrubs, ferns, vines, herbs and grasses indigenous to the State.

(5) This clause does not apply to the carrying out of restoration works.

1. Clause 7A provides:

(1) In respect of land to which this policy applies, a person must not carry out restoration works except with the consent of the council and the concurrence of the Director.

(2) An applicant for consent to carry out restoration works must lodge with the council a restoration plan prepared in accordance with the guidelines issued by the Department of Urban Affairs and Planning.

(3) In considering whether to grant concurrence under subclause (1), the Director must take into consideration the adequacy of the restoration plan lodged by the applicant with the council.

1. A useful chronology was provided by the Council to which I have added events which are not in dispute. The work the subject of this court action occurred in 2009 but events in 2008 also provide relevant background and are included.

14 January 2008 - Mr Gullotto advised the Council that Mr Thrush was dumping road base on the right of carriage way in the wetlands area on lot 43.

22 January 2008 - The Council forwarded correspondence to Mr Thrush requesting advice as to works undertaken and evidence of any approvals.

17 March 2008 - Mr Thrush replied to the Council.

11 April 2008 - Mr Thrush lodged DA with the Council to "upgrade existing road of leagal (sic) access to lot 42". The DA did not include the lodgement fee or the owner's consent from the owner of lot 43.

21 May 2008 - Inspection by officers of the Council of the right of carriage way on lot 43.

23 May 2008 - Notice of proposal to serve an order served by the Council upon Mr Thrush.

30 May 2008 - Notice of proposal to serve an order served by the Council upon Mr Gullotto.

3 June 2008 - Mr Gullotto forwarded correspondence to the Council.

4 June 2008 - Mr Thrush forwarded correspondence to the Council.

25 June 2008 - The Council forwarded correspondence to Mr Gullotto advising that they did not intend to issue an order against him.

29 July 2008 - The Council served an order in accordance with s 121B of the EPA Act upon Mr Thrush.

31 July 2009 - Officers from the Council inspected lot 43.

4 August 2009 - Further inspection of lot 43 by officers of the Council. Photographs taken.

12, 13 August 2009 - Further onsite meeting by officers of the Council on lot 43.

19 August 2009 - The Council forwarded order under s 121B of the EPA Act to Mr Thrush.

4 September 2009 - Correspondence forwarded to Mr Thrush and Mr Gullotto setting out requirements of the Council.

23 September 2009 - Mr Thrush's former solicitors sent letter to Mr Gullotto requesting owner's consent.

28 September 2009 - The Council received a letter from the former solicitor on behalf of Mr Thrush.

16 October 2009 - The Council responded to the correspondence received by them on 28 September 2009.

November 2009 - Mr Thrush's former solicitors sent letter to the Council enclosing a DA with report from Rosewood Environmental Services (exact date of lodgement unclear).

Late November 2009 - Mr Gullotto received copy of letter to the Council, the DA and report from Rosewood Environmental Services.

27 November 2009 - Mr Thrush's former solicitors sent letter to Mr Gullotto's former solicitors seeking owner's consent from Mr Gullotto.

17 February 2010 - Letter from the Council's solicitors to Mr Thrush's former solicitors requesting a restoration plan and that Mr Thrush provide to Mr Gullotto a DA addressing the restoration work for his consent.

3 March 2010 - Mr Thrush's former solicitors sent letter to the Council's solicitors and Mr Gullotto including an amended DA, report from Rosewood Environmental Services and DEX Consulting Pty Ltd restoration plan.

31 March 2010 - Letter from Council's solicitors to Mr Thrush's former solicitors advising that the restoration plan was not in accordance with SEPP 14.

9 June 2010 - Mr Thrush through his consultant DEX Consulting lodged amended plan with the Council.

10 November 2010 - DEX Consulting restoration plan lodged with the Council.

26 November 2010 - Letter from the Council's solicitors to Mr Thrush's former solicitors advising that the restoration plan was inadequate.

