Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd; Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd (No 2)

[2017] NSWLEC 147

Land and Environment Court

New South Wales

Medium Neutral Citation:	Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd; Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd (No 2) [2017] NSWLEC 147
Hearing dates:	4 and 5 September 2017
Date of orders:	02 November 2017
Decision date:	02 November 2017
Jurisdiction:	Class 4
Before:	Moore J
Decision:	See directions at [203]
Catchwords:	EVIDENCE - objection to adducing of further evidence - objection said to be based on conclusions in earlier decision in these proceedings - proper understanding of earlier decision did not exclude possibility for further evidence - consent directions for further evidence - late objection to evidence - further evidence permitted DECLARATIONS - road constructed by owner of land on land adjoining not owned by it for the purported satisfaction of condition of development consent - no consent from owner of the land for construction of the road - no separate development consent for construction of road - no ability to rely on development consent granted to owner of the land - breach of s 76A(1)(a) of the Act - both owner of adjoining land and constructor of the road aware that breach would occur - appropriate to make declaration against each DECLARATIONS - if there was the ability to rely on development consent granted to owner of the land upon which the road was constructed, a construction certificate was required and had not been obtained - breach of s 81A(2) of the Act - further, if there was the ability to rely on development consent granted to owner of the land, the terms of condition (16) of the development had not been complied with - breach of s 76A(1)(b) of the Act - in addition, if there was the ability to rely on development consent granted to owner of the land, the road had not been constructed at the location approved in development consent granted to owner of the land - a separate breach of s 76A(1)(b) of the Act - further declarations available but unnecessary DISCRETION - consideration of relevant principles on exercising discretion - owner of land upon which road is constructed wishes removal of road - road not fit for purpose - road would be impediment to carrying out of landowner’s approved development - order for removal of road at joint cost to adjoining landowner and road construction company
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4(1), 76A(1)(a) and (b), 81A(2), 109, 109D(1)(a), 123 and 124 Roads Act 1993, s 3
Cases Cited:	Bass v Permanent Trustee Co Ltd (1999) 198 CLR 344; [1999] HCA 9 Bowyer v Manly Council (1997) NSWLEC (unreported) Hunter's Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government [2017] NSWCA 188 Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd; Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd [2017] NSWLEC 37 O’Brien v Shire of Rosedale (1968) 22 LGRA 262 Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56 Warringah Shire Council v Sedevic (1987) 10 NSWLR 335
Category:	Principal judgment
Parties:	Louisiana Properties Pty Ltd (Applicant in Matter No 322081 of 2016 and Respondent and Cross‑Claimant in Matter No 261922 of 2016) Hakea Holdings Pty Ltd (First Respondent in Matter No 322081 of 2016 and Applicant and Cross‑Defendant in Matter No 261922 of 2016) Caverstock Group Pty Limited (Second Respondent in Matter No 322081 of 2016) Central Coast Council (Third Respondent in Matter No 322081 of 2016 - submitting appearance)
Representation:	Counsel: Mr C Ireland, barrister (Louisiana Properties Pty Ltd) Mr T Hale SC and Mr J Tobin, barrister (Hakea Holdings Pty Ltd) Mr J Denina, solicitor (Caverstock Group Pty Limited)   Solicitors: O’Brien Legal Pty Limited (Louisiana Properties Pty Ltd) Watson Mangioni (Hakea Holdings Pty Ltd) Carneys Lawyers (Caverstock Group Pty Limited)
File Number(s):	261922 and 322081 of 2016
Publication restriction:	No

TABLE OF CONTENTS

Introduction

The requirements for access to the hospital land

The road across Louisiana’s land

Hakea’s need for an easement for asset protection zone

The litigation

The second phase proceedings

Hakea’s Notice of Motion

Hakea’s breach of the EP&A Act

A breach of s 76A(1)(a) - no development consent

If Hakea could rely on Louisiana's development consent

Introduction

Condition (16) of Louisiana’s development consent

The need for a construction certificate

Introduction

Is the road a “building” for the purposes of the EP&A Act?

The decision in Royal Motor Yacht Club

Conclusion on the need for a construction certificate

The effect of the absence of a construction certificate

The non-compliant alignment

Conclusion on s 76A(1)(b) breaches

The absence of an application to reopen by Louisiana

Introduction

Further evidence in the LEC proceedings

Introduction

The proposed evidence

Hakea’s objections

Introduction

The proposed evidence from Mr Francis - the location of the road

The proposed evidence from Mr Francis - the condition of the road

The proposed evidence from Mr Haxsell

The ruling on adducing further evidence

Mr Francis’ evidence - no inconsistency with my earlier decision

My directions in preparation for the further hearing

The expert evidence given by Mr Francis

Introduction

Conclusion

Revegetation

The exercise of discretion

Hakea’s position

Louisiana’s position

The principles in Sedevic

The location and condition of the road

Lot 102 is for sale

The position of the Council

Conclusion on discretion

Caverstock's position

Costs

Disposal of the Supreme Court proceedings

Conclusion

Directions

Judgment

Introduction

1. Prior to 2005, Louisiana Properties Pty Ltd (Louisiana) owned a single allotment of land immediately to the west of the boundary of the Wyong Hospital Health Campus (the hospital land). On 16 August 2005, Louisiana was granted development consent by Wyong Shire Council (now amalgamated with Gosford City Council to form part of the Central Coast Council) (the Council) for the development of an aged persons’ residential facility (on the western portion of its land) and a medical centre (on the eastern portion of its land adjacent to the boundary with the hospital land).

2. Also on 16 August 2005, Louisiana was granted development consent by the Council to subdivide its land - with the western allotment encompassing the site of the proposed aged care facility and the eastern allotment containing the site of the proposed medical centre. Louisiana sold the western allotment whilst retaining the medical centre site for itself.

3. Hakea Holdings Pty Ltd (Hakea) subsequently became the owner of the western of the two allotments - that encompassing the site of the proposed aged care facility.

4. What had now become Hakea’s land had the long frontage to Louisiana Road at its western end. Access to the land which Louisiana had retained was via an axe-handle along the northern boundary of Hakea’s land.

5. In August 2013, Hakea obtained a development consent from the Council to construct an aged persons’ residential facility on its land. Whilst the aged persons’ residential facility proposed by Hakea had a generally similar (but not identical) footprint to that for which Louisiana had been given development consent, Hakea’s proposed development was significantly larger, being of three storeys rather than two.

6. Hakea has constructed its aged care residential facility, whilst Louisiana has not constructed the medical centre.

The requirements for access to the hospital land

7. One of the conditions of development consent for each of the development proposals was that an access road was to be constructed across the vacant western portion of the hospital land to connect with an internal roadway on what was now the Louisiana residual land in order to provide emergency egress/access in times of flooding (as Louisiana Road was liable to be flood‑affected). Although this access was intended to be temporary until Louisiana Road was upgraded to flood-free status, the Council subsequently approved the road provided for in Louisiana's development consent to be a permanent link between Louisiana's land and the facilities located on the hospital land.

The road across Louisiana’s land

8. Hakea had Caverstock Group Pty Ltd (Caverstock) construct a road across Louisiana's land at generally the location provided for in Louisiana's development consent. It did so in purported reliance on a right of access which had been granted by Louisiana to the purchaser of Hakea’s land at the time of subdivision. It did so without Louisiana's permission.

Hakea’s need for an easement for asset protection zone

9. The whole of the Hakea/Louisiana land is mapped under the Wyong Local Environmental Plan 2013 (the WLEP) as being bushfire-prone. There is a band of protected vegetation along the southern boundary of the two sites, which forms part of the mapped fire hazard.

10. One of the conditions of Hakea’s development consent was that it establish an asset protection zone (APZ) to protect its residential aged care development. Part of that APZ needed to be located on Louisiana's land. Negotiations between Hakea and Louisiana, for the granting of an easement by Louisiana to Hakea for establishment of the APZ, failed. The consequence of this was that the Council was only prepared to grant an occupation certificate to permit Hakea to occupy part of its development.

The litigation

11. Arising out of the above described tangled relationship between Hakea and Louisiana, two separate sets of proceedings were commenced. First, Hakea commenced proceedings in the Supreme Court of New South Wales seeking that Louisiana be required to grant it an easement for the creation of the APZ portion that was required on Louisiana's land (the Supreme Court proceedings).

12. Louisiana opposed Hakea’s proposed APZ easement claim and also lodged a cross-claim in the Supreme Court proceedings concerning what Louisiana asserted was Hakea’s trespass in having Caverstock construct the road across Louisiana's property to the boundary with the hospital lands.

13. Louisiana separately commenced proceedings in this Court against Hakea (the LEC proceedings). The LEC proceedings were commenced pursuant to s 123 of the Environmental Planning and Assessment Act 1979 (the EP&A Act) as a consequence of what Louisiana said was Hakea’s unlawful act in causing construction of the road across Louisiana's land.

