Lismore City Council v Ihalainen (No 2)

[2014] NSWLEC 198

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Lismore City Council v Ihalainen (No 2) [2014] NSWLEC 198
Hearing dates:	24, 25, 26, 27, 28 November 2014, 1, 2, 3, 4, 18 December 2014
Decision date:	31 December 2014
Jurisdiction:	Class 5
Before:	Biscoe J
Decision:	Both proceedings are dismissed.
Catchwords:	ENVIRONMENTAL OFFENCES - three charges of offences against s 125 Environmental Planning and Assessment Act 1979 of carrying out development on a rural property the subject of a development consent other than in accordance with the consent - one charge under s 120 of the Protection of Environment Operations Act 1997 of polluting waters by introducing soil into a natural watercourse - all charges relate to construction of a fire trail required by a condition of the consent - whether a condition of the consent required sediment control measures to be put in place prior to construction of the fire trail - whether the consent required alignment of the fire trail as shown on a site plan - whether the site plan was enclosed with and incorporated in the consent as an approved plan - whether a condition of the consent requiring the fire trail to comply with Section 4.3.3 Planning for Bushfire Protection 2001 required, during the construction of the fire trail, the installation and maintenance of appropriate drainage and erosion controls, that the fire trail be maintained in a serviceable condition by the owner of the land, and whether it must be trafficable in all weather conditions-whether the defendant polluted the waters of a Creek by causing sediment-laden stormwater runoff from the fire trail construction to enter the waters of a creek so as to change the physical condition of those waters.
Legislation Cited:	Environmental Planning and Assessment Act 1979 ss 4, 76A(1)(b), 80(1),109E(3)(d), 125 Interpretation Act 1987 ss 5(2), 35 Local Government Act 1993 Protection of the Environment Operations Act 1997 ss 3(a), 3(d), 116, 120, 257, 258(1), Dictionary Environmental Planning and Assessment Regulation 2000 cl 162A(4)
Cases Cited:	Allandale Blue Metal Pty Ltd v Road and Maritime Services [2013] NSWCA 103, (2013) 195 LGERA 182 Auburn Municipal Council v Szabo (1971) 67 LGRA 427 Baulkham Hills Shire Council v Ko-Veda Holiday Park Estate Ltd [2009] NSWCA 160, (2009) 167 LGERA 395 Beckwith v R [1976] HCA 55, (1976) 135 CLR 569 Campbell v The Queen [1981] WAR 286, (1980) 2 A Crim R 157 Cann’s Pty Ltd v Commonwealth (1946) 71 [1946] HCA 5, (1946) CLR 210 Cittadini v R [2009] NSWCCA 302 Deming No 456 Pty Ltd v Brisbane Unit Development Corp Pty Ltd [1983] HCA 44, (1983) 155 CLR 129 Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 Environment Protection Authority v Moolarben Coal Operations Pty Ltd [2012] NSWLEC 65 Environment Protection Authority v Moolarben Coal Operations Pty Ltd (No 2) [2012] NSWLEC 80 Environment Protection Authority v Munters Pty Ltd (1997) 98 LGERA 279 Environment Protection Authority v Ravensworth Operations Pty Ltd [2012] NSWLEC 222 King Gee Clothing Company Pty Ltd v Commonwealth [1945] HCA 23, (1945) 71 CLR 184 Lismore City Council v Ihalainen [2013] NSWLEC 149 North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169 Royall v The Queen [1991] HCA 27, (1991) 172 CLR 378 Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 Samad v District Court of New South Wales [2000] NSWCA 344, (2000) 50 NSWLR 270 Scott v Causey [1907] HCA 80, (1907) 5 CLR 132 Stebbins v Lismore City Council (1988) 64 LGRA 132 Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 Waugh v Kippen [1986] HCA 12, (1986) 160 CLR 156 Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 Winn v Director-General of National parks and Wildlife [2001] NSWCA 17, (2001) 130 LGERA 508
Texts Cited:	ANZECC, Australian Guidelines for Water Quality Monitoring and Reporting (2000) Chapter 4 Australian Oxford Dictionary (Oxford University Press, 1988) Landcom, Managing Urban Stormwater, Soils Construction (rev. 4th ed, 2006) NSW Rural Fire Service, Planning for Bushfire Protection (2001) Section 4.3 Pearce and Geddes, Statutory Interpretation in Australia (LexisNexis, 8th ed, 2014) [1.39], [4.56]-[4.57] The Macquarie Dictionary (Macquarie Library, 3rd ed, 1997)
Category:	Principal judgment
Parties:	Lismore City Council (Prosecutor) Jari Tapani Ihalainen (Defendant)
Representation:	COUNSEL: I Lloyd QC and S Nash (Prosecutor) T Howard SC (Defendant) SOLICITORS: McCartney Young (Prosecutor) Mallik Rees (Defendant)
File Number(s):	50172/13, 50173/13

Judgment

TABLE OF CONTENTS

Paragraphs

INTRODUCTION

BACKGROUND

EPA ACT CHARGES

EPA Act charge 2: condition 9

EPA Act charge 3: alignment of the fire trail

EPA Act charge 4: condition 13(i)

POEO ACT CHARGE: WATER POLLUTION

ORDERS 

1-11

12-48

49-127

59-84

85-118

119-127

128-183

184

INTRODUCTION

1. The defendant, Mr Jari Ihalainen, has pleaded not guilty to three charges of offences against s 125 of the Environmental Planning and Assessment Act 1979 (EPA Act) in that he carried out development on a 60 hectare rural property at 27 Town Road, Terania Creek, NSW (the Property) being development the subject of a 2008 development consent (the Consent) otherwise than in accordance with the Consent, contrary to s 76A(1)(b).

1. The three contested EPA Act charges are:

(a)   breach of condition 9 of the Consent by failing to install sediment controls in accordance with the Consent prior to commencing construction of an unsealed fire trail on the Property;

(b)   failing to construct the fire trail in accordance with the alignment shown for the "secondary driveway access" shown on a site plan (the Site Plan) alleged by the prosecutor to have been enclosed with and incorporated in the Consent. The defendant contends that the prosecutor has not proved that it was enclosed and incorporated.

(c) breach of condition 13(i) of the Consent by failing to construct the fire trail so that it complied with Section 4.3.3 Planning for Bushfire Protection 2001, between 28 March and 4 December 2012, in that he allegedly -

(i)   failed to install and maintain appropriate drainage and erosion controls;

(ii)   failed to construct and maintain the fire trail in a serviceable condition; and

(iii)   failed to construct and maintain the fire trail so as to ensure that it was trafficable in all weather conditions.

1. The defendant has also pleaded not guilty to a charge in a related separate proceeding that he committed an offence against s 120 of the Protection of the Environment Operations Act 1997 (POEO Act) in that he polluted waters on 27 June 2012 by introducing soil onto an unnamed natural watercourse (the Creek) on the Property so as to change the physical, chemical and biological condition of the waters of the Creek. This is alleged to have occurred when soil-laden stormwater from the fire trail that was under construction on the Property entered the Creek.

1. Annexed hereto and marked as follows are:

"A" a copy of the Consent, without any plans that might be incorporated therein (an issue that I have to determine)

"B" the Site Plan

1. The Consent is addressed to the defendant and his partner as the applicants "in respect of development application No 2005/842" for a "Dwelling". The Consent is undated but expressed to operate from 20 June 2008.

1. The Property is owned by the defendant and his partner. It is relatively undisturbed grazing land. With an area of about 60 hectares and a roughly rectangular shape, the Property runs downhill for much of the distance of approximately 1200 metres from Wallace Road in the west to Town Road in the east. The Creek is closer to Town Road and is a tributary of Terania Creek about a kilometre to the south.

1. The charges all relate to the construction of an unsealed fire trail, sometimes referred to in evidence as a secondary access road, on the Property from Town Road to the location of the proposed dwelling. The construction of the fire trail is alleged to be part of the "development" the subject of the EPA charges.

1. The fire trail is required by condition 13 of the Consent, which states the reason for condition 13 as: "To comply with the requirements of the Rural Fire Service". Condition 13(d) requires access to the rear of the Property "for fire fighting purposes". Condition 13(i) refers to this as "proposed alternative emergency access" and requires it to comply with Section 4.3.3 Planning for Bushfire Protection 2001.

1. In addition, condition 10 requires "vehicle access to the land, being the section of driveway across the public road reserve", suggesting primary access from Wallace Road to the location of the proposed dwelling.

1. In 2013 in these proceedings the Council charged the defendant with a large number of offences related to the construction of the fire trail under the EPA Act and the POEO Act. The defendant pleaded not guilty. Most of the charges were dismissed or withdrawn by consent before or at the commencement of the trial, or pursuant to orders of the Court before trial in Lismore City Council v Ihalainen [2013] NSWLEC 149 where Pain J held that the second clean-up notice of 9 July 2012 was invalid. Related proceedings against the defendant's partner were dismissed by consent at the commencement of the trial.

1. The surviving charges against the defendant are in two proceedings that have been heard together, one relating to the three EPA Act charges and the other relating to the single POEO Act charge.

BACKGROUND

1. In addition to the 2008 Consent, on 14 March 2011 the Council granted a "deferred commencement" consent to a development application lodged by the defendant in 2009 (the 2011 consent). The 2011 consent was for the use of the Property as a rural landsharing community comprising eight dwellings, associated internal vehicular access and tree removal. The 2011 consent is not the subject of these proceedings, but I will have occasion to refer to it in more detail when considering the EPA Act alignment charge.

1. On 28 March 2012 the defendant through a contractor, and under the defendant's supervision, commenced constructing the fire trail and the primary access. At that time no sediment control fences had been installed. By 22 May 2012 the contractor had finalised most of the primary shaping, filling and placement of the fire trail. Sediment control fences were installed on and after that date.

1. On 22 May 2012 - and again on 24 May, 27 June, 6 July, 30 July and 4 December 2012 - a Council development compliance officer, Mr Graeme Bailey, inspected the Property. He caused the issue of Council clean-up notices under s 91 of the POEO Act on 24 May and 9 July 2012, show cause notices in relation to ss 76A and 125 of the EPA Act on 7 June and 26 July 2012, and a large number of other statutory notices under both Acts and the Local Government Act 1993.