Council's affidavit evidence

1. Ms Katherine Alberry's affidavit dated 13 August 2010 attaches the relevant legal instruments such as title searches of lots 42 and 43, the relevant deposited plan (DP 641654) and s 88B document, s 149(2) EPA Act certificates which identify the zoning of lot 43 and that SEPP 14 applies, a map of the SEPP 14 wetland area on and around lot 43, correspondence between the Council and Mr Thrush and Mr Gullotto from 2008 when work was done on the right of way by Mr Thrush. Mr Gullotto complained to the Council about this work in January 2008. Events otherwise set out in the chronology are identified in her affidavit. Ms Alberry inspected lot 43 on 31 July 2009 following a complaint from Mr Gullotto. She observed work along the right of way including in the SEPP 14 wetland area. On 4 August 2009 she inspected lot 43 again when it was drier and took a number of photographs along the right of way (annexure Q to her affidavit). A s 121B order was issued to Mr Thrush requiring cessation of unauthorised works within the SEPP 14 wetland area of the right of way inter alia. A DA was lodged by Mr Thrush with the Council which did not have owner's consent.

1. Ms Alberry gave oral evidence about how she located the area of the SEPP 14 wetland on lot 43 when she inspected it on 31 July 2009 and identified which photographs depicted the SEPP 14 area of the right of way track. Mr Thrush disputed that the location shown in these photographs were of the SEPP 14 wetland area of the track. In particular he disputed whether photographs showing three pipes on the ground were in the SEPP 14 area, Mr Thrush suggesting they were not. Ms Alberry believed the three exposed pipes shown in some of the photographs were in the SEPP 14 wetland area. Ms Alberry stated that there is a provision in the official SEPP 14 plan which states that a 25m margin should be allowed around the black line depicting the boundary of the SEPP 14 wetland area.

1. The Council tendered the Kempsey Local Environmental Plan 1987 and relevant zoning table. The land is zoned 1(a3) (rural "A3" agricultural protection zone).

1. Mr Michael Davies, Council officer, swore an affidavit dated 18 April 2011 attaching correspondence with Mr Thrush and photographs taken on 21 May 2008. In his letter dated 22 January 2008 Mr Davies advised that a search of Council records failed to locate approval for clearing in SEPP 14 wetland area, filling the land within SEPP 14 wetland area and erection of several structures in flood-prone land. He sought Mr Thrush's advice as to when the works were conducted and whether any approvals were obtained. In his letter to Council dated 17 March 2008, Mr Thrush stated that he has a right of carriage way and that prior to the heavy rainfall the road "was a formed up road with a gravel base". Mr Thrush said he needed to "get the formation back onto the 300m section and put in a series of pipes to allow the water to go under the road." He added that he is aware it is a SEPP 14 zone and will not "make any changes outside of the forming up of the road and using pipes will allow the water to get from east to west." He emphasised that he "will not be using any fill, just putting formation back onto a once already formed road" and sought Council's approval to fix the access road to his property.

1. Mr Stubbs swore an affidavit dated 2 May 2011. He is a neighbouring occupier of land next to lot 42. He attests to seeing gravel being brought by a truck and dumped on the right of way on lot 43 in 2008. On 25 July 2009 he saw a man from a business known to him moving machinery on lot 43. He observed a large excavator on tracks digging drains along the right of carriage way adjoining lot 42. He observed the machinery being collected on 9 August 2009. He attests to a conversation with Mr Thrush where he asked him if he had approval to put the road through the wetland.

1. Mr Larkin, Council officer, swore an affidavit dated 2 May 2011 and identifies trees endemic to SEPP 14 wetland in this area on lot 43. He identifies particular native trees in the photographs attached to Ms Alberry's affidavit.

1. Ms Doney's affidavit sworn 2 May 2011 annexes the relevant s 88B instrument imposing a right of carriage way on lot 43 in favour of lot 42. Also annexed is Sch 8 of the Conveyancing Act 1919 which identifies what that right encompasses.

Mr Thrush's evidence

1. Mr Thrush swore two affidavits dated 11 April 2011 and 28 April 2011. In his first affidavit Mr Thrush says he purchased lot 42 in 2006 after looking for some time for a bush block of land for his family to live on. Mr Thrush states the surface of the right of way started to deteriorate in 2007, making access to and from his property difficult. When he contacted the Council to find out what could be done about fixing it, an officer said words to the effect "it's your right of way". Mr Thrush took this to mean that he could do what was necessary to fix up and maintain the quality of the right of way so that he could have reasonable access to the property. He was not told that he needed to obtain development approval.