14. The Supreme Court proceedings were transferred to this Court to be heard together with the LEC proceedings. Hearing of the two matters took place in late 2016 and, on 29 March 2017, I gave my decision on primary aspects of matters in contention in the Supreme Court proceedings and the cross-claim in those proceedings (Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd; Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd [2017] NSWLEC 37) (my earlier decision). I also made provision for further hearings in the LEC proceedings.

15. In my earlier decision, I concluded:

1. Hakea was to be granted an easement over the Louisiana land for the purposes of establishing the necessary APZ required by the Council's condition imposed on Hakea’s development consent. The dimensions of, and compensation for, the easement for this purpose were also determined in my earlier decision;

2. Louisiana's 2005 development consent had been commenced and, to the extent that it envisaged development on what now remained as Louisiana's land, that consent was still operative but was dormant;

3. The alignment of the road to the hospital lands required by Hakea’s development consent was not coincidental with the alignment of the road approved in Louisiana's development consent. This meant that the road constructed by Hakea did not satisfy the Council’s requirement imposed on Hakea;

4. Hakea, in having Caverstock construct the now existing road on Louisiana's land, had trespassed in doing so. I determined the element of Louisiana's cross‑claim in the Supreme Court proceedings seeking exemplary damages against Hakea (awarding Louisiana $30,000). The question of primary relief for the trespass was deferred for further consideration in conjunction with the finalisation of the LEC proceedings; and

5. In the LEC proceedings, the question of what relief, as a matter of discretion, should be granted pursuant to s 124(1) of the EP&A Act was deferred for further hearing.

The second phase proceedings

16. This phase of the proceedings, heard on 4 and 5 September 2017, dealt with the outstanding issues left for future determination by my earlier decision.

Hakea’s Notice of Motion

17. On 22 August 2017, Hakea exercised the liberty to relist, in both the Supreme Court proceedings and the LEC proceedings, a dispute between the parties as to the construction to be given to my orders in my earlier decision.

18. The matter was mentioned before me on 28 August 2017, in advance of the resumed substantive hearing. On that occasion, after hearing from Mr Hale SC, for Hakea, and Mr Ireland, counsel for Louisiana, I gave directions that Hakea put the procedural application into the form of a Notice of Motion by 30 August 2017, to be heard with the substantive proceedings on 4 September 2017. On 30 August 2017, Hakea filed a Notice of Motion seeking the following substantive order:

1. An order pursuant to UCPR Rule 36.16(1) to the effect that the judgment delivered on 29 March 2017 being Louisiana Properties Pty Ltd v Hakea Holdings Pty Ltd; Hakea Holdings Pty Ltd v Louisiana Properties Pty Ltd [2017] NSWLEC 37 be varied, or alternatively, set aside to the extent that the Court did not address the applicant’s submission that the construction of the road by the applicant on the respondent’s land at lot 102 DP1091897, and the clearing of the land for the purpose of constructing that road, was authorised by the respondent’s development consent DA/236/2005.

19. Given that the matters sought to be addressed by the orders proposed in the motion have now been subsumed by the outcomes I have determined to be appropriate on the substantive issues remaining for my consideration, the appropriate outcome of the motion is that it be dismissed. It therefore follows that the orders reflecting the outcomes of these proceedings are to incorporate that position.

Hakea’s breach of the EP&A Act

20. The basis for Louisiana's LEC proceedings is to be found in s 123(1) of the EP&A Act. Relevantly, this provision is in the following terms:

123   Restraint etc of breaches of this Act

(1)     Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.

21. The breach of the Act upon which Louisiana says it relies for the purposes of invoking the jurisdiction of the Court is said to be a breach of s 76A(1)(a) of the EP&A Act. This provision is in the following terms:

76A   Development that needs consent

(1)   General

If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:

(a)   such a consent has been obtained and is in force, …

22. In the final form of Louisiana's Third Further Amended Summons, the declarations, concerning the breach of the EP&A Act sought by Louisiana concerning both Hakea and Caverstock, are in the following terms:

1.   A declaration that the first respondent authorised the carrying out of development on the applicant’s land comprised in Lot 102 in Deposited Plan 1091897 situated at 88 Louisiana Road, Hamlyn terrace without development consent being clearing, earthmoving and the construction of a road when development consent was required pursuant to the Wyong Local environmental Plan 2013 (“LEP”) and section 76A of the Environmental Planning and Assessment Act 1979 for this work on the land which is zoned SP2 Special Infrastructure under the LEP.

2.   A declaration that the second respondent carried out development on the applicant’s land comprised in Lot 102 in Deposited Plan 1091897 situated at 88 Louisiana Road, Hamlyn Terrace without development consent being clearing, earthmoving and construction of a road when development consent was required pursuant to the Wyong Local environmental Plan 2013 (“LEP”) and section 76A of the Environmental Planning and Assessment Act 1979 for this work on the land which is zoned SP2 Special Infrastructure under the LEP.

23. In my earlier decision, I did not expressly deal with the finding of a breach by Hakea and/or Caverstock of s 76A(1)(a) of the EP&A Act. However, there were two indicators contained in the judgment that signalled my view that there had been such a breach. The first of those were references to the need to consider the exercise of discretion pursuant to s 124(1) of the EP&A Act contained in [161], [171], [199], [200], [202] and [203] of my earlier decision.

24. Second, at the conclusion of my earlier judgment, I gave three sets of directions (at [204] and [205]). The first of the directions related to the Supreme Court proceedings initiated by Hakea. The second related to the cross-claim by Louisiana in those Supreme Court proceedings. Relevant to that with which I am now dealing, I also gave directions in the LEC proceedings. Those directions (it being unnecessary to reproduce any of them in full at this point) were clearly focused on the process for dealing with an exercise of discretion in the LEC proceedings. Exercising discretion in the LEC proceedings is a process that arises under s 124(1) of the EP&A Act, a provision in the following terms:

124   Orders of the Court

(1)     Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.

25. It is clear that issues of discretion only arise to be considered if there is, in fact, a breach of the Act with respect to which questions of whether or not discretion should be exercised and, if it is to be exercised, how it is to be exercised.

A breach of s 76A(1)(a) - no development consent

26. However, for abundant caution, I now turn to explain why I am satisfied that Caverstock’s construction, at Hakea’s instigation, of the road across Louisiana's land comprised development (as defined in s 4(1) of the EP&A Act) that was carried out by Hakea and Caverstock without development consent in circumstances where consent for the development was required.

27. In my earlier decision, I explained, at [189]-[198], why the building of the road by Caverstock, at Hakea’s instigation, along the alignment followed was not a road that could be regarded as being in conformity with Hakea’s own development consent. In short, the route followed by the road was not the route approved by the Hakea development consent.

28. In my earlier decision, I also noted that Louisiana had not granted to Hakea Louisiana's consent for this construction. This, in itself, is a sufficient basis upon which to conclude that Hakea could not have had the road constructed in reliance on Louisiana's development consent.

29. My earlier decision said, at [167] (emphasis added to identify the relevant portion for the current purpose):

I am satisfied that Hakea’s activity in constructing the road in circumstances where there is an inference available from the email chain between Hakea and Caverstock that Hakea knew that a further easement would be required to provide a basis for the construction of the road absent construction of Louisiana’s development does warrant some award of exemplary damages for punitive purposes.

30. The e-mail chain comprised the first material in Exhibit 2 - and was dealt with in Mr Ireland’s submissions at Transcript, 16 December 2017, page 303, line 49 to page 306, line 21. In particular, he submitted (Transcript, page 306, lines 6 to 11):

Once again, at the time all this was being said, Hakea's solicitors were actively negotiating a right of carriageway over lot 102 with Louisiana and my client's instructing solicitor, yet Caverstock is being asked not to wait for that to occur, but to go on and do the work and there's no mention here, no mention in any of these exchanges of the right of way in the deposited plan on which Hakea now relies to support, it says, its right to go on and build the road.

31. It also follows that, as Caverstock actually undertook the construction work in circumstances where this e-mail chain demonstrates that Caverstock, too, was on reasonable notice that there was no proper foundation for Hakea to have requested it undertake construction of the road, the inference is readily able to be drawn that Caverstock, as well as Hakea, has shared responsibility for undertaking this construction in breach of s 76A(1)(a) of the EP&A Act.

32. It is also clear that negotiations were taking place between Hakea and Louisiana in March to May 2015 about a further possible right of carriageway being granted by Louisiana to Hakea to permit construction of a road by Hakea (e-mails at Exhibit B , folios 585 to 588). An inference is to be drawn from the e-mails that Hakea was on notice that a further right of carriageway was required to permit Hakea to have the road constructed.

33. Therefore, declarations against Hakea and Caverstock that each breached s 76A(1)(a) of the EP&A Act are appropriate to be made.