1. Mr Bailey, the Council's principal investigator in this matter, gave factual evidence as to his investigations. He also gave opinion evidence as an expert in sediment and erosion control. Mr Bailey's affidavits of 5 March 2013 and 11 November 2014 were read. In cross-examination it emerged that he had sworn two earlier versions of the 5 March 2013 affidavit, one on 10 December 2012 the other on 15 February 2013. The defendant cross-examined on and criticised some differences between these and the 5 March 2013 affidavit.

1. At his initial inspection of the Property on 22 May 2012, Mr Bailey drove the length of the fire trail, which was still under construction, from Town Road westward to the new dwelling location. He observed extensive excavation works being carried out on the side of a steep escarpment and an excavator and tip trucks working on construction of the fire trail. He noticed that no sediment and erosion controls had been installed at any location. He took photographs. He left his business card with the defendant's partner at the shed on the property and asked her to have the defendant call him.

1. Next morning, 23 May 2012, Mr Bailey received a message to call the defendant, which he did. The defendant said he was constructing a fire access track. Mr Bailey asked whether he had any Council approvals to do the work. The defendant said he had DA 05/842 (ie the Consent) for a new house at the top of his property and as part of that consent he was required to construct a fire access track. Mr Bailey said that he was concerned that there were no sediment and erosion controls. The defendant said he had been overseeing the works and did not think they were required now as the weather had been fine. Mr Bailey said the controls should be in place at all times whether it was raining or not. Mr Bailey requested the defendant to stop the construction works and concentrate on installing the sediment and erosion controls. The defendant agreed and said he would get the sediment and erosion controls in place by the following afternoon. Mr Bailey said that the Council would be sending the defendant some correspondence in relation to the matter and would be out to ensure the controls are constructed.

1. On 24 May 2012 Mr Bailey attended the Property for a second time. He was accompanied by a Council environmental compliance officer, Mr Stuart Thomson. Mr Bailey told the defendant that he was there to inspect the installation of the erosion and sediment controls and to give him a clean-up notice under the POEO Act, which he did. After giving the defendant a short explanation of the clean-up notice, Mr Bailey told him that Council takes very seriously such matters, that it was possible he would be issued with a penalty infringement notice with respect to any offence that has occurred, and Council would likely issue him with a notice to show cause as to why further enforcement action should not be taken. Mr Bailey said he knew there were two consents and asked which one the defendant considered he was operating on. The defendant said it was consent DA 2005/842 (ie the Consent).

1. The clean-up notice is dated 24 May 2012 and signed by Mr Bailey. It directed the defendant and his partner to:

1. Immediately install appropriate and effective sediment and erosion controls along the entire length of the access track being constructed between the property entry point located at Wallace Road and the property entry point located on Town Road. The temporary sediment and erosion controls are to be installed and maintained to a standard to prevent the transport of sediment from the premises onto adjoining lands, drainage lines and watercourses from the construction works.

2. Provide a sediment and erosion control plan, which is completed by a suitably qualified person, that details the measure already completed and required to be undertaken to prevent the transport of sediment from the premises onto adjoining lands, drainage lines and watercourses from the construction works. A maintenance schedule should also be included which details an ongoing maintenance program. This plan is to be submitted to Council within seven (7) days of the date hereon.

3. Provide certification from a suitably qualified person, that all of the requirements as detailed within the above sediment and erosion control plan have been undertaken. This Certification is to be provided within fourteen (14) days of the date hereon.

Fee to be paid

You are required by law to pay a fee of $455 for the administrative costs of issuing this notice.

It is an offence not to pay this fee...

1. Mr Bailey and Mr Thomson then inspected the fire trail. Mr Bailey saw people installing sediment control fences within the lower section of the Property from the Creek westerly towards the top of the hill. He said in evidence that it appeared to him that the sediment and erosion control fences were not being installed in a proper manner and would not conform to any recognised standards, by which he meant section D7 of the Northern Rivers Local Government Development and Design Manual and the reference documents referred to within Council's "Guidelines for the control of soil erosion and sediment on building and development sites". Mr Bailey said in evidence that he considered the sediment and erosion control measures being installed would not be effective longer term solutions; and that even as temporary measures they were not adequate to prevent soil erosion and sediment from entering the nearby watercourse. The majority of the road works remained unprotected. He took photos that show sediment fences, as well as pipes that had not yet been installed.

1. On 24 May 2012 Mr Bailey told the defendant's contractor, Mr Stewart, that he had served the defendant with a clean-up notice requiring immediate installation of appropriate sedimentation and erosion controls along the entire road and a sediment and erosion control plan be prepared by an appropriate qualified consultant.

1. On 25 May (Friday) and 28 May 2012 more silt fences were installed.

1. 28 May 2012 was the last day that the contractor, Mr Stewart, worked on the Property.

1. On 28 May 2012 the defendant emailed Mr Bailey seeking a list of consultants for preparation of a soil erosion plan. The next day Mr Bailey emailed a list of consultants to the defendant.

1. A sediment and erosion control plan was prepared for the defendant by Orchard Floor Protection Service (the Orchard report) per Daryl Firth dated 31 May 2012. The defendant emailed it to Mr Bailey that day. In the email the defendant said that the erosion control measures and in particular installation of pipes and sand bags will continue over the weekend and requested Mr Bailey to let him know if he had any queries about the Orchard report.

1. The Orchard report stated that its main objective was to determine if the drainage associated with the property access road has the appropriate design and capacity to minimise erosion and sediment load impacts on the surrounding land and stream network. It included provision for pipes to control stormwater runoff and divert it from the disturbed area of the fire trail alignment to grassed slopes which would act as a buffer by providing filter areas. The Orchard report included the following statements:

Concrete pipes are on-site at points of installation and are of sufficient capacity (37cm diameter), and appropriately placed at intervals to capture up-slope runoff. Pipes are located at approx. 10 points along the construction to divert runoff water under the road to safe discharge areas. Discharge will be directed onto grassed slopes that will act as a buffer and sediment trap, and are located at least 50m form the main water course at their nearest point.

Silt fences have been constructed where major excavation has taken place and where there is unconsolidated earth near drain discharge points.

...

Sand bags should be placed at intervals in the drain base to assist drain stability whilst vegetation is establishing. One or two bags could be placed at 20-30m intervals on low gradients, down to 10m intervals on steeper gradients. The sandbags should be maintained until a layer of gabion rock is placed in the base of open-edge drains in the steeper sections of the construction where runoff velocity will be highest.

1. In the penultimate paragraph of an email dated 1 June 2012 Mr Bailey (among other things) stated that Council "requires" the defendant to cease all construction and earthworks activities, including the installation of pipes that the defendant was about to install crossing under the fire trail, "until further notice" (the stop work notice). The email was in the following terms:

Council considers the sediment and erosion control plan which you have submitted has insufficient details within it to address the immediate control of sediment which may result from the works already undertaken.

Council is therefore requesting more detailed sediment and erosion control plans be provided which details the sediment and erosion control works already completed and those which are required to ensure best practice is achieved.

In relation to the diagram on the rear of the current plan, Council is concerned that additional problems may be created if the installation of identified pipes is undertaken. Council is of the opinion that more detailed engineering plans are required prior to any other earthworks being undertaken.

Council therefore requires you to cease all construction and earthworks activities, including the installation of the said pipes until further notice.

You are advised to address the sediment and erosion controls required for the current construction works which have been undertaken to date.

(emphasis added)

1. Mr Bailey in oral evidence contended that his express requirement in the stop work notice to cease all construction and earthwork activities was merely a request. I do not accept the contention. He used the word "requires" and it is unequivocal. In obedience to the stop work notice, the pipes were not installed and construction of the fire trail has not been completed.

1. However, the last paragraph of the stop work notice indicated that sediment control fences were not the subject of the stop work requirement in the penultimate paragraph and that the defendant should address them - which in fact he did, thereby indicating that he understood it in this way. I do not accept the view of the defendant's expert, Mr McVey, that removal of sediment from, and maintenance of, sediment control fences were caught by the stop work requirement in the penultimate paragraph.

1. On about 1 June 2012 the defendant instructed his contractor Mr Stewart to stop all work while the defendant organised a drainage and erosion control plan, and told him Council had issued a stop work notice.

1. On 1 June 2012 the defendant emailed Mr Bailey that Daryl Firth (of Orchard Floor Protection Service) may contact Mr Bailey to discuss his report and revise it to comply with Mr Bailey's requirements. The defendant told him that he had Tricend Design and Engineering coming on Wednesday to provide design for the installation of the pipes and drainage.

1. On 4 June 2012 the defendant sent Mr Bailey four plans showing the locations of silt fences already installed and additional silt fences that were to be installed that day. The plans were engineering marked up aerial photographs. He requested Mr Bailey to advise if this had sufficient detail. Mr Bailey did not respond. Mr Bailey gave evidence that he believed these plans did not address the necessary issues on large sections of the fire trail.

1. On 8 June 2012, Mr Bailey emailed to the defendant and his partner a show cause notice dated 7 June 2012 under ss 76A and 125 of the EPA Act. The email asked the defendant to provide an update on the progress of sediment control works. It concluded: "I am still waiting on a response from Council's environmental manager in relation to the last details you provided me. I will advise when available". Mr Bailey never did provide the defendant with such advice.

1. The show cause notice recited that a recent inspection had revealed that earthworks (an access road) had been undertaken between Town Road and Wallace Road being a distance of approximately 1200 metres, and had given rise to potential for contamination of the premises and surrounding waterways as sediment and erosion control measures were not in place. It recited that a clean-up notice under the POEO Act was issued to address sediment and erosion control issues which was a separate compliance matter; and that Council considered the earthworks to have been undertaken in contravention of s 76A of the EPA Act as the works had either been undertaken without the prior consent of Council or in contravention of a development notice. The show cause notice required the recipients to show cause within seven days as to why Council should not take further action. It required them to:

(a)   nominate which development consent they considered they were operating under, being the Consent or the 2011 consent, and any reasons they considered justified their decision to undertake the earthworks;

(b)   Provide evidence to confirm activation of the Consent had taken place and the date activation commenced.

1. On 8 June 2012, the defendant emailed Mr Bailey that all sediment measures were in place except sand bagging and he required the stop work notice to be lifted to install these. Mr Bailey did not reply. Consequently, sand bags were not installed.

1. On 12 June 2012 the defendant emailed Mr Bailey saying that the engineering design for the drainage should be submitted to Council tomorrow and that he needed to recommence the works ASAP, in particular pipe installation and cleaning up batters etc to allow revegetation to commence.