1. Mr Thrush identifies the work he carried out in relation to the right of way over Mr Gullotto's land in 2008. During January 2008, the right of way was in poor condition and continued to deteriorate. That month Mr Thrush purchased and received a load of gravel because he wanted to try to improve the quality of the surface and alleviate bogging. He conducted a small amount of maintenance work using his tractor but did not put any gravel on the track. Later that month he received a letter from Council in relation to that work. On 17 March 2008, Mr Thrush wrote to the Council in relation to his plans for the maintenance work he wanted to conduct. Ms Alberry inspected the right of way on 2 April 2008 and on 11 April 2008, Council wrote to Mr Thrush telling him to prepare a DA for the maintenance work. Mr Thrush prepared a DA and lodged it with Council but it was not processed because he did not have owner's consent from Mr Gullotto and was unable to obtain it. Mr Thrush was getting very frustrated at the lack of progress of the application and feedback from Council and made several phone calls to them. Afterward, Mr Thrush did immediate repairs to the right of way using the load of gravel delivered in January by placing the gravel on approximately 30m of track at the northern end of the right of way where the track was the most "churned up". Mr Thrush levelled the surface so that it was no higher than the surrounding natural ground level. On 23 May 2008 Council served on him a notice saying that they proposed to serve an order on him in relation to the maintenance work. Mr Thrush wrote back to Council on 4 June 2008 explaining his situation.

1. Around mid July 2009, while driving into his property on the right of way in an area where he had not been able to put some surface gravel, Mr Thrush's car got bogged and sank down to the axels and the bottom of the car was sitting on the track. Mr Thrush's car remained bogged for several days. He had to place bricks, dried concrete and some timber under the tyres of the vehicle. He had to get a salvage vehicle to tow him out. After the car was salvaged, Mr Thrush left the bricks, concrete and timber as they provided some more stable surface. The car was unusable.

1. As nothing had happened on his DA, Mr Thrush went ahead without development approval and carried out work on the right of way in July 2009 including on the SEPP 14 part of the track. The work identified is the excavation of a trench to place two pipes across the road. The pipes were 8m occupying 6m under the road and 1m on either side. He hired a mini- excavator and worked on a 300m section of the right of way. He excavated the swamp and mud from around the edge and placed it in the middle of the track to add a new surface as best he could without using gravel. This raised the height of the centre of the track surface by approximately 8cm but it was not any higher than the surrounding natural ground level. Mr Thrush also installed two 6m equalising pipes under the right of way track in an area where he thought there may have been a seasonal flow of water. About 1m of pipe was sticking out each side of the track. Mr Thrush has not done any maintenance work on the track since July 2009.

1. In September 2009, Mr Thrush prepared and lodged another DA upon the Council's request to avoid any more trouble with them. As part of the DA process he obtained an engineer's report and an acid sulphate report from environmental consultants. In order to pay for the reports Mr Thrush spent in excess of $25,000 including his available savings and additionally gave his tractor in part payment. Mr Thrush's solicitors at the time wrote to Mr Gullotto seeking owner's consent but he did not give it. Shortly afterward, Council said there were errors with the reports, he needed more consultant reports and wanted him to lodge an environmental impact statement. Mr Thrush made enquiries at various environmental consultants about obtaining the necessary reports and was told it would cost in excess of $80,000. Mr Thrush outlines his financial affairs and states that he is of very limited means. Mr Thrush's second affidavit responded to that of Mr Stubbs.

1. Mr Thrush was cross-examined by the Council's counsel. Mr Thrush says that no work was done in the SEPP 14 wetland part of the track in 2008. He knew he was doing work in the SEPP 14 wetland in 2009. He indicated on the plan (exhibit D) where he did work including excavation. He did not need to do this along the entire road as part had a crown. He disputes that any clearing of vegetation occurred in the SEPP 14 area. Any felling of trees took place outside this area along the right of way. He disputes that photographs identified by Ms Alberry (annexure Q to her affidavit) as depicting the SEPP 14 wetland area show that area.