If Hakea could rely on Louisiana's development consent

Introduction

34. Although I have set out why Hakea cannot rely on Louisiana's development consent as a basis for causing Caverstock to construct the road, in case I am wrong, I turn to consider what would be the position if Hakea was, potentially, able to avail itself of Louisiana's development consent.

35. I do this because the position was put on behalf of Hakea that it had constructed the road in reliance on Louisiana's development consent. It therefore follows that the question of whether or not Caverstock’s construction of the road at Hakea’s instigation, was compliant with Louisiana’s consent (on the assumption that reliance on it was available) requires consideration.

36. If available but the construction of the road was not in compliance with Louisiana’s consent, one or more breaches of s 76A(1)(b) of the EP&A Act will arise. The statutory provision is in the following terms:

76A   Development that needs consent

(1)    General

If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:

(a)   …, and

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

37. For the reasons which follow, I am satisfied that there are two separate bases upon which to conclude that the construction of the road by Caverstock, at Hakea’s instigation, and along the route undertaken by Caverstock, was in breach of s 76A(1)(b) of the EP&A Act.

38. The first basis is a consequence of a breach of condition (16) of Louisiana's development consent whilst the second arises as a consequence of the fact that the road alignment upon which Caverstock constructed the road at Hakea’s instigation, is not along the alignment approved by the Council in granting Louisiana's development consent.

Condition (16) of Louisiana’s development consent

The need for a construction certificate

Introduction

39. It is now necessary to consider whether or not a construction certificate was required to be issued prior to the commencement of construction of any road on Louisiana's land pursuant to Louisiana's development consent. Failure to obtain a construction certificate - if required - is itself a breach of s 81A(2) of the EP&A Act.

40. This requires consideration of a number of the provisions of the EP&A Act. The first of these is s 81A(2)(a), a provision that says, relevantly:

81A   Effects of development consents and commencement of development

(1)   ...

(2)   The erection of a building in accordance with a development consent must not be commenced until:

(a)   a construction certificate for the building work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited certifier, and

(b)   the person having the benefit of the development consent has:

(i)   appointed a principal certifying authority for the building work, …

41. It is clear that the person having the benefit of the development consent, and thus able to invoke commencement of the processes for the issuing of a construction certificate by a principal certifying authority, is Louisiana and not Hakea. There is no evidence before me that would demonstrate that Louisiana had appointed a principal certifying authority.

42. There is no evidence that such a construction certificate has been issued and the proceedings have been conducted on the basis that a relevant construction certificate has, in fact, not been issued.

Is the road a “building” for the purposes of the EP&A Act?

43. It is therefore necessary to consider whether or not construction of a road in these circumstances was not permitted prior to the issuing of a construction certificate by an appointed principal certifying authority.

44. To address this question, it is necessary to consider whether or not the road (as constructed) constituted a building for the purposes of s 81A(2) and, if it was a building, whether its construction constituted “erection” for the purposes of that provision. In addressing the first of these questions, it is first necessary to set out the definition of “building” contained in s 4(1) of the EP&A Act. This definition is in the following terms:

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.

45. If the road is to be regarded as falling within this definition, the only basis upon which it can do so would be if the road was appropriately to be regarded as a “structure” for the purposes of the definition.

46. I raised with Mr Hale the issue of whether or not the road should be regarded as a “structure” for the purposes of this definition. He submitted that it did not and he took me to the only case he had been able to find which he considered dealt with the issue.

47. In Bowyer v Manly Council (1997), unreported, Talbot J dealt with the question of whether a road might be regarded as a “structure” in a limited statutory context. His Honour said:

The control and regulation of roads has been removed from the ambit of the Local Government Act and is now to be found within the Roads Act 1993. The Roads Act 1993 commenced with the repeal of the Local Government Act 1919. Although not expressed as a cognate Act, so far as the Court is able to determine, it was clearly introduced as part of the same parcel of legislation introduced with the Local Government Act 1993. By pursuing the purposive approach, it is open for the Court to decide that the legislature did not intend that a road would be contemplated by the legislature as being a structure within the context of a building for the purposes of s68 of the Local Government Act 1993. (Transcript, 5 September 2017, page 97, lines 16 to 37)

48. Talbot J reached the conclusion that that road was not a “structure”.

49. After Mr Hale had taken me to Talbot J's decision, I raised with him the question of whether the statutory context within which his Honour had dealt with that issue was a confined one and one which might not be applicable in these circumstances. The transcript records (Transcript, 5 September 2017, page 97, lines 22 to line 40):

HIS HONOUR: But it may be and I would need to go and look at it as to whether "road" itself is defined in the Roads Act. It may well be confined to public roads, I don't know.

HALE: I don't think a road is defined by reference.

HIS HONOUR: Anyhow, that's a matter ‑ the Act will speak for itself on that point. It's just not clear from what his Honour was dealing with although his Honour was dealing with the dictionary to the Roads Act, he refers to "roadwork" but he doesn't tell us what "road" might be.

HALE: Roads don't have to be ‑ to be a road, it doesn't have to be a public road, is, I think, in.

HIS HONOUR: I'm not saying it does but I'm saying for the purposes of applying the definition of "roadwork" in the Roads Act to which his Honour Talbot J refers, it might be that the Roads Act defines "road" for the purposes of roadwork in the Roads Act. I don't know, I'll have to have a look at that. Whether that takes me anywhere is another matter.

50. I have, therefore, turned to consider the provisions of the Roads Act 1993 (the Roads Act). The Roads Act does not define “road” (although it does provide definitions for a wide variety of types of road), so it is then necessary to seek other guidance from within it as to the purpose of the statutory framework provided by it. The appropriate starting point, I am satisfied, is to examine the objectives of the Roads Act. These are set out in s 3, a provision in the following terms:

3   Objects of Act

The objects of this Act are:

(a)   to set out the rights of members of the public to pass along public roads, and

(b)   to set out the rights of persons who own land adjoining a public road to have access to the public road, and

(c)   to establish the procedures for the opening and closing of a public road, and

(d)   to provide for the classification of roads, and

(e)   to provide for the declaration of RMS and other public authorities as roads authorities for both classified and unclassified roads, and

(f)   to confer certain functions (in particular, the function of carrying out road work) on RMS and on other roads authorities, and

(g)   to provide for the distribution of the functions conferred by this Act between RMS and other roads authorities, and

(h)   to regulate the carrying out of various activities on public roads.

51. It is clear from these objectives, in my view, that the Roads Act is intended to address, solely, matters relating to public roads constructed by public authorities (either the RMS or other road authorities) and is not intended to regulate or cover a purely private road of the type envisaged by Louisiana's development consent. Given that Talbot J was dealing with a road that fell within this statutory regime (this being clear, from the totality of the paragraph from his Honour's judgment earlier quoted), the emphasised conclusion reached by his Honour clearly only applies to public roads and, therefore, is to be distinguished from the circumstances here arising.

52. As a preliminary point, although not requiring further consideration, it is to be noted that the WLEP, in its dictionary, provides that “building” has the same meaning as in the EP&A Act.

53. I now turn to consider, as a matter of general principle, whether the road constructed by Caverstock, at Hakea’s instigation, should be regarded as being a “structure” for the purposes of being encompassed by the definition of “building” in s 4(1) of the EP&A Act.

54. Mr Hale took me to the first element of the Macquarie Dictionary (the Macquarie) definition of “structure”. It is in the following terms:

noun 1. mode of building, construction, or organisation; arrangement of parts, elements or constituents.

55. I reminded Mr Hale that the Court of Appeal had recently cautioned overreliance on dictionaries, as explained by Basten JA in Hunter's Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government [2017] NSWCA 188 at [77]-[78]):

77.   … Resort to dictionaries to determine the meaning of a word used in a legal context is rarely favoured. Such judicial disfavour is not a result of some dismissive or precious attitude towards the compilers of dictionaries. The point is rather that dictionaries reflect common usage and common usage may not be reflected in a particular statutory context. Thus, it used to be said that the ordinary meaning of a word, other than a technical term, is a question of fact, whereas the construction of the statutory provision in which the word is found is a question of law. Since Collector of Customs v Agfa-Gevaert Ltd that distinction is no longer applied. As explained by Lord Hoffmann in R v Brown, referred to in Agfa-Gevaert:

“The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole.”

78.   That is not to say that dictionaries may not be helpful, or are not used, although they are rarely referred to in judgments. Their function is, however, limited.

56. It is to be observed that Mr Hale did not take me to the second string in the Macquarie definition of “structure”. Although, as noted above, a cautious approach to dictionary definitions is required, I do consider it appropriate to set out this second string in the Macquarie definition. It is in the following terms:

2. something built or constructed; a building, bridge, dam, framework, etc.

57. For the present purposes, all I draw from these two elements of this dictionary definition is that there is a deal of breadth of its potential application, including dams which, in the broad, can include significant rock or earthworks’ dams and not merely behemoth dams, such as those at Warragamba or Cataract, retaining massive water volumes for human or industrial consumption.