1. On 21 June 2012 the defendant's engineering consultant, Mr Kennedy, a principal of Tricend Design and Engineering, emailed Mr Bailey attaching for approval engineering drawings for the proposed pipe and culvert locations, and adding some notes on soil and waste management. Mr Bailey did not reply to the approval request but instead arranged for an on-site meeting the following week. In cross-examination he said he didn't reply because he didn't think the Tricend plan was acceptable.

1. On 27 June 2012 the alleged pollution event occurred.

1. On 27 June 2012 at approximately 1pm, Mr Bailey and Mr Michael Lacey, a Council development engineer, attended the Property to conduct a planned meeting with Mr Kennedy. It was raining quite heavily. The defendant had earlier emailed Mr Bailey saying that because it was raining he was attempting to reschedule Mr Kennedy, however Mr Bailey had not received the email. Mr Bailey decided to conduct an inspection in any case to determine the effectiveness of the sediment and control measures put in place. Mr Bailey's evidence was that the installed controls were not operating in a manner that captured the sediment transported in the stormwater and protected the environment.

1. The prosecutor alleges that the observations of Mr Bailey and Mr Lacey on this occasion evidence that sediment-laden water from the fire trail construction entered the Creek and changed the physical condition of the waters of the Creek, and that this was confirmed by three water samples taken by Mr Bailey. The observations and water samples are critical to the POEO Act water pollution charge. I address them in detail later in this judgment.

1. It is convenient at this point to say that I accept the opinions of the defendant's expert Mr McVey that: the Orchard report was well considered; the installation of the pipes was clearly the most important sediment and erosion control measure; installation of the pipes would have greatly reduced the migration of sediment past the sediment fences on 27 June 2012; his later inspection of the Property indicated that the proposed pipe sizes in the Orchard report seemed adequate and he confirmed this by calculations that took him about an hour; and a Council officer could have done such calculations in about two hours. It is unnecessary for me to express a view as to his opinion that it was unreasonable for a Council officer to reject Orchard's recommendation to install the pipes without checking whether the calculations confirmed what the author had said. I do not accept the prosecutor's submission that Mr McVey was an advocate for the defendant rather an impartial expert whose obligation was to assist the Court.

1. On 6 July 2012 Mr Bailey, Mr Lacey, Mr Kennedy and the defendant conducted a further inspection of the fire trail. It was raining quite heavily. At various locations along the fire trail Mr Lacey told Mr Kennedy and the defendant that the following issues should be addressed and suggested solutions, to which Mr Kennedy assented:

(a)   Locations where sediment and erosion control measures were ineffective and where silt fencing needed to be relocated to more suitable positions.

(b)   Locations where further and/or additional sediment and erosion controls were required including hay bales or silt fencing across the drain to slow and catch sediment.

(c)   The timing and manner in which the culvert and creek crossing was to be constructed.

(d)   The sizing of piped culverts and the provision of approximate calculations to prove the pipe size election was adequate based on the area of each catchment discharging through each pipe, noting that all the pipe crossings were the same size and there was a need to use the volumes from each catchment and confirm that the pipe sizing was adequate.

(e)   Stormwater energy dissipaters where there was a proposed pipe crossing such as near a landslip, and the need to submit a plan showing detail of piped outlets.

(f) General compliance of the fire trail with the requirements for access by the Rural Fire Service and other emergency services, referring to Planning for Bushfire Protection 2001.

1. Mr Bailey told Mr Kennedy and the defendant that he would put down their requirements in a letter to confirm their expectations. Mr Bailey and Mr Lacey then left the Property.

1. On 9 July 2012 Mr Bailey drafted a plan of the Property detailing the issues raised at the on-site meeting on 6 July. It was reviewed by Mr Lacey and emailed to Mr Kennedy of Tricend Design and Engineering and the defendant that day. Under the heading "Items to be addressed immediately (within 7 days as per clean-up notice)" appear six items. They include:

1. Broken/bare areas require sediment controls.

...

5. Sediment and erosion controls required to control speed and direction of water-top-bottom of roadworks.

1. Under the heading "Items to be addressed 14 days (as per clean up notice)" appear two items, one of which is:

Provide a revised sediment and erosion control plan which details the measures as installed (above)

1. On or about 7 July 2012 the defendant told his contractor Mr Stewart that he was still having trouble with the Council, he would not resume work until they had placed all issues on the table, this will take an indefinite time, and so if Mr Stewart needed them he had best remove the remaining machinery. Mr Stewart removed the last machines on 10 August 2012.

1. On 9 July 2012 Mr Bailey issued a clean-up notice, which he testified was an attempt to compel compliance with Council's requirements. As noted above at [10], this clean-up notice was held to be invalid in Lismore City Council v Ihalainen [2013] NSWLEC 149.

1. There are in evidence records of rainfall in the nearby Channon from the Bureau of Meteorology for the months of May, June and July.

EPA ACT CHARGES

1. The defendant is charged with three offences against s 125 of the EPA Act that he carried out development on the Property, being development the subject of the Consent, otherwise than in accordance with the Consent, contrary to 76A(1)(b). In the amended summons the EPA Act charges are numbered 2, 3 and 4.

1. Sections 76A(1)(b) and 125(1) of the EPA Act relevantly provide:

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:

...

(b) the development is carried out in accordance with the consent and the instrument.

125 Offences against this Act and the regulations

(1) Where any matter or thing is by or under this Act...forbidden to be done...and that matter or thing... is done, a person offending against that...prohibition shall be guilty of an offence against this Act.

1. These provisions give rise to strict liability offences. Section 76A also applies in civil proceedings. The state of mind of the person carrying out the development is irrelevant: North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169 at [16]-[17] (Preston CJ of LEC).

1. The defendant accepts that he authorised and controlled the carrying out of the development on the Property with one major qualification. The qualification, he submits, is that the Council took away his control when it issued the stop work notice on 1 June 2012.

1. The defendant submits that the three EPA Act charges should be dismissed as a matter of law because, on the proper construction of the Consent, it does not prohibit the matters alleged to constitute the breaches; and in relation to the alignment charge the prosecutor has failed to prove beyond reasonable doubt that the Site Plan was enclosed with and incorporated in the Consent or, if it was, that it imposed any alignment obligation.

1. The approach to the interpretation of penal statutes was enunciated in Scott v Causey [1907] HCA 80, (1907) 5 CLR 132 at 154-155 per Isaacs J:

When it is said that penal Acts or fiscal Acts should receive a strict construction, I apprehend it amounts to nothing more than this. Where Parliament has, in the public interest, thought fit in the one case to restrain private action to a limited extent and penalise a contravention of its directions, and in the other to exact from individuals certain contributions to the general revenue, a court should be specially careful, in the view of the consequences on both sides, to ascertain and enforce the actual commands of the Legislature, not weakening them in favour of private persons to the detriment of the public welfare, nor enlarging them as against the individuals towards whom they are directed...

1. A frequently quoted statement in more recent cases is that of Gibbs J in Beckwith v R [1976] HCA 55, (1976) 135 CLR 569 at 576:

The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences... The rule is perhaps one of last resort.

1. This statement was approved by the High Court in Deming No 456 Pty Ltd v Brisbane Unit Development Corp Pty Ltd [1983] HCA 44, (1983) 155 CLR 129 at 145; and Waugh v Kippen [1986] HCA 12, (1986) 160 CLR 156 at 164. In Waugh the High Court added the following salutary statement, at 165:

Furthermore, the process of construction must yield for all purposes a definitive statement of the incidents of an obligation...The legislature cannot speak with a forked tongue. Although the standard of proof applicable to criminal proceedings for a breach of the obligation will differ from that applicable to civil proceedings and the law may provide specific defences by way of answer to a prosecution which have no relevance to civil proceedings... the elements that make up the obligation will be the same in each case. For example, in the present case one could not conclude in favour of an objective criterion of the likelihood of a risk of injury in the context of a criminal proceeding and a subjective criterion for the purposes of a civil action.

1. As regards the construction of a development consent, in Winn v Director-General of National parks and Wildlife [2001] NSWCA 17, (2001) 130 LGERA 508 at [4] Spigelman CJ said:

A public document, such as a development consent, constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms. It has, as Stein JA points out, an inherent quality that it will be used to the benefit of subsequent owners and occupiers. It is also a document intended to be relied upon by many persons dealing with the original grantee, or assignees of the grantee, in such contexts as the provision of security. In some respects it is equivalent to a document of title. It must be construed in accordance with its enduring functions.

1. In construing a development consent, the ordinary rules of construction and principles of interpretation apply as with any other statutory instrument: Baulkham Hills Shire Council v Ko-Veda Holiday Park Estate Ltd [2009] NSWCA 160, (2009) 167 LGERA 395 at [97]-[99] following King Gee Clothing Company Pty Ltd v Commonwealth [1945] HCA 23, (1945) 71 CLR 184 and Cann's Pty Ltd v Commonwealth [1946] HCA 5, (1946) 71 CLR 210. Development consents are to be construed not as documents drafted with legal expertise, but to achieve practical results: Ko Veda at [96]-[99] and [105], applying Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [36], [40].

EPA Act charge 2: condition 9

1. In relation to EPA Act charge 2, the allegation in the amended summons is:

The Defendant failed, in breach of condition 9 of the said consent, to install sedimentation controls prior to works commencing on the site being on or about 28 March 2012 in accordance with the consent.

1. Condition 9 provides:

9. Erosion and sediment control measures must be put in place and be maintained to prevent soil erosion and the transportation of sediment from the site into natural or constructed drainage lines or watercourses. Control measures are to remain in place until the site has been adequately revegetated or landscaped to prevent soil erosion.

Note: Inspections of the structural work will not be carried out and work may not proceed, until the sedimentation controls are in place.

Reason: to prevent erosion of materials from the site

1. This charge is only concerned with failure to "install" (ie "put in place", to quote condition 9) sedimentation controls prior to commencement of the works on or about 28 March 2012. There is no charge of failing to install after commencement of the works. Consequently, unless condition 9 imposes an obligation to install prior to commencement of the works, the charge must be dismissed.

1. Because the charge is one of failure to "install", the "be maintained" requirement in the first sentence and the "are to remain in place" requirement in the second sentence of condition 9 are not directly relevant.

1. Work commenced on the fire trail on 28 March 2012. The defendant did not put in place (ie, install) any sedimentation control fences work prior to then, and did not do so until on and after 24 May 2012.