1. Photographs taken of the right of way by Mr Thrush in March 2011 were tendered by him.

Mr Gullotto's affidavit

1. Mr Gullotto swore a lengthy affidavit dated 4 April 2011 which attaches all correspondence and sets out exchanges between him and Council officers relating to the work done on the right of way by Mr Thrush in 2008 and 2009. He states that he has never received notice from Mr Thrush of his intention to do work on the right of way. Mr Thrush's then solicitors wrote to Mr Gullotto asking him to consent to the DA by letter dated 23 September 2009. The DA and report were received about 20 November 2009. A further letter from the solicitors dated 27 November 2009 stated that if consent was not provided they would approach the Court for an order that he do so. Mr Gullotto considered the DA and the environmental consultant's report were inadequate.

1. Mr Gullotto tendered a bundle of documents extracted and copied from the Council's file. These include a report from an environment officer of the Council dated 4 February 2010 stating that the harm resulting from the track work in 2009 in relation to acid sulphate soils and loss of vegetation was localised only.

Council's submissions

1. Mr Thrush admits that he has carried out work without development consent contrary to the requirements of SEPP 14 cl 7. Mr Gullotto denies that he carried out any offending work on his own land. The evidence of Ms Alberry and Mr Gullotto establishes that trees were cut down in the SEPP 14 wetland area. Ms Alberry's oral evidence explained how she located the SEPP 14 wetland area on the right of way. A breach of cl 7(1)(a), clearing, has been established.

1. In relation to cl 7(1)(b), construction of levee, par 23 and 24 of Mr Thrush's first affidavit states that he excavated to locate and place two pipes across the track and undertook excavation work to raise the level of the roadway by 8cm by taking soil from the sides and building it up the middle of the road. The Macquarie Dictionary , 3rd ed (rev) (2001) Macquarie Library, meaning of levee is "an artificial embankment for preventing the overflowing of a river". The effect of the movement of soil by Mr Thrush is the creation of a levee. According to Mr Stubbs' affidavit at par 11 water is moving into his property as a result of the work done by Mr Thrush in 2008 and 2009.

1. In relation to cl 7(1)(c), drainage, it is Mr Thrush's evidence (affidavit and oral) that he dug the soil, placed two pipes and used a mini-excavator to dig into the right of way. This results in the draining of the SEPP 14 wetland according to the definition in the Macquarie Dictionary of drain as "that by which anything is drained, as a pipe or conduit".

1. In relation to cl 7(1)(d) placing of fill can encompass any change in the level of solid ground in the right of way. The Macquarie Dictionary definition of fill is "to build up with fill". Here Mr Thrush used mechanical means so that the soil is moved to raise the area, which is the filling of land.

1. The s 88B instrument creating a right of carriage way over lot 43 in favour of lot 42 does not include a right to maintain as this is not included in the definition in Sch 8 of the Conveyancing Act, which is referred to in s 181A, unlike a right to access which does include this right.

1. If Mr Thrush has existing use rights these would not permit the scope of works undertaken as these are an intensification of that use. If Mr Thrush has common law rights as the beneficiary of a right of way to repair or maintain that right of way that right does not encompass the scope of works undertaken here and is subject to the statutory limits found in SEPP 14.

1. Mr Gullotto as landowner should be ordered to do the restoration work in the alternative if Mr Thrush cannot. If he did not want Mr Thrush to do the work on lot 43 he could have sued him for trespass.

Mr Thrush's submissions

1. In the defence filed by Mr Thrush's then solicitor and at the hearing, Mr Thrush submits that he has carried out essential maintenance to enable the continued use of the right of way he has legally over lot 43. He believed he had existing use rights based on the statement in a letter from a Council officer to Mr Gullotto dated 25 June 2008 which confirmed his right to maintain the right of way. A statement made by the Assistant Director, Regional Projects of the Department of Planning in a letter to Mr Thrush dated 2 March 2010 that right of carriage way areas "are, as a general rule, maintained where necessary under existing use rights and right of access", was also relied on. He did not cut down any trees in the SEPP 14 area of the right of way. The photographs of trees cut down attached to Ms Alberry's affidavit are not of the SEPP 14 area of the right of way. He admits that he dug two trenches and placed two pipes across the road. He also took soil from the side of the road and built up the middle of the road. This was essential maintenance and improved the environmental impact of the right of way by substantially reducing its width to 4m from 40m in some areas.