58. Mr Hale said the following (Transcript, 5 September 2017, page 94, lines 1 to line 7):

HALE: One has to be very careful because it's an ordinary English ‑ when there's an ordinary English word, but the real problem is when one slavishly applies it, but we see a structure, a mode of building construction or organisation, et cetera. Now, the starting point, as is apparent from Royal Motor Yacht Club is because the definition begins with a building in the way I've identified, that one has to keep that very much in mind in construing what a building is, where is includes a structure or part of structure.

The decision in Royal Motor Yacht Club

59. Having said that, Mr Hale then took me to the decision of Preston CJ in Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council [2017] NSWLEC 56 (Royal Motor Yacht Club), a decision to which I had drawn his attention prior to the luncheon adjournment as providing some contemporary judicial guidance that might assist in considering whether or not this road should be regarded as a “structure” for the purposes of the EP&A Act.

60. Mr Hale submitted (Transcript, 5 September 2017, page 94, line 5 to page 97, line 50) that, in my consideration of the reasoning of his Honour in Royal Motor Yacht Club, I would not conclude that this road was a “structure” for the purposes of the definition of “building” in s 4 of the EP&A Act.

61. It is unnecessary to set out, in any detail, Mr Hale’s analysis of, and submissions concerning what I should draw from, the relevant portion of Royal Motor Yacht Club. It is sufficient for me to observe that, for the reasons discussed below, I am satisfied that a proper understanding of the matters explained by his Honour leads me to the conclusion that the road constructed by Caverstock, at Louisiana's instigation, is properly to be regarded as a “structure” and, thus, properly encompassed within the definition of “building” in s 4 of the EP&A Act.

62. In Royal Motor Yacht Club, Preston CJ, in the context of determining whether swing moorings were structures or not for the purposes of the relevant environmental planning instrument, reviewed a range of authorities between [153] and [169] before concluding, on the facts with which he was engaging, that he was not dealing with structures.

63. At [155], His Honour discussed, with approval, the decision of Gillard J in O’Brien v Shire of Rosedale (1968) 22 LGRA 262. Preston CJ extracted, from page 267, relevantly, three characteristics of structures and applied them to the circumstances with which he was dealing. Those characteristics are equally applicable in these circumstances requiring consideration about the road constructed by Caverstock, at Hakea’s instigation, across Louisiana's land. It is, therefore, appropriate to set them out, sequentially, with an analysis of their applicability to the circumstances which here arise.

64. The first characteristic is that:

… the structure is something which is constructed, involving the notion of bringing together a number of distinct and separate physical components which, when constructed or brought together, form or make some other substantial object at a fixed site and having some utility value.

65. Although the utility value of the road, as constructed, at best is of extremely limited functionality (see later discussion of the Expert Report of Mr Peter Francis (Mr Francis)), nonetheless, the road has been constructed using imported material (cement or fly-ash slurry - first dot point of (7) of Mr Francis' Expert Report); has involved cut-and-fill (Figure 7a showing the condition of the pavement as at September 2015 - Mr Francis' Expert Report); and contains at least two piped drainage culverts (figures 2 and 8 of Mr Francis' Expert Report). These various aspects of the road demonstrate satisfaction of the first identified characteristic of a structure.

66. The second characteristic is:

… the mere fact that the new physical object so constructed rested by its own weight on the soil did not necessarily and of itself alter its character as a structure.

67. It is self-evident that this road does not merely rest by its own weight on the soil but is by virtue of the construction techniques employed (including the cut‑and‑fill shown in Figure 7a of Mr Francis' Expert Report). The road has been integrated into and forms part of the fabric of this portion of Louisiana's site.

68. Finally, the third characteristic is:

… there must, however, be an intention on the part of the builder at the time of the erection that the new object brought into existence will remain permanently on its site on a permanent foundation …

69. It is also self-evident that Caverstock and Hakea both intended that the road, as constructed, would remain permanently on its site, as the continuation of the road’s existence was (at least in Hakea’s eyes) necessary at that location for the purposes of satisfying the requirement in Hakea’s development consent for a link between Hakea’s aged care facility and the hospital lands to the east (by traversing Louisiana's land).

70. The road constructed by Caverstock, at Hakea’s instigation, satisfies, on the facts, each of these three characteristics of being a “structure”. Mr Hale did not submit that the road had not been “erected” as that word might relevantly be understood in the definition of “building”. However, I am nonetheless satisfied that it would fall within that element of the definition had this been contested.

Conclusion on the need for a construction certificate

71. It follows that the road constructed by Caverstock, at Hakea’s instigation, is a structure for all relevant purposes of the definition of “building” in the EP&A Act. Satisfaction of this definition means that the road was an activity which required the issuing of a construction certificate prior to its construction and that, given that no such certificate was sought or obtained from the Council and no other principal certifying authority who might issue such a certificate had been appointed, the construction of the road was a breach of s 82A(2) of the EP&A Act.

The effect of the absence of a construction certificate

72. The first basis to conclude that Louisiana’s development consent provides no assistance to Hakea (whether or not Louisiana permitted it) is to be found in the terms of condition (16) of Louisiana's development consent. This condition is in the following terms:

16.   Prior to the issue of a Construction Certificate for the project, the layout and design for the part of the link road within and up to the eastern boundary of Lot 102 DP 1091897 is to be submitted to and approved by Council. All works to be designed in accordance with AS 2890. The pavement is to be designed to withstand all proposed loads including construction loads.

73. It is abundantly clear that this condition imposes three mandatory prerequisites before construction of the road could commence. The first of them is the submission to, and approval by, the Council of plans for Louisiana’s alignment road prior to the issuing of a construction certificate prior to commencement of construction for “the project”. The second is compliance with Australian Standard 2890 (AS 2890), and the third is the load design standard required for the road.

74. There is no evidence of any plans for the road constructed by Caverstock, at Hakea’s instigation, were submitted to the Council at all, let alone that they had been considered and approved by the Council.

75. Given that Hakea purports to rely on Louisiana's development consent as authority for Caverstock’s construction of the road, even if the fact that Louisiana did not consent to the construction of the road is set aside, neither of the two conditions precedent contained in condition (16) of Louisiana's development consent have been satisfied if a construction certificate was required before the road constructed by Caverstock, at Hakea’s instigation, was built.

76. I have explained above why a construction certificate was required prior to construction of the road. No certificate was obtained. This resulted in the first breach of condition (16) of Louisiana’s development consent.

77. There is no evidence as to compliance with AS 2890 - and Mr Francis, as later noted, does not address this - I therefore set this requirement aside.

78. However, as later set out in detail, Mr Francis’ uncontradicted evidence clearly shows that the road cannot be regarded as “designed to withstand all proposed loads including construction loads” - a second breach of condition (16) of Louisiana’s development consent.

79. Each of these breaches of condition constitutes a sufficient basis to conclude that (if Louisiana’s development consent was available to Hakea) Hakea caused the road to be constructed in breach of the consent and thus in breach of s 76A(1)(b) of the EP&A Act.

The non-compliant alignment

80. As I foreshadowed at the commencement of this discussion, as to whether or not Hakea could rely on Louisiana's development consent, the second basis upon which it can be seen that the road constructed by Caverstock, at Hakea’s instigation, was not constructed in accordance with Louisiana's consent comes from the alignment of the road actually constructed when compared to the alignment of the road that had been approved by the Council. It is unnecessary, at this point, to set out the detail of the non‑compliances; those are dealt with later in my consideration of the evidence given by Mr Francis, a consulting engineer engaged by Louisiana to assess the road’s construction and utility. That discussion is set out at [126]‑[156] below.

81. It is sufficient, for this present purpose, to note that the constructed road departs from the alignment approved by the Council in a sufficient fashion so as to constitute a separate basis for concluding that the road was constructed other than in accordance with the terms of Louisiana's development consent. This, if necessary, would provide a second basis for concluding that construction of the road was in breach of s 76A(1)(b) of the EP&A Act.

Conclusion on s 76A(1)(b) breaches

82. It is obvious that the question of whether the road constructed by Caverstock, at Hakea’s instigation, should be regarded as a “structure” engaged consideration of questions of fact and degree. On balance, having regard to the nature of that which has been constructed, and the methods that have necessarily been engaged in its construction (including the importation of the cementatious material to form the surface of the road) and having regard to the length over which it has been constructed, it is appropriate to conclude that this road is a structure. It therefore follows that:

1. first, the road is a structure which falls within the definition of a building in the EP&A Act;

2. as a consequence, the road could not be constructed prior to the obtaining of a construction certificate for Louisiana's project;

3. no construction certificate for the project for which Louisiana had been given consent by the Council - a breach of s 82A(2) of the EP&A Act;

4. the failure to satisfy the at least two of the preconditions in condition (16) of Louisiana's development consent meant that the road, if Louisiana's development consent was potentially available, was constructed in breach of that consent on this basis - a breach of s 76A(1)(b) of the EP&A Act; and

5. second, the construction by Caverstock of the road along an alignment which was not the alignment approved for a road pursuant to Louisiana's development consent provides a second, separate basis for concluding that, if Louisiana's development consent was available to Hakea, the road was constructed in breach of that development consent - a separate breach of s 76A(1)(b) of the EP&A Act.