1. As the prosecutor accepts, condition 9 does not require its prescribed sediment control measures to be adequate or appropriate or to meet any other standard. In that respect it contrasts with one of the design criteria that the defendant is alleged to have breached under condition 13(i) viz "appropriate drainage and erosion controls" (see below). I accept the evidence of Mr Geoffrey McVey, an expert in erosion and sediment controls called by the defendant, that the standard for sediment controls generally accepted by the industry and regulators is compliance with the 75th percentile, 5 day storm depth for the district in accordance with the "Blue Book" (Landcom, Managing Urban Stormwater, Soils Construction, revised 4th ed by Landcom). Mr McVey is a co-author of the Blue Book.

1. The Council submits:

(a)   Condition 9 imposes an obligation to have sediment controls in place for the site - not just for the dwelling - before any work commences, and condition 13(i) imposes an obligation to have appropriate sediment controls during works and as built.

(b) The note to condition 9 is an operative part of the condition imposing an obligation that no work proceed on the site until sedimentation controls are in place. The use of the word "Note" emphases the importance of the obligation it imposes. It is not a "footnote" and therefore s 35 of the Interpretation Act 1987 excluding footnotes from instruments does not apply.

(c)   The mere presence of an old dam on the Property does not mean that there were sediment controls in place prior to work commencing.

(d)   Under condition 9 inadequately installed sediment controls are nevertheless sediment controls. But here no sediment controls at all were installed prior to commencement of work.

1. The defendant submits:

(a)   Condition 9, like conditions 1 to 8, only imposes a requirement for sedimentation controls in respect of the construction of the dwelling, not the construction of the fire trail, as is evident from its accompanying note which does not make sense in the construction of a fire trail. The only requirements in respect of the fire trail are in condition 13.

(b) The note to condition 9 is advisory only and does not impose an obligation on the developer not to proceed with access works such as the fire trail until the sedimentation controls are in place. The note is not part of condition 9. It is a footnote. Section 35(2)(c) of the Interpretation Act provides that a footnote in an instrument shall be taken not to be part of the instrument. The word "may" in the note's phrase "and work may not proceed until the sedimentation controls are in place" does not impose an obligation. It should not be construed as "must". The first part of the note ("inspections of the structural work will not be carried out...until the sedimentation controls are in place") is only advisory, and therefore it makes sense that the remaining part of the note ("and works may not proceed, until the sedimentation controls are in place") is also merely advisory and does not impose an obligation.

(c)   Alternatively, if the note to condition 9 prohibits proceeding with the fire trail work until sedimentation controls are in place, it does not require those controls to be in place prior to works commencing on the construction of the fire trail. "Proceed" should not be equated with "commence". The first sentence of condition 9 does not impose a temporal requirement in respect of the installation of those controls.

(d)   In any case, the prosecutor has not proved that sediment controls were not in place when work on the fire trail proceeded. Recognised sediment controls in the form of an old sediment dam or depression and existing grassy filter strips were in place.

1. The Council submits that the verb "maintain" in condition 9 is directed at the obligation during the carrying out of the works as opposed to at the start of the works, and therefore the separate obligation to "put in place" such controls arises prior to the works commencing. It may be accepted that the verb "maintain" is directed at the situation after the controls have been installed, but the question remains as to whether there is an obligation to install prior to the fire trail work commencing, which is a critical element of this charge.

1. Condition 9 is expressly concerned with transportation of sediment from the "site", not just from the building. This is reinforced by comparing its text with that of other conditions. The Consent contains 13 numbered conditions, each followed by a statement of the reason that the condition is imposed. Conditions preceding and following condition 9 are expressed to apply variously to the "site" and/or the "building" - meaning the approved dwelling. Condition 11 distinguishes the "site" from the "location of the building". Thus, the building is not the site. Condition 4, 8 and 9 are expressly concerned with the site. Conditions 1, 2, 5, 6, 7 and 11 are expressly concerned with the building. Condition 3 could extend beyond the building to the site. Condition 12 is implicitly concerned with the building. Condition 13 requires a fire trail: it was a requirement of the Rural Fire Service but, as I later decide, it is not concerned with the construction of the fire trail, only with the finished product.

1. I do not accept the defendant's submission that the note to condition 9 is a "footnote" and thus deemed not to be part of the Consent under s 35(2)(c) of the Interpretation Act: Pearce and Geddes, Statutory Interpretation in Australia (LexisNexis, 8thed, 2014) at [1.39], [4.56]-[4.57]. If I am in error and it is a "footnote", then s 5(2) applies, which provides that the Interpretation Act applies to an instrument except in so far as the contrary intention appears in the instrument. If the note to condition 9 is a footnote, a contrary intention appears that it is of a different nature. Its nature is that of notice of the consequences if the sedimentation controls are not in place.

1. Condition 9 - before one gets to its note - does not expressly state when the sediment control measures must be put in place. In particular, it does not state that they must be put in place prior to any work commencing, which is the critical element of the charge against the defendant.

1. The only express temporal provision is in the note to condition 9, on which the prosecutor relies: "Inspections of the structural works will not be carried out and work may not proceed, until the sedimentation controls are in place". The prosecutor emphasises the words: "and work must not proceed until the sedimentation controls are in place". The verb used is "proceed", not "commence or proceed". The verb "proceed" indicates not commencement but continuance, particularly after a stoppage, consistently with the following definitions of "proceed" in the The Macquarie Dictionary (3rd ed):

1. to move or go forwards or onwards, especially after stopping.

2. to go on with or carry on any action or process.

3. to go on (to do something).

4. to continue one's discourse.

1. The consent does not define these "inspections" of the structural work; rather, it assumes knowledge of what they are. Construed in the statutory context, they must mean the "critical stage inspections" for building work prescribed by cl 162A(4) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) under s 109E(3)(d) of the EPA Act.

1. Section 109E(3)(d) of the EPA Act provides:

109E Principal certifying authorities

...

(3) A principal certifying authority for building work or subdivision work to be carried out on a site is required to be satisfied:

...

(d) that building work or subdivision work on the site has been inspected by the principal certifying authority or another certifying authority on such occasions (if any) as are prescribed by the regulations and on such other occasions as may be required by the principal certifying authority, before the principal certifying authority issues an occupation certificate or subdivision certificate for the building or work, and

...

1. Clause 162A of the EPA Regulation provided as at the time of the Consent in June 2008 (it has since been amended):

162A Critical stage inspections required by section 109E (3) (d)

(1) For the purposes of section 109E (3) (d) of the Act, the occasions on which building work must be inspected are as set out in this clause.

Note. These inspections are the critical stage inspections.

(2) Except as provided by subclause (3), the critical stage inspections may be carried out by the principal certifying authority or, if the principal certifying authority agrees, by another certifying authority.

(3) The last critical stage inspection required to be carried out for the class of building concerned must be carried out by the principal certifying authority.

(4) In the case of a class 1 or 10 building, the occasions on which building work for which a principal certifying authority is first appointed on or after 1 July 2004 must be inspected are:

(a) at the commencement of the building work, and

(b) after excavation for, and prior to the placement of, any footings, and

(c) prior to pouring any in-situ reinforced concrete building element, and

(d) prior to covering of the framework for any floor, wall, roof or other building element, and

(e) prior to covering waterproofing in any wet areas, and

(f) prior to covering any stormwater drainage connections, and

(g) after the building work has been completed and prior to any occupation certificate being issued in relation to the building.

...

1. The dwelling the subject of the Consent is classified as a class 1 building. Therefore, cl 162A(4) is enlivened for the dwelling.

1. Under s 109E(3)(d), the prescribed inspections are only referable to "building work" or "subdivision work", and cl 162A(4) only applies to "building work". A "building" is defined in s 4 of the EPA Act:

building includes part of a building, and also includes any structure or part of a structure (including any temporary structure or part of a temporary structure), but does not include a manufactured home, moveable dwelling or associated structure or part of a manufactured home, moveable dwelling or associated structure.

1. This statutory context confirms the impression otherwise gained that the reference to "structural works" in the note to condition 9 means works pertaining to a building or structure, not to the unsealed fire trail required by condition 13.

1. The critical stage inspections prescribed by the EPA Regulation are all at points in time after building work has commenced, except for the first inspection "at the commencement of the building work" (in cl 162A(4)(a), which has since been repealed).

1. The words "work may not proceed" should be construed as meaning "work must not proceed". They impose an obligation, not a discretion as to whether or not to proceed with work. If a discretion had been intended, the words used should have been "may or may not proceed". However, a discretion would make no sense in this context. The granting of a discretion would be superfluous, and the purpose of the note would be defeated if it gave a discretion whether or not to proceed with the structural work notwithstanding sedimentation controls not being in place and no statutory inspections. My construction is consistent with Samad v District Court of New South Wales [2000] NSWCA 344, (2000) 50 NSWLR 270 where the Court of Appeal held that the following statutory provision was mandatory not discretionary: "A licence may not be issued unless the Director General is satisfied that premises to which the application relate are appropriate for the manufacture or supply of drugs of addiction": at [73] (the provision is set out at [22]).

1. I construe the word "work" in the note as meaning the structural work referred to earlier in the note. It does not matter if the "sedimentation controls" referred to in the note mean those related to the construction on the entire site because the only consequences are referable to the dwelling.

1. I conclude that the note to condition 9 is, in nature, a notice that until sedimentation controls are in place, the statutory critical stage inspections of the dwelling will not be carried out and structural work on the dwelling must not proceed.

1. Looking again at condition 9 apart from its note, as I have observed it has no express requirement that sediment control measures must be put in place prior to any work being carried out. Nor is there any necessary implication of such a requirement. That construction is reinforced so far as concerns the fire trail if condition 9 were to be construed in a practical way in the context of industry practice that sediment controls are not usually put in place for a fire trail prior to work commencing. The evidence of the defendant's expert, Mr McVey, which I accept, is that the pushing topsoil off a fire trail on the down side in the process of initial construction is a form of sediment control, that this is usually the first thing done in the process of roughing out the road alignment, and that any other sediment control measures follow. The defendant's contractor, Mr Stewart, who was called by the prosecutor, gave evidence that roughing out the road was the first thing that he did: this is the process which involves removal of the topsoil.

1. As I have concluded that condition 9 did not require sediment controls to be put in place prior to work on the fire trail commencing, I find the defendant not guilty on this charge.