1. Based on the restoration plan prepared by Dex Consulting dated January 2010 at the request of Mr Thrush, there has not been any change in the level of the middle of the road to render this higher than the adjacent land. Reference to the table showing the differences in level proposed to that at the side of the road was submitted to demonstrate this. Photographs taken in March 2011 by Mr Thrush were also relied on to show that the work undertaken was minimal and had little environmental impact. His actions have reduced the width of the track substantially, reducing the amount of vegetation loss and left the track in a reasonable state. There is no evidence that the wetland has suffered ill effects as a result of the work undertaken. No levee has been constructed.

1. Mr Thrush has very limited means, substantial debts owing and spent all his available savings on the consultants' reports that he has already obtained to try to satisfy the Council and obtain development consent for work on the access track, unsuccessfully to date. He has no funds to spend on additional consultants' reports or anything else. He estimates he would need a very substantial time of many years to pay for further reports and do any work.

Mr Gullotto's submissions

1. Mr Gullotto submitted that no orders should be made against him as he had no role in the work undertaken by Mr Thrush. The work was carried out without his knowledge or consent and without any notice to him. He has consistently stated that he would give owner's consent to a DA that complies with the relevant Council rules and regulations but none has been submitted by Mr Thrush.

Consideration

1. The Council seeks declarations that Mr Thrush has carried out specified work without development consent. The orders sought by the Council require a DA and restoration plan to be lodged by Mr Thrush or Mr Gullotto in the alternative. The work once approved is to be carried out in a specified time frame. Clause 7 of SEPP 14 specifies that clearing, constructing a levee, draining or filling of land to which the policy applies requires the consent of a council and the concurrence of the Director of Planning. A failure to comply with SEPP 14 is a breach of the EPA Act under s 125 of that Act. The Court's wide powers to remedy or restrain a breach are identified in s 124.

1. By virtue of cl 5 SEPP 14, restoration work is not designated development. Under cl 7A of SEPP 14, development consent from the Council and concurrence of the Director is required for restoration works. If an upgrade of the right of way was to be sought, which will inevitably involve at least one of the activities specified in cl 7(1)(a) - (d) then the development will be designated development under cl 7(3) of SEPP 14. It will require an environmental impact statement and will have to comply with the other requirements for that class of development specified in the EPA Act.

Breach of SEPP 14

1. I must identify whether there is a breach of SEPP 14 as a result of the work undertaken by Mr Thrush in July 2009 in the area of SEPP 14 wetland on the right of way on lot 43. If there is, I must then determine in the exercise of my discretion in these civil enforcement proceedings whether or not I should make the declarations and orders sought by the Council or some other order(s). I must also consider Mr Gullotto's cross-claim.

1. Mr Thrush submitted, relying on existing use rights, that he did not need development consent for maintenance work on the right of way and that is the nature of the work he has undertaken. Mr Thrush relies on existing use rights to justify the maintenance of the road, relying on a statement in the letter from the Council dated 25 June 2008 and a letter from the Department of Planning dated 2 March 2010. No basis for claiming existing use rights apart from the Council letter and the Department of Planning letter was provided. It is unclear if Mr Thrush has such rights. I also note that the work carried out by Mr Thrush in 2008 on the right of way over lot 43 was not in the SEPP 14 area according to him.

1. The Council submitted that a right of carriage way does not include a right to maintain. In terms of the Conveyancing Act, Sch 8 Construction of certain expressions, referred to in s 181A, Pt 1 Right of carriage way, that is correct. Unlike a right of access (Sch 8 Pt 14) there is no specific right to maintain within the definition of a right of carriage way in Sch 8.