83. On each these separate bases, if I am wrong in my earlier expressed conclusion that a declaration should be made that Caverstock’s construction of the road, at Hakea’s instigation, was a breach of s 76A(1)(a) of the EP&A Act because of not having development consent for construction of the road, there are two separate and sufficient bases why alternative declarations could be made that Caverstock’s construction of the road, at Hakea’s instigation, was in breach of Louisiana's development consent and thus in breach of s 76A(1)(b) of the EP&A Act.

84. As explained above, there would also be further separate bases for declarations founded on a breach of s 82A(2) of the EP&A Act

The absence of an application to reopen by Louisiana

Introduction

85. At the commencement of the hearing on 4 September 2017, Mr Hale advanced the proposition that, absent an application by Louisiana to reopen matters which Hakea considered had been determined in my earlier decision, there was no basis upon which Louisiana should be permitted to adduce further evidence in the LEC proceedings. It is to be noted that no such application to reopen has been made by Louisiana.

86. Mr Hale submitted that three matters had been determined by me in my earlier decision and that the findings on them (as identified by Mr Hale by reference to my earlier decision) precluded what he said were such findings from being further contested by Louisiana during this phase of the proceedings.

87. The conclusions he said were determinatively to be derived from my earlier decision were:

1. The road constructed by Caverstock, at Hakea’s instigation, was along the alignment provided for in Louisiana's 2005 development consent;

2. The road constructed by Caverstock, at Louisiana's instigation, had been properly constructed and was, therefore, fit for purpose; and

3. The evidence given by Mr Ergys Alliu, from Total Earth Care, in his reports of 29 February 2016 (Exhibit B, Tab 43,), 25 August 2016 (Exhibit C, Tab 62), and, particularly, his affidavit of 22 June 2017, defined the parameters of what would require to be undertaken if I were to conclude that the road should be removed. Mr Hale also submitted that the costings contained in the second of the affidavits from Mr Alliu provided an appropriate basis upon which I should deal with the question of the cost of removal, if I was to conclude that such removal should be required.

88. Before addressing these propositions, I should observe that I proposed to Mr Hale, that, if I was to accept his submission with respect to the pricing for removal of the road and I was to require its removal, it would be appropriate to adjust the later Total Earth Care removal price by the application of interest accruing on it, at the statutory interest rate, until a date I would specify.

89. Mr Hale indicated that such a course would be appropriate if I were to conclude that such a path should be followed (Transcript, 4 September 2017, page 51, lines 50 to page 52, line 16):

HIS HONOUR: Given that the Total Earth Care prices that are in evidence are at an earlier point in time than now and that, at least, potentially on one view of matters the second of those two prices might act as a limiting cost subject to statutory interest from that time so that's perhaps a contestable view but nonetheless it is a potentially available view, would it be, if I were minded to it, within power, my exercise of my discretion to order Hakea to pay the appropriate amount into Court and only have that amount released to Louisiana when Louisiana had undertaken the works?

IRELAND: In my submission that would be‑‑

HIS HONOUR: Discretion under 124.

HALE: I don't like to interrupt my friend.  If your Honour did so order we would make arrangements for the money to be paid to Total Earth Care in accordance with their quote when the work has finished to make some arrangements to secure that.

90. In his submission in support of the proposition that evidence on the three matters should not be permitted in this phase of the proceedings, Mr Hale relied on what was said by the plurality at [57] of the decision of the High Court in Bass v Permanent Trustee Co Ltd (1999) 198 CLR 344; [1999] HCA 9.

91. It is unnecessary to set out in full the passage to which he referred me. I accept that, to the extent that I made any such a concluded determination in my earlier decision, I ought not permit Louisiana to adduce further evidence on such a topic during this phase of the proceedings.

92. As I indicated to Mr Ireland, with respect to the affidavit of Mr Ergys Alliu, from Total Earth Care, dated 22 June 2017, that I was satisfied that such evidence was not permissible absent leave to reopen.

93. The consequence of that, I put to Mr Ireland, was that the evidence established, as at the date of the 25 August 2016 updated Total Earth Care quote of Mr Alliu (Exhibit C, Tab 62, folios 821 to 837), the appropriate costings for removal of the road and of revegetation (subject to my determination of the question of whether or not revegetation was appropriate).

94. I indicated that the appropriate approach to take, founded on that evidence, on the question of consequences for Hakea if I was to conclude that the appropriate exercise of discretion required the removal of the road was that Hakea’s quantum liability would be limited to the sum of $142,983.10 (Exhibit C, updated Total Earth Care quote, folio 835), plus interest at the statutory rate from the date of that affidavit.

95. Mr Ireland accepted (Transcript, 4 September 2017, page 17, line 1 to line 17) that this would be an appropriate course of action for me to follow and, as a consequence, he did not press admission of the further Total Earth Care evidence.

Further evidence in the LEC proceedings

Introduction

96. I now explain in more detail why I have concluded that there is no barrier arising from my earlier decision that would prevent Louisiana from adducing further evidence (contained in the affidavit of Mr Francis) on the question of the location of the road constructed by Caverstock, at Louisiana's instigation, and the relationship of the route along which it had been constructed when compared to the route of the proposed road provided for in Louisiana's 2005 development consent (subsequent modifications to that consent being irrelevant on this point).

97. I also set out in the next section the reasons why the more general engineering evidence proposed to be given by Mr Francis concerning the construction of the road; its present condition and its potential utility (or lack thereof) to Louisiana as an element necessary for the implementation of the medical centre development provided for in Louisiana's development consent was to be permitted.

98. I also deal, in more limited fashion, with why I permitted evidence from Mr Peter Haxsell, a director of Louisiana (Mr Haxsell) to be adduced.

99. As earlier noted, Mr Hale objected to Louisiana being permitted to adduce any further evidence in the LEC proceedings. As a consequence, the first morning was engaged with this issue. In order to permit the substantive matters requiring my consideration to be dealt with in a timely fashion, I indicated that I would determine whether or not to permit Louisiana to adduce further evidence - and, if so, the scope of that evidence - after the luncheon adjournment on the first day, but that, having done so, I would provide more fulsome reasons for doing so in this decision.

100. After the luncheon adjournment, I indicated that I proposed to permit Louisiana to adduce evidence from two witnesses (Mr Francis and Mr Haxsell), but that that ruling was confined to permitting evidence that went to the question of the exercise of discretion pursuant to s 124 of the EP&A Act only and that Mr Hale's right to object to anything he considered strayed beyond the confines of such evidence was preserved. These are my reasons for permitting Louisiana to adduce additional evidence on discretion.

The proposed evidence

101. Louisiana had filed and served two further affidavits that it proposed to rely on for this phase of the LEC proceedings. Those affidavits were from:

1. Mr Francis, a consulting engineer, who had inspected the road constructed by Caverstock, at Hakea’s request. This affidavit was dated 22 June 2017 and dealt with the state of the road; the nature of its construction; its precise location when compared to the location of the road approved in Louisiana's development consent; and its fitness for purpose; and

2. An affidavit from Mr Haxsell. This affidavit, dated 21 June 2017, addressed, primarily, what was said to be Louisiana's intention to effect removal of the road in the event that no order was made that required the removal of the road.

Hakea’s objections

Introduction

102. Hakea objected to any new evidence being adduced. Given that which I have set out above concerning the proposed new Total Earth Care evidence, it is unnecessary to discuss that proposed evidence further.

103. I have earlier set out, in general terms, the scope of the evidence proposed to be adduced from Mr Francis. Mr Hale's objection to this evidence was that the primary aspects proposed to be dealt with had been determined by me in my earlier decision and that, as a consequence, there was no scope for this further evidence absent Louisiana being granted leave to reopen.