1. It is unnecessary to address the defendant's alternative, fall-back submission that the prosecutor has not proved that sediment controls were not put in place before fire trail work commenced. The submission is based on the fact that an old dam or depression and grass (filter) strips already existed and they acted, I accept, as sediment controls. If it were necessary to address the submission, I would not accept it because they were not "put in place" as sediment controls prior to work commencing. Condition 9 requires that sediment control measures "must be put in place" (ie, in the future). Furthermore, more sediment controls were plainly required to be put in place (in the language of condition 9) "to prevent transportation of sediment from the site into" the Creek.

EPA Act charge 3: alignment of the fire trail

1. In relation to EPA Act charge 3, the allegation in the amended summons is:

The Defendant failed, on or about 28 March 2012 to 22 May 2012 in breach of the said consent, to construct an access road (being the alternative/secondary emergency access) between Town Road and the proposed new dwelling on the site in accordance with the approved alignment of the said access road.

1. The "approved alignment" is alleged to be that shown by the thick black hand-drawn broken line on the Site Plan. Given the characteristics of that line, it should be viewed as an approximation of the alignment.

1. The Council contends that the Site Plan was enclosed with and incorporated as an approved plan into the Consent, and obliged the defendant to align the constructed fire trail in accordance with the Site Plan.

1. The evidence establishes that the constructed fire trail did not align with that shown on the Site Plan in substantial respects. Evidence of misalignment is found in a survey carried out for the Council in December 2012 by Mr John Wade, a certified engineering surveyor. His survey shows substantial differences between the alignment on the Site Map and the alignment as constructed. The cross-examination of Mr Wade established that there were errors in his survey such that at one or more points his depiction of misalignment should not be accepted. However, as was demonstrated in re-examination, there remain substantial differences between the alignment on the Site Map and the alignment as constructed.

1. The Council does not allege that a condition of the Consent was breached. Rather, it contends that the Site Plan alignment was part of the approved development and that the defendant carried out that development other than in accordance with the Consent into which the Site Plan was incorporated.

1. The advisable way in which approved plans are incorporated into a development consent is for the development consent to expressly identify them, and for each plan to be stamped with the Council's approval and a cross reference to the development consent under which it was approved. That did not occur in this case.

1. The fire trail was required by condition 13 of the Consent, which however does not refer to the Site Plan or the alignment of the fire trail:

13 (a) Construction shall comply with AS 3959 - 19999 Level 3 'Construction of Buildings in Bushfire Prone Areas'.

(b) In recognition that no reticulated water supply exists, a 10,000 litre dedicated water supply tank shall be provided and a minimum of 2kW (5hp) petrol or diesel powered pump. A 65mm storz fitting and ball or gate valve shall be installed in the tank.

(c) Access shall comply with Section 4.3.2 Planning for Bushfire Protection 2001.

(d) Access to the rear of the property shall be provided for fire fighting purposes.

(e) The proposed structure shall be relocated to the north-east, so it is no closer than 60 metres from the forest vegetation to the west or the south.

(f) Roofing shall be gutterless, screened or have leafless guttering and valleys are to be screened, to prevent the build-up of flammable material. Any screening is to have a flammability index not less than 5.

(g) The property around the dwelling to a distance of 50 metres on the southern and western elevations and 30 metres on the northern and eastern elevations, shall be maintained as an Outer Protection Area (OPA), as outlined within Section 4.2.2 in Planning for Bushfire Protection 2001.

(h) All fencing in the Inner Protection Area shall be constructed from non-combustible materials.

(i) The proposed alternative emergency access shall comply with Section 4.3.3 Planning for Bushfire Protection 2001.

(j) This building has been assessed under the requirements of Section 79BA of the Environmental Planning and Assessment Act 1979, as a single dwelling for long-term occupation. No buildings or structures are to be used for a tourist facility (bed and breakfast, farm-stay etc), land-sharing developments or any other use that would require assessment under Section 100B of the Rural Fires Act 1997, unless a "Bush Fire Safety Authority" is obtained for that purpose.

Reason: To comply with the requirements of the Rural Fire Service.

1. The defendant submits:

(a)   the Council has not proved beyond reasonable doubt that the Site Plan was enclosed with and incorporated in the Consent;

(b)   even if the Site Plan was enclosed with and incorporated in the Consent, it did not impose an obligation on the defendant to make the fire trail follow the alignment on the Site Plan;

(c) in any case, s 76A(1)(b) is only concerned with breach of a condition and is therefore inapplicable because the prosecutor does not allege breach of a condition in relation to the alignment.

1. As a general rule, a development consent, being a public document operating in rem for the benefit of third parties, such as successors in title and security holders, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it: Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 at 407.

1. However, plans and other documents may be incorporated in a development consent expressly or by necessary implication: Allandale Blue Metal Pty Ltd v Road and Maritime Services [2013] NSWCA 103, (2013) 195 LGERA 182 at [24], [43]-[48], [153]-[163]:

1. A document attached to a development consent or referred to in it for the purpose of identifying or describing something dealt with in the consent, will for that reason be expressly incorporated in the consent: Allandale at [45] citing Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 434 and Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2).

1. In Szabo the only description in the consent of what had been approved was "additions": at 434. At the foot of the consent form it was stated: "Plans and specifications are herewith attached". Hope J held that those plans and specifications were incorporated in the consent. I observe that the plans and specifications were apparently not endorsed or described as having been approved but it would have been impossible to know what the approved additions were unless they were incorporated in the consent.

1. An influential and often quoted decision on incorporation principles and how they play out is that of Else-Mitchell J in Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321. In that case, a development application for a laundry stated the proposed working hours. The record of the development consent did not refer to working hours. Else-Mitchell J held that the development consent did not include any limitations of working hours. His Honour said at 323-324:

But the mere approval of an application does not, I think, necessarily have the effect of incorporating all the matters stated in the application. For one thing, many of the matters so stated are general matters of fact or assertions of intention furnished or made for the purpose of informing the council of the nature of the development, and for another, an application will often consist of or be supplemented by informal documents and even oral statements made by or on behalf of an applicant. Serious inconvenience, ambiguity and confusion could arise if, in all instances, general statements of fact and assertions of intention in an application form, as well as every other statement made in support of an application, were to be regarded as terms or conditions of a development consent, and problems would inevitably arise as to the real scope and tenor of any such consent.

...

It must not be overlooked that a consent to the development of land under a prescribed planning scheme is not personal to the applicant but enures for the benefit of subsequent owners and occupiers, and in some respects a consent is equivalent to a document of title.

I therefore think it sound to say that the legal qualities a consent possesses, or which flow from a consent, are so important that care should be taken to ensure that consents are framed in clear terms and conditions are specified with certainty. Any lack of clarity or certainty is the responsibility of the council and it must take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject.

1. Another example of how the incorporation principles play out is found in Stebbins v Lismore City Council (1988) 64 LGRA 132 (considered in Allandale at [47] and [161]). There, the issue was whether a consent to a development application for a motel extension included the construction of a new entrance or driveway from the motel to a new highway. The development application was accompanied by a plan showing that entrance. The development consent issued to the applicant did not refer to the new entrance but was accompanied by a copy of the plan stamped "Approved' and marked up by the Council so as to indicate that the entrance was not approved. The Court of Appeal held that the plan should be read with the notice of consent and therefore the consent could not, in view of the stamp, be regarded as allowing for the entrance: at 156-136. The Court also considered the alternative position that the notice alone constituted the consent. In that circumstance the Court said that recourse could be had to the development application and accompanying plan because the consent could not be understood without recourse to them. A searcher wishing to obtain a full appreciation of the terms of consent would then see a plan showing no approval had been given to the new entrance: at 136.

1. Stebbins contrasts with the present case. Stebbins was concerned with a plan accompanying the development application that the consent authority amended and stamped "Approved" and returned with the notice of the consent. In the present case the Site Plan did not accompany the development application but was sent by the defendant to the Council under cover of a later letter dated 14 April 2008; it was not stamped "Approved"; whether the prosecutor has proved beyond reasonable doubt that it was even enclosed with the notice of determination of the Consent is in issue; and the Consent, including condition 13, which requires a fire trail, can be understood without recourse to the Site Plan.

1. The Consent is expressed to be in respect of a development application for a "Dwelling". The notice of the Consent does not expressly identify any approved plans. The first question is whether the Site Plan was enclosed with the notice of determination. On the last page of the Consent, beneath the signature of a Council officer, there appears the abbreviation "Encl", indicating an enclosure or enclosures. The Consent, after setting out the conditions, has a section titled "Information to Applicants". One of the matters appearing thereunder is:

COMPLIANCE

The development shall be carried out in accordance with the application, and "approved plans" as may be attached to this consent, and as amended by the foregoing conditions. All conditions shall be complied with prior to occupation of the development and, where appropriate, during the operating life of the development.

[emphasis in original]

1. The Council submits that the Consent had enclosures comprising five plans on five pages - including the Site Plan on page 5 - which are now located in the Council file (Exhibit C) immediately behind a copy of the notice of determination of the Consent, and that they were thereby incorporated into the Consent as approved plans.

1. The first three (Plans 1, 2 and 3) of these five plans are of the same character, being detailed plans of the approved dwelling. Plan 1 is a floor plan; Plans 2 and 3 show elevations and other significant details. On Plan 1 only there is a Council approval stamp. It is dated the same date as the operative date of the Consent and bears the signature of the same Council officer who signed the notice of determination of the Consent. The approval stamp on Plan 1 states under "Lismore City Council" that "Development as detailed on this Plan, or as amended in red, is approved on behalf of the Council subject to the conditions contained in the Development Consent". Clearly, Plans 1, 2 and 3 belong together because they have a common subject matter and are respectively numbered 1 of 3, 2 of 3 and 3 of 3. It is unsurprising that the approval stamp only appears on Plan 1 of 3 and not Plan 2 of 3 and Plan 3 of 3 -although it would have been preferable if it had been on all three. Unless Plans 1, 2 and 3 were enclosed and incorporated into the Consent it would be impossible to know what the approved dwelling comprises. I conclude that Plans 1, 2 and 3 were approved plans enclosed with and incorporated into the Consent. The defendant accepts that this is so.

1. The fourth plan (Plan 4) is a plan of subdivision on which there has been superimposed the approximate location of the proposed dwelling represented by a small blue hand drawn square: 320 metres from Wallace Road, 140 metres from the northern boundary of the Property and 130 metres from its southern boundary.