1. It seems to me the issue arises of whether Mr Thrush as the beneficiary of a right of way has rights under general property law to maintain it. A brief consideration of A Bradbrook and M Neave, Easements and Restrictive Covenants in Australia , 2nd ed (2000) Butterworths, Ch 6 Rights of Way at [6.38] and [6.41] refers to the duty to repair a right of way falling on a grantee. The Planning and Development Service (NSW) , Lawbook Co, Sydney, 1980 to date (looseleaf at Update 224, April 2011), "Planning and Assessment" at [E759.1.1] refers to cases where owners have been ordered to provide owner's consent for work on a right of way. Both Kirkjian v Tower (Waddell CJ in Eq, 6 July 1987, unreported) and 117 York Street Pty Ltd v Proprietors of Strata Plan No 16123 (1998) 43 NSWLR 504 concerned a DA to do work on a right of way where the Court ordered the landowner to give owner's consent to the DA. Such cases suggest that a right to maintain a right of way may be founded in general property law. No submission beyond relying on the letters from the Council and the Department of Planning was made by Mr Thrush concerning whether he has common law rights under general property law to maintain his right of way. No criticism is intended by this observation, but I consider that if Mr Thrush were legally represented a more substantial submission seeking to rely on such rights would be made. I am not in a position to resolve this issue definitively and it has not been directly raised before me but I observe that without an ability to maintain a right of way it could be rendered worthless, as Mr Thrush essentially submits.

1. In any event, the Council argues that what was done went beyond what could be expected as simple (de minimis) maintenance allowable under general property law rights, accepting for the purpose of this submission that such a right exists, or existing use rights if these exist, and required development consent by virtue of SEPP 14 cl 7. If the work done was more than de minimis, that submission is correct.

1. The Council bears the onus of establishing on the balance of probabilities that there has been a breach of SEPP 14. The work undertaken by Mr Thrush in July 2009 along the right of way was within the SEPP 14 wetland on the right of way track. Mr Thrush identifies the nature of the work undertaken by him in the SEPP 14 wetland area in his first affidavit set out above at par 16. The Council largely relies on that evidence as establishing a breach of cl 7(1)(b), (c) and (d) in relation to the construction of a levee, draining and filling of a SEPP 14 wetland. The Council and Mr Thrush agreed the SEPP 14 area was about 120m in length. Ms Alberry referred to the 25m margin which should be allowed along the SEPP 14 boundary as identified on the official plan, which Mr Thrush was unaware of.

1. Mr Thrush disputes that he cleared vegetation in the SEPP 14 area in breach of cl 7(1)(a). Clearing is defined in cl 4. Native vegetation is also defined. Trees cleared which meet the description of native vegetation in SEPP 14 are identified in photographs attached to Ms Alberry's affidavit by Mr Larkin, Council officer. The issue is whether these cleared trees are in the SEPP 14 wetland area along the right of way. Mr Thrush disputed that photographs taken by Ms Alberry were of the SEPP 14 area of the track. The photographs included photographs of three pipes on the ground. Mr Thrush identified where three pipes were lying on the ground in exhibit D, the DEX Consulting restoration plan. These are well clear of the SEPP 14 wetland as depicted on the DEX Consulting restoration plan. Ms Alberry's evidence was that these were in the SEPP 14 wetland area. Mr Thrush is well familiar with the track on the right of way and appeared to have an excellent appreciation of where the SEPP 14 wetland area is located. Even allowing for a 25m buffer along the boundary I do not consider that the Council has established that the photographs showing trees knocked over are in the SEPP 14 wetland area of the right of way. It has not proved this element of its case against Mr Thrush.

1. The Council relied on a broad dictionary definition of levee to argue that building up the middle of the road resulting in redirection of water was construction of a levee, as referred to in cl 7(1)(b). The unconfined words in cl 7(1)(b) in the context of SEPP 14 support the application of such a broad definition. According to Mr Thrush's affidavit he built up the centre of the road by 8cm to provide for water to run off. He did not consider this was any higher than the surrounding natural ground level. He sought to establish this by referring to levels in a table prepared as part of the DEX Consulting restoration plan lodged with the Council which identified levels at the side of the road to that proposed as part of the restoration plan. Whether that can demonstrate what Mr Thrush submits is not clear but in any event the onus lies on the Council to demonstrate that there is redirection of water occurring as a result of what was done in July 2009. The evidence of the neighbour Mr Stubbs is not conclusive on this matter in that he refers to water coming onto his property as a result of work done in 2008 and 2009. Building up of the road surface in the manner attested to by Mr Thrush can constitute construction of a levee as it was intended by him to redirect water from that part of the road. The extent to which this was actually achieved is unclear on the evidence. The Council has established, just, a breach of SEPP 14 as the work undertaken was more than minimal, suggesting it required development consent.