The proposed evidence from Mr Francis - the location of the road

104. Mr Hale submitted that, in my earlier decision, I had dealt with the question of where Hakea had constructed the road when compared to the location of the road approved by Louisiana's development consent and that further evidence on this point was unnecessary. He relied generally on [187] and [188], in my earlier decision, in support of this proposition. Each of those elements comprised introductory remarks to the reproduction of images that illustrated the point being made. It is unnecessary, for the purposes of this decision, to reproduce the images that were being explained, but it is appropriate to reproduce the explanatory comments that preceded each of them. In the first instance, at [187], I wrote:

As is a matter in contest in these proceedings in a number of aspects and as earlier noted, Hakea commissioned Caverstock to construct a road from the eastern edge of Lot 101 across Lot 102, along a route that can be described as generally coinciding with Louisiana’s approved route for connection to the western boundary of the Wyong Health Campus land. [emphasis added]

105. This was followed by what I wrote at [188]:

An air photo, in evidence for bushfire purposes, shows where Caverstock has constructed the road at Hakea’s instigation. As can be seen, this road generally coincides with the route approved on the Louisiana plans. [emphasis added]

106. The evidence proposed to be adduced from Mr Francis included, as Figure 4 of the report (later reproduced at [146] of this judgment), the relevant element of Louisiana's approved development application plans overlain on an air photo showing the location of the road constructed by Caverstock, at Hakea’s request. This depiction, Mr Ireland submitted, was relevant and appropriate to be permitted as it provided specific and precise information concerning the location of the road, whereas the findings that I had made in my earlier decision had dealt with the question of where the road was generally located.

The proposed evidence from Mr Francis - the condition of the road

107. Mr Hale's objection to the evidence proposed to be given by Mr Francis concerning the condition of the road (construction methodology, fitness for purpose, condition as at the date of his inspection in April 2017 etcetera) was that I had, in my earlier decision, made a finding that dealt with those matters and that Louisiana should not be permitted to adduce evidence that sought to contest that finding. The portion of my earlier decision that Mr Hale relied upon for the purposes of this objection was the content of [153], which was in the following terms:

There is no evidence that would suggest that that which has been constructed by Caverstock at Hakea’s instruction has not been properly and adequately built. In addition, there is nothing that would point to any element of Caverstock's activities that could be regarded as breaching any of the other responsibilities imposed by (2) as set out in Part 14 of Schedule 8 reproduced above. In that regard, I am satisfied that that which has been constructed by Caverstock clearly falls within that which is permitted to be done, provided it is done for a purpose permitted by the statutory terms of a Right of Access. [emphasis added]

The proposed evidence from Mr Haxsell

108. The evidence proposed to be adduced from Mr Haxsell concerned a resolution of the Board of Louisiana concerning its intention to remove the road whether or not Hakea was required to do so.

The ruling on adducing further evidence

109. I rejected these objections, ruling that Mr Francis and Mr Haxsell should be permitted to give evidence. I did so for two reasons - the first is specific to Mr Francis’ evidence, whilst the second applied to both proposed witnesses.

Mr Francis’ evidence - no inconsistency with my earlier decision

110. First, the statement that, for the purposes of my earlier decision, there was no evidence concerning the state of the road did not constitute any determination that there was no possible basis upon which it was appropriate to have evidence concerning the condition of the road. It merely reflected, factually, the position of the evidence at the conclusion of the first-phase hearing.

111. Second, the statement in the opening sentence of [153] of my earlier decision could not be construed as any acknowledgement by me that the road constructed by Caverstock satisfied the necessary design prerequisites required by condition (16) of Louisiana's development consent (on the basis that Hakea was, at that time, seeking to rely on Louisiana's development consent as one foundation for it being permitted to have the road constructed).

112. This element of my earlier decision also could not be construed as any general fitness for purpose comment (in the context of Hakea’s submission that it was entitled to have the road constructed pursuant to its right of access).

My directions in preparation for the further hearing

113. At [205] of my earlier decision, I gave directions requiring the parties to settle a procedural framework to prepare for this second-phase hearing. Direction (3) was in the following terms:

(3)   Should either party propose to rely on any additional evidence on the question of discretion, the filing and serving of such evidence is to be provided for in the timetable;

114. It is clear, from the terms of the direction, that further evidence was contemplated by me as being appropriate for this second-phase hearing.

115. On 15 June 2017, at a mention of the matter, a timetable containing the required preparatory directions was handed up for my endorsement. Those directions were made by consent. The first of those directions was in the following terms:

The Applicant file and serve any further evidence in relation to discretion and relief by 30 June 2017 as outlined in the affidavit sworn by Patrick Joseph O’Brien on 13 April 2017.

116. During the course of the luncheon adjournment on the first day of this phase, in this phase of the proceedings, I interrogated the Court's electronic record system and discovered that Mr O'Brien's affidavit of 13 April 2017 had not been filed in the proceedings. In response to that, Mr Ireland filed a copy of that affidavit in Court, and it was read without objection by Mr Hale. It is clear from (2) to (6) of that affidavit that the evidence proposed to be encompassed by direction (1) comprised the three affidavits then the subject of Mr Hale's objections.

117. Having set out the directions that encompassed permitting the parties to the proceedings to file and serve additional evidence, if they wished to do so, for this phase of the proceedings, it is appropriate to confirm why that was permitted. It is clear from any reasonable reading of my earlier decision that that decision was confined to the necessary legal and factual issues requiring to be addressed in Hakea’s successful claim to be entitled to an easement for the creation of an APZ to protect the aged persons’ residential care facility constructed on Lot 101 in satisfaction of the Council's requirement in Hakea’s development consent for such an APZ. It is to be recalled that such an APZ was a mandated prerequisite to Hakea obtaining an occupation certificate for the totality of its development.

118. To the extent that the first-phase proceedings dealt with Louisiana's cross‑claim in the Supreme Court proceedings and the LEC proceedings commenced by Louisiana, my earlier decision dealt with, and made determinations about, the location of the road constructed by Caverstock, at Hakea’s instigation, in imprecise terms, noting merely that it was generally in the location of the road approved for Louisiana's 2005 development consent.

119. Further, my conclusion that there was no evidence that Caverstock had not constructed the road properly (set out at [153]) made that simple observation in the context where evidence of the adequacy or otherwise of Caverstock's construction of the road would only arise for consideration on the question of exercise of discretion pursuant to s 124(1) of the EP&A Act in the event that that required consideration in the LEC proceedings.

120. As my conclusion in my earlier decision was that questions of discretion did arise, provision was made for further evidence as earlier set out, and, pursuant to that provision, Louisiana filed and served the affidavit of Mr Peter Francis to which was attached his Expert Report concerning the state of the road constructed by Caverstock.

121. I have earlier explained why Mr Ireland did not seek to rely on the further evidence from Mr Alliu and it is unnecessary to canvass that position further. However, with the proposed evidence from Mr Francis, it was clear that it addressed matters about which I had not expressed definite conclusions and which were matters relevant to my exercise of discretion pursuant to s 124 of the EP&A Act, as later discussed. This evidence fell, precisely, within the scope of the directions I made in [205](3) of my earlier decision.

122. Even had I not reached that conclusion, it is to be observed that direction (1) of 15 June 2017 (observed in the context of the content of Mr O'Brien's affidavit), coupled with the fact that the objection on behalf of Hakea to the leading of the evidence was only made by letter from Mr Hale's instructing solicitors dated 1 September 2017, meant that, in any functional sense, Hakea had effectively waived its right to objection, as a general proposition, to the adducing of further evidence by Louisiana.

123. Although the proposed evidence from Mr Haxsell was of limited (if any) utility in this phase of the proceedings, that utility would go to weight rather than admissibility on the basis Mr Hale was putting in his objections. I therefore permitted his evidence for the same general reasons as for Mr Francis’ proposed evidence.

124. For those reasons, I concluded that it was appropriate to permit evidence from Mr Francis and Mr Haxsell (whilst preserving Hakea’s rights to object to any evidence that went beyond matters going to the exercise of discretion).

125. That which was written at [153] of my earlier decision did not say that (and did not make a finding that) the road constructed by Caverstock was one which was fit and proper for use. The statement made is clearly illustrative of the proposition that, properly construed, a double negative does not automatically assert what might superficially appear to be an implied positive. The absence of evidence is not evidence of absence.

The expert evidence given by Mr Francis

Introduction

126. Mr Francis is a director of H&H Consulting Engineers Pty Ltd trading as Henry & Hymas. Mr Francis has a degree in civil engineering with over 19 years' experience in the area of urban development and pavement design.

127. Mr Francis was instructed by Louisiana's legal representative to prepare an expert report on the road constructed by Caverstock, at Hakea’s direction. The matters which he was requested to report upon are set out later. His Expert Report (attached to his affidavit of 22 June 2017) included the necessary acknowledgements of his responsibilities as an expert giving evidence in these proceedings.

128. His Expert Report lists the documents upon which he relied and the circumstances of his attendance at the site. Although the list of documents is expressed as being an inclusive one, I am satisfied, on the basis of his response to a question from Mr Hale in cross-examination, that it is to be taken as an exhaustive one.

129. It is also to be noted that, in cross-examination, Mr Francis acknowledged that he had not had any discussions with officers of the Council and that the only person with whom he had had discussions concerning the road was Mr  Haxsell, with those discussions occurring during the course of Mr Francis’ site inspection (during which he was accompanied by Mr Haxsell).