1. The fifth plan (Plan 5) is the Site Plan. The Site Plan is an aerial photograph. It shows the Property as roughly rectangular with its parallel long sides running between Wallace Road on the west and Town Road on the east. Superimposed on it are a legend, a small blue hand-drawn square, a thick black hand-drawn unbroken line leading from Wallace Road to the blue square, and a thick hand drawn broken black line leading from the blue square to Town Road. The legend describes the blue square as "Proposed Dwelling Location", the thick black unbroken line as "Proposed New Primary Access driveway", and the thick black broken black line as "Proposed Secondary Driveway Access".

1. Unless Plan 4 was enclosed and incorporated into the Consent, it is impossible to give effect to condition 11, which provides: "The location of the building on the site must be established by a Registered Surveyor and must comply with this approval. Reason: to ensure the building is located on site in accordance with the approval". If Plan 4 was enclosed with the Consent, as it should have been, then there is some force in the view that Plan 5 (the Site Plan) was, as it were, in the same basket, for neither was stamped with the Council's approval, both were of a different character to Plans 1, 2 and 3, and both were attached to and folded in the same way as Plans 1, 2 and 3 in 2012.

1. Mr Bailey swore in an affidavit that an exhibit to the affidavit was a copy of the Council file (Exhibit B). It shows the five plans together but not attached to each other and not behind the copy notice of determination of the Consent.

1. This created evidentiary confusion. The Council sought to dispel the confusion by thereafter adducing oral evidence from Mr Bailey and tendering its whole file (Exhibit C) in which the five plans appear together and folded in the same way, but not attached to each other, immediately behind the copy notice of determination of the Consent. The documents in this file are not in chronological order, suggesting that the file has been reconstructed, and they are not in the same sequence as the purported copy of that file exhibited to Mr Bailey's affidavit.

1. In opening, the prosecutor said that there would be evidence from Mr Bailey that the plans, including the Site Plan, were attached to the Consent in the Council file. However, Mr Bailey did not give that evidence.

1. In subsequent oral evidence, Mr Bailey said in summary (which only fully emerged after extensive questioning) that when he inspected the Council file between 24 May and 8 June 2012 the five plans were held together by a rusty staple and were located immediately behind the copy notice of determination of the Consent. He said that he removed the staple in order to photocopy the Consent and Site Plan and after photocopying he put the plans back in the file in the same sequence, but did not staple or attach them together again. When asked why not, he said he was not sure, he would normally staple or attach them to keep the integrity of the file. At one point he said he saw the rust mark on the back of the Site Plan, later he said it was on the front of the Site Plan. In fact, there is no rust mark on either. The rust mark is visible only on the front of Plan 1. The staple holes are visible in the same location on all five pages. Anyone now searching the file without knowledge of Mr Bailey's evidence would not necessarily deduce that the five plans had ever been fastened together. There is no direct evidence that any of them were ever physically attached to the copy notice of determination of the Consent in the Council file. Mr Bailey conceded that anyone at any time could have accessed the file without leaving any record of having done so, taken documents apart, copied them, stapled them and put them back. To my mind, there is some doubt as to whether the five plans that Mr Bailey said were stapled together in 2012 were all stapled together in 2008 when the Consent was granted.

1. In 2012 a Council development engineer, Mr Michael Lacey, obtained a copy of the Consent without any enclosures. In cross-examination, Mr Lacey said he was certain he had never seen the Site Plan before (notwithstanding that he refers to it in his affidavit). This illustrates the problem when a development consent does not expressly identify all approved plans and plans are not all stamped with the approval and cross referenced to the development consent.

1. In a telephone conversation between the defendant and Mr Bailey on 23 May 2012, the defendant said that he had a Council approval for the works, namely "DA 05/842 for a new house at the top of my property and as part of that consent I am required to construct a fire access track". This indicates an understanding of condition 13 but does not necessarily evidence an admission that the Site Plan was enclosed with the notice of determination of the Consent received by the defendant.

1. As noted above at [12], the Council issued the 2011 consent, being a "deferred commencement" development consent for a 2009 development application for the use of the Property as a rural landsharing community comprising eight dwellings, associated internal vehicular access and tree removal. The 2011 consent is not the subject of these proceedings but Mr Bailey's evidence was that it included an approved plan, which shows an alignment for the fire trail. His evidence is verified by condition 1 of the 2011 consent, which provides that the development be "substantially in accordance with the stamped approved plan 3.1 Proposed Site Layout, Amendment C, dated 10/08/09...a copy of the approved plan is...attached to this consent". Mr Bailey swore, incorrectly, that the Amendment B version of this plan dated 11.02.09 was the approved plan. Confusingly, that version is placed in the exhibit to his affidavit immediately behind a copy of the notice of determination of the 2011 consent. The version of the plan actually referred to in condition 1 appears in the evidence tangentially in a bundle of documents exhibited to the affidavit of the Council's surveyor, Mr Wade whose evidence was not directed to this issue. I will not dwell on this further confusion in the Council's evidence in relation to approved plans. The significance of condition 1 of the 2011 consent and its stamped approved plan is that they contrast sharply with the Consent which has no such condition and no stamped approval on the Site Plan.

1. Two principles loom large. The first is the enduring function of a development consent as a document in rem in which third parties, such as successors in title and security holders, have an interest. The second is that lack of clarity or certainty is the responsibility of the council as the consent authority and it must take the consequences of any failure to spell out accurately or in detail what is consented to as well as any conditions to which a consent is subject. The in rem question as between a council and third parties is whether a third party searcher of the council's development consent records would know from the search that a particular plan was enclosed with and incorporated into a consent as an approved plan. That is an objective question. The third party searcher should not have to speculate from the records; nor have to hunt down and interrogate the person who signed the notice of determination of the development consent or the person who put it in an envelope to mail it to the applicant or the recipient of the notice - all of whom may be long gone. It seems to me that there is also an in personam, subjective question as between a council and the applicant for consent as to whether the applicant in fact received a plan enclosed with and incorporated into the notice of the consent as an approved plan. If it were to be proved that an applicant for consent received a notice of determination of consent with a plan enclosed as an approved plan, the applicant could not be heard to say that the plan should be treated as not enclosed and incorporated as an approved plan merely because a third party searcher of the council's records would not know it had been enclosed and incorporated as an approved plan.

1. In the present case, given the state of the whole of the evidence, I have a reasonable doubt as to whether the Site Plan was enclosed with and incorporated into the Consent.

1. If I am in error and the Site Plan was enclosed with and incorporated into the Consent, in my opinion the Consent did not impose an obligation on the defendant to align the fire trail as shown on the Site Plan. Rather, in my view, the Site Plan was incorporated only to identify that the fire trail ran between the proposed dwelling and Town Road, and it indicated the intention of the applicants as to its alignment but without imposing an obligation on the beneficiary of the Consent to follow that alignment. Several reasons in combination lead me to this conclusion. First, the Site Plan did not accompany the development application. Secondly, there is no provision in the Consent specifically requiring the development to be in accordance with the Site Plan (unlike the 2011 consent discussed above). Thirdly, the Site Plan is not stamped as an approved plan. Fourthly, condition 13 of the Consent, which requires a fire trail, may be contrasted with condition 11 which requires that: "The location of the building on the site must be established by a Registered Surveyor and must comply with this approval. Reason: to ensure the building is located on site in accordance with this approval". Whereas there is an obligation under condition 11 to locate the building on a particular part of the site, there is no similar requirement in the Consent that the fire trail must follow any particular alignment. If it was intended to impose an obligation on the beneficiary of the Consent to align the fire trail in accordance with the alignment on the Site Plan, that could have been spelt out expressly in the Consent but, unlike condition 11, it was not.

1. Finally, the facts and reasoning of the Court of Appeal in Allandale (above at [94]) assist my conclusion. In that case the development consent was for a quarry. A number of references to "the quarry" in the conditions of the consent assumed that there would be an area capable of answering that description during the period the quarry operations were conducted. The question of construction was whether the references were to a specifically designated area of the subject site or to the area within that site on which, at any particular time, quarrying operations were being conducted: at [52]. The majority of the Court of Appeal concluded that the references to "the quarry" in the consent were to a specifically designated and definite area which was not the whole of the site. In order to identify that area, it was necessary to go to the development application. That was permissible because by using the expression "the quarry" without identifying its area, the consent must be taken necessarily to incorporate the development application and accompanying documents for the purpose of identifying the area: [55], [192]. The development application referred to an attached letter and plan. On the plan an area was circled indicating the proposed quarry area. The attached letter stated: "the proposed maximum area involved in quarrying activities is 40 hectares as indicated in the diagram": at [56]. The letter and plan were held to be incorporated into the Consent only for the limited purpose of identifying the area of the quarry which was ambiguous in the Consent, but it was acknowledged that statements of intention in documents accompanying a development application (such as intended operating hours) are different. Ward JA held at [196]:

The difficulty said to arise from incorporated general statements of intention (such as operating hours) into the consent does not arise where the incorporation need only be for the limited purpose of determining that which is unclear on the face of the development consent (namely the location and size of the quarry for which approval was given).

1. Accordingly, I find the defendant not guilty of the alignment charge.

1. It is unnecessary to address the defendant's alternative submission that there could be no contravention of s 76A(1)(b) of the EPA Act because that provision only applies if there is a contravention of a condition and the prosecutor disavows reliance on a condition, asserting instead that the Site Plan was part of the approved development. If it were necessary to address the submission, I would not accept it. Section 76A(1)(b) is in broad terms, which are not limited to breaches of a condition. Where an environmental planning instrument provides that specified development may not be carried out except with development consent, s 76A(1)(b) prohibits a person from carrying out the development unless "the development is carried out in accordance with the consent and the instrument". A development consent need not impose obligations only by way of conditions. An obligation is imposed by s 76A(1)(b) that the beneficiary of the consent carry out the development "in accordance with the consent". For example, if a consent incorporates expressly or by implication an approved plan, the consent must be implemented in accordance with that plan if it is apparent that that is intended (for example, as in Allandale).

EPA Act charge 4: condition 13(i)

1. In relation to charge 4, the allegation in the Amended Summons is:

The Defendant failed, between 28 March 2012 to 4 December 2012 in breach of Condition 13(i) of the said Consent, to construct an access road (being the alternative/secondary emergency access) between Town Road and the emergency access) between Town Road and the proposed new dwelling on the site so as to comply with section 4.3.3 of the NSW Rural Fire Service's Planning for Bushfire Protection 2001".