1. In relation to cl 7(1)(c), given that Mr Thrush installed two pipes with the aim of draining water under the track in the SEPP 14 wetland that sub-section applies. The work done was more than minimal and required development consent.

1. The Council also argued there was filling of land because the redistribution of soil from the edge of the road to the middle results in a change in the level of solid ground so that the ground is built up with fill, in breach of cl 7(1)(d). While I consider filling of land is usually understood to mean the introduction of fill onto land for the purposes of filling it in rather than building it up, the phrase "the filling of land" is unlimited in its terms and can theoretically include the action of placing soil on land to build it up. I am not convinced however that the same act of building a levee, which I have held occurred, is also the filling of land. No breach of cl 7(1)(d) is established by the Council.

Exercise of discretion to make declarations and orders

1. This Court has broad discretion in determining whether the relief sought ought be granted and in what form where a breach of the EPA Act is established. The wide discretion of the Court has been recognised in cases such as F Hannan Pty Ltd v Electricity Commission (NSW) (No 3) (1985) 66 LGRA 306 at 313. In Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Kirby P (as he then was) identified a number of principles to take into account at 339 - 341. The principles emphasise, inter alia, the wide nature of the discretion and the importance of upholding public laws as follows:

Because s 123 of the Act permits any person (and not just the Attorney-General or a person with a sufficient interest), to bring proceedings in the Court for an order to remedy or restrain a breach of the Act, there is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured.

...

Where the application for the enforcement of the Act is made by the Attorney-General, or a council, a court may be less likely to deny equitable relief than it would in litigation between private citizens: Associated Minerals Consolidated Ltd v Wyong Shire Council (at 692). This is because the Attorney-General or the Council are seen as the proper guardians of public rights. Their interest is deemed to be protective and beneficial, not private or pecuniary: cf Rowley v New South Wales Leather Trading Co Pty Ltd v Woollahra Municipal Council (1980) 46 LGRA 250. Of course, as the development or administrative law demonstrates, administrators who advise the Attorney-General or councils can sometimes act from motives which are less disinterested. Courts will be alert to insensitive, unthinking administration in this as in other fields of law.

1. In ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 Kirby P at 82D stated that discretion permits the refusal of relief if granting it would work an injustice disproportionate to securing enforcement of the legislation.

1. In Sedevcic Kirby P at 340F set out several guidelines for the exercise of discretion to the effect that discretion can be more readily exercised where the breach is more easily remedied than for, say, a static structure that requires demolition. Ultimately Kirby P recognised as relevant to the judicial perception of the need to balance the public interest in compliance with the law with the degree of irremediability arising from a breach (340F).

1. There are a number of factors which should be weighed up given the circumstances of this case. A breach of SEPP 14 has been established and SEPP 14 is directed to the protection of important wetlands. Upholding planning laws is an important consideration particularly to ensure a level playing field for all members of the community.

1. A number of subjective factors must also be considered given the situation of Mr Thrush. Mr Thrush has only one access route to lot 42 across lot 43 which deteriorated substantially in 2006 and 2007. He has acted under the misapprehension that he could do the work of maintaining a passable track without requiring development consent under SEPP 14.

1. Clause 49(1)(b) of the Environmental Planning and Assessment Regulation 2000 states that a DA can be made with consent of the land owner, identifying that owner's consent for a DA is required. This would generally be provided upfront on the DA form lodged with the Council at the outset. Mr Gullotto's defence states that he was asked to give owner's consent by Mr Thrush for DAs dated 23 November 2009 and 3 March 2010 but these were incomplete. Mr Thrush refers in his affidavit to seeking development consent from Mr Gullotto for a DA in April 2008. The Council in a letter dated 4 September 2009 wrote to Mr Gullotto to say that owner's consent would be needed for the DA Mr Thrush must lodge in relation to restoration works. Mr Gullotto has never provided owner's consent.