130. The documents provided to Mr Francis were:

1. Wyong Shire Council Conditions of Development Consent DA/236/2005E dated 5 March 2009 provided by O'Brien Legal;

2. Section 96 Drawings by DEM (Project number 3745-00 - 11 Sheets) provided by O'Brien Legal;

3. Medical Centre Nursing Home Master Site Plan and Level 1 Plans - Drawing No. 0101 Rev B06;

4. Medical Centre Level 1 Floor Plans (RL 13.80) - Drawing No 1201 Rev B02; and

5. Three photos of the road (which he had been informed were taken by Peter Haxell of Louisiana Properties Pty Ltd in September 2015).

131. He stated that his report “was prepared based on and limited to a review of the aforementioned documentation that was provided and a site inspection carried out on Wednesday 19 April 2017”.

132. Mr Francis’ Expert Report is structured as being in five sections. These are:

1. An introductory/administrative section;

2. A section setting out notes on his observations concerning the present status of the road (including its location, in a horizontal and vertical sense, with respect to Louisiana's approved plans);

3. A series of photographs of aspects of the road (the majority of which were taken by Mr Francis on his mobile phone during the course of the site inspection, but three of which were, as earlier noted, taken by Mr Haxsell in September 2015);

4. The instructions that had been given as to the topics about which his expert opinion was requested;

5. The conclusions that he had drawn on each of the matters about which he had been asked to report; and

6. Finally, his overall conclusion as to the fitness for use of the road for the purposes required by Louisiana's development consent.

133. The first section of his notes, concerning the condition of the road, was in the following terms:

During my attendance on site, I noted the following in relation to the road:

•   The road appeared to be constructed with a cement or fly ash slurry surfacing. The total thickness of the pavement was not evident at the time of the inspection, however, the surfacing in some places appeared to be about 100mm at the edge of the formation (refer Figure 1 below). The pavement was measured at locations where the edge was exposed and the subgrade was visible. The thickness was measured using a pen as a measurable indicator.

•   There appeared to be a drainage culvert at the western end of the formation which consisted of a PVC pipe beneath the road. The pipe was cracked and had collapsed at the upstream side (refer Figure 2 below). The cracked PVC pipe will need to be removed and replaced as part of any permanent pavement works. The pipe should be concrete pipe for longevity.

•    The drainage culvert and tail-out drain evident in September 2015 (refer Figure 8 below) was not evident during my site inspection. It is likely that the drain is overgrown with vegetation.

•   The road pavement showed signs of cracking (most likely shrinkage cracking) at fairly regular spacings (see Figure 3 below).

•   The road surface appears to be quite weathered when compared to the pavement condition is September 2015 (Refer Figures 7a and 7b below). From my observations and consistently with my instructions, it does not appear that the road has been used for vehicular traffic purposes since it was constructed. This would be consistent with the fencing that is in place at both the eastern and western ends of the road that would prevent access.

•   The road has been constructed in a location that is not consistent with the approved location of the access road (refer Figure 4 below which shows an overlay of the approved road design in relation to an aerial photo of the constructed road).

•   The road has been constructed with a material that contains foreign particles such as electrical wiring and broken tiles and other unsuitable materials (refer Figures 5a and 5b). These foreign particles can be found at numerous locations along the length of the pavement. This is evidence that the pavement has not been constructed appropriately and is defective for the entire length.

•   The road has not been constructed to the correct levels (refer to Section 96 Drawings by DEM - Project number 3745-00, Drawing No. 0101 Rev B06 and Drawing No 1201 Rev B02). Whilst works as executed levels have not been provided for the road, it is evident that the road is in the order of 0.5m higher than the approved design levels (refer Figure 6 which shows the road levels approximately 2m above the access road levels within the existing aged care site. The approved design shows that these levels should only be in the order of 1.5m above the access road levels in the existing aged care site).

134. The figures to which reference is made in the above extract are the photographs in his report. Relevant ones are reproduced later.

135. As I earlier noted, Louisiana's request to Mr Francis seeking his expert opinion was on a number of topics listed by Mr Francis in his Expert Report.

136. Mr Francis had been instructed (report at (8)) to express his expert opinion regarding:

1. the manner of the road's construction;

2. whether or not the road has been properly and adequately constructed;

3. whether or not the road has been adequately constructed so as to be usable, durable and functional; and

4. whether or not the road has been constructed in accordance with the applicable road building standards.

137. Five of the photographs taken by Mr Francis, and reproduced in his report, deal with what he regarded as unsatisfactory aspects of the road in its present condition. Those five photographs are reproduced below, with the caption to each of them reflecting that aspect of the road which had previously been commented upon by Mr Francis in his observations earlier reproduced.

138. The first of the matters upon which Mr Francis had been instructed to express an expert opinion was the manner of the road’s construction. His opinion on this point was set out in his Expert Report in the following terms:

In regards to the manner of the road construction, it is my opinion based on the wording of condition 16 of the development consent that the road was intended to be a permanent road. The condition states "The pavement is to be designed to withstand all proposed loads including construction loads". The condition references proposed loads as separate to construction loads which would imply that the road would be used not only during construction but also beyond construction, thus making it a permanent road. It is my opinion that the road has not been constructed for use as a permanent road. The road has been constructed from materials that are not standard practice for permanent roads. A permanent sealed road would generally be constructed from bituminous sprayed seal, asphalt or concrete.

139. The second of the matters upon which Mr Francis had been instructed to express his expert opinion was whether or not the road had been properly and adequately constructed. His opinion on this point in his Expert Report was:

In regards to whether or not the road has been properly and adequately constructed, it is my opinion that it has not been. Adequate construction of a road would require the road to be constructed of suitable materials and of an appropriate thickness for the intended or approved use. Drainage would also need to be adequately provided to ensure the pavement is protected from ingress of water. Based on my observations, the road has not been constructed of suitable materials nor has it been constructed to a suitable thickness. As previously stated, a permanent sealed road would be constructed from bituminous sprayed seal, asphalt or concrete which is not the case. The road is showing extensive cracking which indicates that the road has not been constructed properly, in that a properly constructed road would be jointed appropriately to prevent cracking. Cracking can lead to water ingress which can adversely affect the longevity of the pavement. In addition, a properly constructed road would be constructed with gutters or drains along its edges to divert stormwater runoff around the pavement which has not occurred for this road.

140. The third of the matters upon which Mr Francis was requested to express his expert opinion was whether or not the road had been adequately constructed so as to be usable, durable and functional. His opinion on this point was in the following terms:

In regards to whether or not the road has been adequately constructed so as to be usable, durable and functional, it is my opinion that this is not the case. Whilst the pavement may be usable for some period of time, the cement or fly ash slurry surfacing is not durable and is not suitable as a permanent pavement. This is evidenced by the current condition of the road compared to the condition of the road in September 2015. The road is showing signs of erosion without it being subjected to any traffic. This is evidenced by the finer materials washing away and exposing the larger aggregate materials. This should not occur on an adequately constructed pavement.

In regards to the functionality of the road, apart from the material used in the pavement construction, the road has been constructed at the incorrect level and in the incorrect alignment and as such, the road is not functional in its current state as it would need to be reconstructed for it to be useable for the future development on the site.

141. The fourth of the matters upon which Mr Francis was requested to express his expert opinion was whether or not the road had been constructed in accordance with applicable road-building standards. His opinion on this point was in the following terms:

In regards to whether or not the road has been constructed in accordance with the applicable road building standards, it is my opinion that the road has not been. Road design is usually carried out in accordance with Austroads "Guide to Pavement Technology - Part 2: Pavement Structural Design", which provides design charts for the design of pavements based on certain traffic loadings. Whilst the Conditions of Development Consent do not specify the design traffic loadings for the road, in my experience and based on the design charts (Figure 12.2 from Austroads), a nominal traffic loading of 1,000 equivalent standard axles (ESAs) would require a pavement thickness of at least 260mm. Even if the pavement is shown to be of this thickness, a pavement designed for only 1,000 ESAs would be considered a very light pavement and would not have a considerably long design life. Of course, the design life depends somewhat on how much traffic uses the road, but over an estimated 20 year design life, this would only permit one (1) ESA per week which would not even cover a single truck.

142. In this context, it is to be observed that Mr Francis makes no reference to AS 2890, this being the standard with which compliance was required by the Council as one of the elements of condition (16) of Louisiana's development consent.

143. Mr Francis then continued to set out a number of specific conclusions on aspects of the road where he had concluded that that which had been constructed was inadequate in the context of (as I understand his report) the relevant overall general requirements of a road that would serve the purposes required of it by Louisiana's development consent. These comments were in the following terms:

It is my opinion that the road has been constructed from poor quality materials not suitable for a permanent road, at incorrect levels and in an incorrect alignment, with inadequate drainage, and is deteriorating without having experienced any traffic.