Particulars

1. The Defendant failed to install and maintain appropriate drainage and erosion controls

2. The Defendant failed to construct and maintain the road in a serviceable condition.

3. The Defendant failed to construct and maintain the road so as to ensure it was trafficable under all weather conditions.

1. Condition 13(i) of the Consent provides:

13(i) The proposed alternative emergency access shall comply with Section 4.3.3 Planning for Bushfire Protection 2001.

1. At the end of condition 13, there is stated the reason for imposing it: "Reason: to comply with the requirements of the Rural Fire Service".

1. Section 4.3.3 Planning for Bushfire Protection 2001 relevantly provides:

4.3.3 Fire Trails

...

(b) Design Criteria:

...

Appropriate drainage and erosion controls;

...

Must be maintained in a serviceable condition by the owner of the land;

1. It is unnecessary to go further but I would make an additional comment about Mr Anink's evidence that the effect may equally have been beneficial or detrimental. It has been held that a change to the physical, chemical or biological condition of waters need not be a change which has some detrimental or degrading effect in order to come within the statutory definition of "water pollution": Munters at 283-284. The defendant submits that the decision in Munters is wrong when one looks at the objects of the POEO Act. Munters adopted a literal construction of the statutory definition of "water pollution", which is contrary to the ordinary meaning of "pollution" that the environment is changed to its detriment. The Australian Oxford Dictionary defines "pollute" as to "contaminate or defile the environment". The literal construction of the statutory definition of "water pollution" might be thought to be unharmonious with the objects of the POEO Act in s 3(a) and (d) to "protect...the quality of the environment", and to "prevent the degradation of the environment" by prescribed mechanisms, because if a change is not detrimental then there is no need for such protection or prevention. On the other hand, the literal construction is reinforced by contrasting s 120 (under which the defendant is charged) with an offence under s 116 of wilfully or negligently causing a substance to escape "in a manner that harms or is likely to harm the environment". There is some tension between the literal construction of the statutory definition of "water pollution" and the decision of the NSW Court of Criminal Appeal that the definition of "pollute" (or "water pollution") "is to be applied in a common sense fashion"; so that, for example, if the normal maintenance of a domestic swimming pool involves treating the water from time to time with chlorine, the condition of the waters would not thereby be relevantly "changed": Electricity Commission of New South Wales v Environment Protection Authority (1992) 28 NSWLR 494 at 498-499 per Gleeson CJ. Where there is a beneficial change to waters in a receiving creek, would "common sense" similarly mean that the condition of the waters of the Creek was not relevantly changed? Insofar as Munters decided that the change required by the statutory definition does not have to be detrimental, I am not satisfied that the decision was wrong.

Water samples

1. Mr Bailey provided a plan being an aerial photograph on which he marked the approximate locations where he took the three samples, and a copy of the Site Plan on which he marked where the numbered photographs of 27 June 2012 were taken. In oral evidence he marked on a copy of the latter the approximate line of the Creek and indicated approximately where he took the three samples. According to his evidence, as it ultimately emerged:

(a)   Sample 1 was taken in the Creek, above a waterfall which plunged into a sediment filled pool, well above the Creek crossing. Photograph numbered 15 taken on 27 June 2012 shows the location. Based on the expert evidence of Mr Anink for the defendant, which I accept, sample site 1 is about 34 metres upstream of the crossing.

(b)   Sample 2 was taken where water overflowed a sediment control fence next to the fire trail about 34 metres from the Creek. This emerged in cross-examination. Photograph numbered 13 taken on 27 June 2012 shows the location. In an affidavit at [59], Mr Bailey said erroneously that he took sample 2 at a location below the sediment and erosion controls and before the said drain, which had been formed as part of the fire trail construction work, discharged into the Creek. This affidavit evidence is inconsistent with his memo to file dated 27 June 2012 in which he wrote that he took this sample "from the centre of the water flow which was flowing over the sediment fence".

(c)   Sample 3 was taken in the Creek below where he said he observed sediment-laden water from the fire trail enter the Creek. There is no photograph showing the location where Sample 3 was taken. Based on Mr Anink's evidence, sample site 3 is some 87 metres downstream of the crossing.

1. The Creek at its nearest distance of about 34 metres from sample point 2 is between the crossing and sample point 3.

1. Mr Bailey took the three water samples each at a depth of about 20 centimetres using a water bottle on an extension arm. He took samples 1 and 3 at a depth of about 20 centimetres about half way to the bottom of the Creek. To determine where the bottom of the creek was, he said it was possible that he used the extender to ascertain where the bed of the watercourse was. Mr Anink, whose evidence I accept, said that this may have disturbed the sediment on the bottom, which would have the potential to affect the water sampling.

1. Mr Lacey observed Mr Bailey tightening the lids on the sample jars and noted that the waters in the jars were the same colour as the water he could see flowing in the Creek.

1. Subsequent laboratory analysis of the samples showed that the total suspended solids (mg/l) were:

Sample 1	264
Sample 2	1,595
Sample 3	830

1. Dr Dennis Licari, at the time an Environmental Strategy Officer (Ecologist) with the Council, concluded from these results of the water samples that the fire trail works had significantly impacted on the measure of total suspended solids and that the increased sediment loads result in increased turbidity, nutrient loads and sediment deposition. He considered that these three factors would likely adversely affect stream hydrology, the health and function of downstream aquatic ecosystems and aquatic habitat.

1. Mr Bailey's water sampling design and execution was heavily and convincingly criticised by Mr Anink. Based on Mr Anink's evidence, which I accept, it would be unsafe to draw a conclusion from the sampling exercise that a discharge of stormwater from sample site 2 changed the physical condition of the waters of the Creek.

1. Mr Anink was asked, having regard to the prosecution evidence, to express an opinion about the degree of confidence that could reasonably be held, at a scientific level that the recorded results of the three water samples demonstrate that sediment entrained in stormwater runoff from the fire trail caused pollution of the Creek.

1. Mr Anink provided a topographic map of the total Creek catchment of 94 hectares through to its discharge to Terania Creek. He also obtained relevant rainfall data for the closest Bureau of Meteorology weather station at The Channon site, some 4 kilometres south of the Property, from May 2011 to the end of 2013 in order to understand the overall rainfall pattern for the locality around the alleged pollution incident date, and to be able to place that date into the context of rainfall for the locality.

1. Mr Anink was critical of (a) Mr Bailey's decision to sample only three sample sites and to have them spaced so far apart given the increased possibilities of uncontrolled sources of sediment input between the three sample sites; and (b) the fact that no replicate samples were taken to provide an estimate of within site variation. The latter point is consistent with the evidence of Dr Licari, a prosecution witness, in cross-examination that replicate samples should be taken where possible in accordance with the training manual.

1. If sample site 2 was located in a place where water from the fire trail flowed overland prior to entering the Creek (as it allegedly did), Mr Anink said that there may have been sediment entrapment via filtration through grasses.

1. As for Mr Lacey's observations that Mr Bailey wrote details on the water sample jars and tightened their lids and that the water in the jars was the same colour as the water Mr Lacey could see flowing in the Creek, Mr Anink noted that this is the sum total of "field comments" for the water sampling and, in his opinion, is unreliable in terms of establishing basic sampling details.

1. Mr Anink ascertained that there were other sub-catchment drainages flowing from the north-east and west to join the Creek between the road crossing and sample site 3, and that sample site 2 was also within the sub-catchment drainage from the west. That is, there were multiple possible sources of stormwater runoff between sample site 1 and sample site 3 that were not controlled by additional and multiple sampling, to the extent that the higher total suspended solids reading at sample site 3 cannot be attributed solely to waters derived from sample site 2. This is further compounded by the probability that sample site 2 is locked in a natural western drainage sub-catchment. That analysis does not take into account other factors that may influence the total suspended solids measurement at sample site 3. For instance, given that large sections of the Property had been cleared for livestock grazing including removal of Creek bank riparian vegetation, he considered that there is likely to have been additional bank erosion along the Creek between sample sites 1 and 3 that could contribute additional sediment loads. High rainfall events in summer 2011 to 2012 (that Dr Licari omitted to mention) could have destabilised the Creek with consequent accelerated sediment movements through the Creek in subsequent storms in April, May and early June 2012.

1. Mr Anink criticised the absence of a description of the water path between sample site 2 and the Creek from which it could be deduced one way or another whether there were possibilities for sediment capture along that water path.

1. Taking the three sample total suspended solids results at face value and putting aside any possibility of multiple other sources of suspended solids between the three sample sites, the relative water flows required as a percentage of total flow at sample site 3 can be calculated. Mr Anink's calculations led him to conclude that there must have been additional sources of sediment other than those measured at sample sites 1 and 2 that contributed to the total suspended solids measurement at sample site 3.

1. Based on the unsound nature of Mr Bailey's water sampling and associated uncertainties, as well as absence of evidence, Mr Anink concluded that there was no sound basis for Dr Licari's conclusions as to the impact of the fire trail works on the waters of the Creek.

1. Mr Anink concluded that the sampling design and limited information provided by Mr Bailey and Mr Lacey do not meet the basic criteria for the design, collection, labelling, transport and storage of water samples for legal purposes, and do not meet the recommended sampling and reporting methods provided in the ANZECC Australian Guidelines for Water Quality Monitoring and Reporting Chapter 4.

1. Mr Anink's conclusions were expressed as follows:

52. As a result of my observations from the site visit I have concluded that all the possible additional sources and sinks of sediment not related to road works that could have been carried into the unnamed creek during the storm of 27 June 2012 between Mr Bailey's sampling sites 1 and 3 would have been available and operational on that day namely:

stock track erosion from the steep ravine banks between site 1 and the waterfall,

additional sediment mobilisation in the waterfall plunge pool,

additional sediment mobilisation from the boggy stock area immediately upstream from the road crossing,

additional sediments from active bank erosion within the creek itself between the road crossing and site 3 and,

additional sediments brought down to the creek from sub-catchments A and B (which both drain to the creek upstream of site 3),

some deposition of suspended sediments in the grassy swale drainage in sub-catchment A between site 2 and the creek.

53. Accordingly, I conclude that the total suspended sediments results obtained from the three water sample sites on the 27 June 2012 cannot be correlated, and in particular there is no basis for concluding that there is direct causation between the high TSS reading at site 2 and the elevated result for site 3.