1. Mr Gullotto appears to have acted under a misapprehension that he could and should withhold owner's consent until the Council had formed the view that a particular DA met its requirements. Whether a DA meets the Council's requirements is a matter for the Council and not the owner of the property the subject of the DA. The cases of Kirkjian and 117 York in the Planning and Development Service (NSW) cited above at par 38 suggest that an owner of land over which a right of way is held should provide owner's consent for a DA which reasonably relates to maintaining that right of way and if not that a court is likely to so order. Mr Gullotto's misapprehension has in part resulted in Mr Thrush not having before the Council a DA which meets all the legal requirements of the EPA Act.

1. Mr Thrush's desire to maintain a trafficable access is understandable in the circumstances outlined in the first affidavit given his inability to get owner's consent from Mr Gullotto for the DA lodged with the Council in 2008 and since.

1. Mr Thrush did not help his position by failing to notify Mr Gullotto of his intentions before he conducted work on lot 43. Nor do I consider Mr Gullotto should be expected to sue Mr Thrush for trespass in order to avoid an order being made that Mr Gullotto do the work on the right of way.

1. It is also necessary to consider the overall circumstances in which Mr Thrush finds himself. The Council is seeking orders which it hopes will result in the restoration of the SEPP 14 wetland and that is the sole goal of this application, an understandable position on the Council's part. Restoration of the SEPP 14 wetland will not necessarily result in Mr Thrush having useable access across lot 43. For Mr Thrush to upgrade the road will require a designated development DA with all that entails in order to comply with the EPA Act. Mr Thrush is of very limited financial means, has no money to spend now and is unlikely to for a considerable period.

1. Also relevant to consider is the extent and scale of the works undertaken. While I have found there is a breach of cl 7(1)(b) and (c) of SEPP 14 and that the works are not minimal, nor are they substantial, taking only a couple of days to carry out. Their relatively modest scale is highly relevant to consider.

1. The extent of environmental harm is also a matter to be weighed up in relation to the making of orders. A minute from a senior natural resources officer of the Council dated 4 February 2010 states his view based on one site visit that there was minimal local and/or off-site environmental impacts caused by acidity generated from the site. In relation to the elevated thoroughfare he considered the situation would probably have an impact on water movement from a west to east direction in low, minor or at the tail end of high flow events. This is not conclusive evidence of environmental harm being more than minimal and localised.

1. The Council has relied on the affidavit of Mr Stubbs where he states there is water flowing onto his property as a result of the work done on lot 43 by Mr Thrush in 2008 and 2009. The work in 2008 was not on the SEPP 14 area of the right of way. The SEPP 14 area is approximately 120m of the access track on lot 43. This appears to be about a third of the distance of the right of way on lot 43. Work beyond the SEPP 14 area was carried out by Mr Thrush in 2009. Whether there is much or any impact from the 2009 work in the SEPP 14 wetland area carried out by Mr Thrush is not demonstrated by this evidence.

1. In light of these numerous factors, I am not minded to exercise my discretion to make orders requiring the lodgement of a DA for restoration by either Mr Thrush or Mr Gullotto or to order that the work be done once approved. The issue therefore arises of whether I should make bare declarations as that is the remainder of the relief sought by the Council. The Court has discretion whether it should make these. Whether the Court should make bare declarations was considered in Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1 at [19] - [26] and useful principles are outlined there including absence of practical effect and caution in making declarations in civil enforcement proceedings which could be brought as criminal proceedings. Given that this is not an egregious breach of the EPA Act, arises through unfortunate circumstances and the declarations if made will be disproportionate given the actions of Mr Thrush, I consider I should not make these. I have made findings of a breach of the EPA Act in this judgment, a public document, which will suffice on this occasion.

1. For the same reasons I decline to make the declaration and orders sought in the cross-claim filed by Mr Gullotto.

Orders

1.   Costs are reserved.

2.   Exhibits to be returned.

Decision last updated: 30 May 2011