54. Over and above these conclusions, there remain distinct methodological problems of sampling design, inadequate descriptions or records of the sampling site locations or of the sample site characteristics, plus the lack of replicate sampling, such that I also question the validity of the actual TSS results. By this I mean that there is no basis for concluding that the samples themselves were representative of the actual TSS within the water column at each site.

55. As a consequence I conclude that the deficiencies in the design and execution of the water quality sampling undertaken on 27 June 2012 at 27 Town Road Terania Creek are such that the total suspended solids (TSS) measures of the three water samples collected on 27 June 2012 cannot be relied on with any reasonable degree of confidence to support the claims at paragraphs 17 and 18 of the two relevant summons, namely that the defendants introduced into the waters of the tributary of Terania Creek solid matters, being soil, such that the physical, chemical and biological condition of the water was changed (paragraph 17) or that the change in the condition of the waters made, or was likely to make the waters unclean, impure, detrimental to the health, safety, welfare or property of persons, undrinkable for farm animals, harmful to aquatic life, animals and fish in the waters, and obstructed and interfered with, or was likely to obstruct and interfere with persons in the exercise or enjoyment of any right in relations to the water (paragraph 18).

1. In cross-examination, Mr Anink further explained his critique: (a) Mr Bailey had not proved by his analysis that sediment-laden waters necessarily came down from the fire trail work and made it to the watercourse where he sampled; (b) Mr Bailey's design of the sampling was inadequate to sustain the conclusions made; (c) the concentration of suspended solids measured at sample site 2, at the overflow over the sediment fence, was not a reliable measure of what the concentration was at the point where, and if, it allegedly entered the Creek because the stormwater overflow was being drained into a grassy sub-catchment where it intermingled with other waters and the grassed area would pull sediment out from the intermingled waters before they entered the Creek; (d) at sample site 2 the stormwater would have been turbulent where it hit the sediment fence, stirring up sediments that were there; and (e) the colour of water is not a reliable indication of the concentration of sediment within a sample.

1. Having regard to Mr Anink's evidence, I have a reasonable doubt as to whether the water sampling proves that sediment-laden stormwater runoff from the fire trail changed the physical condition of the waters of the Creek.

Conclusion

1. Accordingly, the POEO Act charge must be dismissed.

Causation

1. It is therefore unnecessary to address the defendant's fall back submission, premised on the contrary conclusion, that in any event the prosecutor has not proved that the defendant caused the pollution by way of changing the physical condition of the waters of the Creek. Nevertheless, I will briefly record the causation issue principles and submissions.

1. The prosecutor relies on ordinary principles of causation and/or on ss 257(1) and 258(1) of the POEO Act. It is convenient to address the latter first.

1. Sections 257(1) and 258(1) of the POEO Act provide:

257 Occupier of premises responsible for pollution from premises

(1) In any proceedings under this Act, the occupier of premises at or from which any pollution occurs is taken to have caused the pollution, unless it is established that:

(a) the pollution was caused by another person, and

(b) the other person was not associated with the occupier at the time the pollution occurred, and

(c) the occupier took all reasonable steps to prevent the pollution.

A person is associated with the occupier for the purposes of paragraph (b) (but without limiting any other circumstances of association) if the person is an employee, agent, licensee, contractor or sub-contractor of the occupier.

258 Evidence relating to occupier of premises

(1) In any proceedings under this Act, no proof is required (until evidence is given to the contrary) of the fact that a person is, or at any relevant time was, the occupier of any premises to which the proceedings relate.

1. The term "occupier" is defined in the Dictionary to the POEO Act as:

occupier of premises means the person who has the management or control of the premises.

1. Had it been necessary to decide the prosecution causation case based on these statutory provisions, I would not have accepted it. In my opinion, as the defendant submits, the defendant was not the "occupier" as defined because his management or control of the premises, which he otherwise would have had, was relevantly taken away from him by Mr Bailey's stop work notice: see [27]-[28] above.

1. As for the prosecutor's alternative reliance on ordinary principles of causation, I will do no more than identify the legal principles and the submissions. In Royall v The Queen [1991] HCA 27, (1991) 172 CLR 378 the High Court considered issues of causation in the criminal context. Mason CJ agreed at 387 [17] with the statement by Burt CJ in Campbell v The Queen [1981] WAR 286 at 290, (1980) 2 A Crim R 157 at 161 that it is:

enough if juries [are] told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.

1. McHugh J said at 440-441 [23]-[25] (omitting citations):

In criminal cases, the common law has also refused to apply the "but for" test as the sole test of causation. Nevertheless, the "but for" test is a useful tool in criminal law for determining whether a causal link existed between an accused's act or omission and the relevant injury or damage. But before a person will be held criminally liable for his or her act or omission, the causal link between that act or omission and the injury or damage must be sufficiently cogent to justify attributing causal responsibility, ie legal responsibility, to that person. Causation-in-fact is not causation-in- law.

...

Causation is a question of fact: To constitute a cause for the purposes of the criminal law, it is not necessary that an act or omission be the sole or main cause of a wrong. But, as I have indicated, the purpose of the legal doctrine of causation is to attribute legal responsibility, not to determine the factors which played a part in the happening of an event or occurrence. It is for this reason that the common law doctrine of causation has not accepted that a person is criminally responsible for an event or occurrence simply because his or her act or omission was a causa sine qua non of that event or occurrence. If, as a matter of common sense, an ordinary person would not hold an accused's act or omission to be a cause of the event or occurrence, it is irrelevant that it was a causa sine qua non of that event or occurrence.

In most criminal cases, the issue of causation is not controversial. If an accused's act or omission is causally linked with the event or occurrence, it is always only one of the conditions which were jointly necessary to produce the event or occurrence. Ordinarily, however, the application of the common sense test of causation is enough to determine whether the accused's act or omission was sufficiently significant to make him or her "causally responsible" for the event or occurrence in question...

1. In Cittadini v R [2009] NSWCCA 302 the appellant was charged with manslaughter by criminal negligence resulting from the failure of the keel of a yacht that he had been responsible for working on. McClellan CJ at CL (Fullerton and Schmidt JJ agreeing) cited the above dicta from Royall and said that the Crown had to establish to the criminal standard that the alleged omission by the appellant caused the loss of life "by significantly contributing to the failure of the keel": at [84].

1. The prosecutor submits that the defendant's actions were a substantial contributing factor to the pollution event by reason of the following facts:

(a)   he was carrying out the earthworks and fire trail construction;

(b)   the works had been carried for a substantial period of time without any sedimentation controls (since 28 March 2012);

(c)   rain fell in the period between 28 March and the end of May 2012;

(d)   when the defendant belatedly turned his mind to the need for sedimentation and erosion controls, which was on or about 22-24 May 2012, after there had been rain periods and after being approached by the Council, he approached Orchard Floor to assist him. The Orchard report was not certified by an engineer and its plan was patently inadequate in describing proposed pipes (there was uncertainty as to their location and dimensions and there had been no catchment analysis or consideration of rainfall data). Mr McVey conceded that he would have expected sedimentation and erosion controls to be in place, particularly given the potential for stormwater sediment-laden runoff;

(e)   it was not the Council's obligation to do anything to assist the defendant to comply with his obligations. It was not unreasonable for it to seek more detailed information from the defendant;

(f)   the email of 1 June 2012 requested the defendant to address the need for sedimentation and erosion controls for the road construction as at that date, and to refrain from carrying out further works until at least that had been done. That was a reasonable request.

1. The defendant submits that:

(a)   the failure of the sediment controls to fully cope with the rain event on 27 June 2012 and the putative consequential water pollution was not caused by the defendant. It was caused by a combination of the size (depth) of the rain event and the actions of the Council (Mr Bailey) in requiring the defendant in the stop work notice not to install the concrete drainage pipes which would have diverted runoff at intervals from the fire trail onto the generous adjacent grassy filter strips

(b)   alternatively, any causal connection was broken by those matters.

1. The defendant further submits that:

(a)   Looking at the factors identified by the prosecutor, there is no clear identification of acts and omissions having any significant causal nexus with the failure of sediment controls to cope with the rain event on 27 June 2012. The question of causation principally requires consideration of the events between 22 May and 27 June 2012.

(b)   The rain event exceeded the design criteria for the sediment controls, being the 75th (and 85th) percentile five day rain depth event which acts as a design criterion not only for sediment basins but, as Mr McVey maintained, for the whole treatment train of temporary sedimentation controls in the construction of a file trail of this nature.

(c)   To the extent the sediment controls could reasonably have been expected to prevent water pollution in the rain event that occurred, their inability to continue to properly function on 27 June 2012 was caused principally by the omission to install the pipes, as Mr McVey explained. That evidence has never been seriously challenged. The defendant's consultants, required to complete the Orchard report within the seven day time limit imposed by the Council under the first clean-up notice, expressly indicated that the pipes were adequate for their purpose. Mr Bailey never specifically asked for a catchment analysis to confirm that opinion but rejected the proposal and required the works to cease.

(d)   The critical drainage pipes were not installed because the Council, through Mr Bailey, required them not to be installed. The defendant acted reasonably, genuinely attempting to satisfy the demands of the Council and attempting to have the stop work order lifted so that he can install the necessary erosion and sediment controls on the site, but Mr Bailey acted unreasonably in his dealings with the defendant.

(e)   In the above circumstances, criminal responsibility should not be affixed to the defendant for having caused the (putative) water pollution.

(f)   Alternatively, relying upon the same circumstances, any causal connection between the defendant's acts and omissions and the putative water pollution was severed by the intervening acts of the Council and the intervening natural rainfall event which exceeded the relevant design criteria for the sedimentation controls.

1. In reply, the prosecutor submits that it is fanciful to suggest that anyone other than the defendant was the cause of the pollution event. The prosecutor's main points here are:

(a)   The pipes could never address the immediate concern that sediment would be washed off the fire trail because it had already been constructed.

(b)   The defendant acted unreasonably in not having prepared an adequate plan that Council could properly assess. The Orchard report was inadequate, as shown by the additional measures required by Tricend.

1. I have summarised the parties' submissions on the application of ordinary principles of causation but, as stated earlier, it is unnecessary to decide that issue.

ORDERS

1. Both proceedings are dismissed. The exhibits may be returned.

ANNEXURE A (PDF)

ANNEXURE B (PDF)

Amendments

08 January 2015 - -

07 January 2015 - corrected hearing dates in the coversheet

added cases cited to the coversheet

corrected paragraph reference to the orders within the table of contents

Decision last updated: 08 January 2015