•   In locations where the road has been constructed too high, the road would need to be removed in order for the road to be constructed at the correct level. Retaining and repairing the pavement is not an option where the pavement has been constructed too high.

•   In regards to the quality of the pavement, the cementitious nature of the fly ash pavement material, and the shrinkage cracking that is evident means that the pavement would need to be removed as the extensive cracking is a defect that would lead to further deterioration of the pavement by water ingress to the subgrade.

•   In locations where the road has been constructed in the incorrect location, the road would need to be removed as it would interfere with the location of any future development on the site.

•   The existing drainage would need to be removed and replaced as it is damaged and is close to the underside of the pavement and would not be at a suitable level once the pavement is removed.

144. Mr Francis' overall conclusion concerning the road, and its fitness for purpose, was in the following terms:

Based on the above, there is no value in the road as a permanent road and there is no value in the road for future use. The road will have to be removed for the entire length and the road would need to be redesigned and reconstructed to the correct alignment and levels, with appropriate drainage and of materials to meet the usage requirements of the Development Consent.

145. Mr Francis’ report also reproduced an image that comprised an overlay of portion of drawing No 0101 Rev B06 superimposed on an air photo showing where the road constructed by Caverstock, at Hakea's request, was located. The road can be seen in lighter colour toward the upper and right margins of the image. That image is reproduced below:

Whether or not the Council could, or would, approve a modification application by Hakea to alter condition 78 so that the defined route for the linkage between its development and the western boundary of the Wyong Health Campus is not a matter upon which it is appropriate to speculate. Indeed, given my earlier discussion concerning easement (C), the right of access enjoyed by Hakea over Lot 102, if I am correct, would render the utility of such an application of no consequence unless Hakea were to obtain a right to construct a continuation of such a route across the Wyong Health Campus lands through to the perimeter road on those lands.

167. If Louisiana's development consent were able to be implemented, there is no doubt that any revegetation along the alignment of the road constructed by Caverstock, at Hakea’s instigation, would be rendered wasted as a consequence of the works that would be necessary to be undertaken to construct the medical centre and its related facilities.

168. However, as I have indicated, it is not appropriate for me to speculate on whether or not the Council would approve such a modification application or whether Louisiana or a successor in title would actually proceed to construct the medical centre. It is, however, for the purposes of my determination in these proceedings, appropriate to have regard to what might potentially be the position if the Council were not to approve such a modification or, if modified, the consent was not acted upon.

169. In these circumstances, revegetation outside Hakea’s APZ (I emphasise revegetation sought by Louisiana) might well give rise to additional considerations requiring assessment, should some further development application be made to the Council for Lot 102 by Louisiana or some successor in title (if a sale was to eventuate).

170. This would arise as a consequence of the fact that the naturally recurring regrowth which had been cleared and the revegetation proposed by Total Earth Care would be consistent with the re-establishment of Swamp Oak Floodplain Forest, an endangered ecological community, along that road alignment. Whilst the presence of such a re-establishing endangered ecological community does not preclude some future development being approved on Lot 102, it would give rise to a different, and potentially more complex, assessment process for such an application.

171. Under circumstances where Louisiana seeks revegetation and where there are potential significant ecological values to be obtained by such revegetation, values which may be, at least in part, able to be accommodated if a fresh development application was to be necessary, it is appropriate to require implementation of the revegetation elements of the Total Earth Care proposal (except to the extent any might be within the Hakea APZ - although this exception seems unlikely to have any such effect).

The exercise of discretion

Hakea’s position

172. In essence, Hakea’s concluding position is that, if I was to be satisfied that there was some basis upon which I concluded that Louisiana had established a breach of the EP&A Act, I would, as a matter of discretion, decline to order any relief utilising the power given to me by s 124(1) of the EP&A Act.

173. Mr Hale's written submissions on this point are appropriate to be reproduced in full. They were comparatively succinct and were in the following terms (excluding footnotes):

LEC Discretionary Relief

1.    Louisiana Properties Pty Ltd (Louisiana) seeks the following remaining relief pursuant to its third further amended summons (Amended Summons):

(a) A declaration that Hakea Holdings Pty Ltd (Hakea) has breached section 76A of the EP&A Act (Declaration 1);

(b) A declaration that Caverstock Group Pty Ltd (Caverstock) has breached section 76A of the EP&A Act (Declaration 2);

(c)    Following from (a) and (b), an order that both Hakea and Caverstock should carry out remedial works on Louisiana’s land at Lot 102/1091897 (Lot 102), being ‘restoration, revegetation and land rehabilitation’ on Lot 102 (Remedial Works).

Declarations 1 and 2

2.    The making of declarations is discretionary relief.

3. In order to make the declarations sought, it must be found that ‘a person’ has not carried out a development in accordance with a relevant consent and a relevant instrument. ‘Person’ is defined in section 4 as including ‘an unincorporated group of persons or a person authorised to represent that group’.

4. The Court has found that the construction of the access road on Lot 102 generally coincided with the access road authorised to be constructed pursuant to Louisiana’s consent. The Court has not made any finding of a breach of section 76A.

5.    In the premises, there is no basis to make either Declaration 1 or Declaration 2.

6.    Even if there was non-conformance with Louisiana’s consent in constructing the road (which is denied and the Court has not found), given the Court’s findings about the quality of the road and general conformance with the consent in the construction of the road, any departure from the consent was of such a negligible nature so as not to warrant the exercise of the discretion to make a declaration in the premises, de minimis non curat lex. It would also be necessary for the Court to identify the extent of the non-compliance as the relief must be limited to curing that non-compliance.

7.    The argument that has the greatest force against any exercise of discretion, however, is the fact that Louisiana had already commenced proceedings for trespass seeking identical (or at the very least, equivalent) relief to that sought in the later LEC proceedings - and now the Court has already determined liability in trespass and ordered (in part) relief in trespass in favour of Louisiana by way of exemplary damages. Louisiana rightly acknowledges that the LEC claim is made in the alternative to the trespass claim. There can be no ‘double-dipping’. In such unusual circumstances, the Court would be justified in not exercising any discretion to make the declarations sought.

Remedial Works

8. If the Court does determine to make either or both of the sought-after declarations, the issue of the discretion to then make an order under section 124 of the EP&A arises relevant to the sought-after Remedial Works.

9. Kirby P (as his Honour then was) identified a number of guidelines established by the relevant authorities concerning the exercise of any discretion under section 124 in Warringah Shire Council v Sedevcic (1987) 10 NSWLR at 335 at 339Cff. In particular, the authorities acknowledge that in exercising the discretion, the aim is not the enforcement of a private right but that of a public duty seen in light of the relevant planning law. His Honour later described the discretion as a circumscribed ‘mollifying one’.

10. The Court has already made findings in relation to the conduct the subject of the both the trespass claim and the discretionary claim under section 124. Any order must be made to remedy any breach of section 76A. As stated above, no breach has been found.

11.    The Court’s findings have included:

(a)    Louisiana’s development consent is a currently operative consent;

(b)    Apart from preliminary activities such as demolishing an existing dwelling, Louisiana has not undertaken any substantive construction on Lot 102 from the date of the consent (some 11 years);

(c)    It is likely Lot 102 will be developed in accordance with the development consent within 10 years as this was the basis of the valuation of the easement on the evidence adduced;

(d)    Revegetation of Lot 102 would not be consistent with either the clearing of the APZ or the zoning of Lot 102, and would fly in the face of the regular vegetation clearing which has taken place between 1985 and 2013.

174. Even more succinct were his closing oral submissions addressing this. He said (Transcript, 5 September 2017, page 87, lines 15 to 42):

Now I go to the submissions that were filed on 28 August.  I did mention earlier the further submissions on 7 December which I think are, indeed, behind tab 18 which, amongst other things, broached the native vegetation issue which was at one stage alive, but your Honour will see in para 28 and following on discretion.

I think going to para 1, dealing with the discretionary relief, the declarations have probably identified what needs to be done in that respect and the approach that should be adopted at least and that's what we've done in para 6.  In para 7 we refer to the fact that, as we understand it, your Honour is looking at the question of discretion as to what relief ought be granted in these proceedings and, in the event that it is granted, your Honour wouldn't need to make any further order for damages.  So far as the remedial works are concerned, we refer to Sedovic.  We were talking about a non‑sealed road on a vacant block.  This is what we're concerned with here in the circumstances where the property is for sale as otherwise not used.  This is what the furore is at the moment.

We refer to para 11, we refer to the Court's findings.  We refer at para (c), your Honour's finding that the land will be developed in accordance with the development consent within ten years.  Your Honour will forgive us, we've been relying upon the copy of the judgment on the website.

HIS HONOUR: No, I understand that.

HALE: The re‑vegetation of lot 102 would not be consistent with either the clearing of the APZ or the zoning of lot 102.

Louisiana’s position

175. Louisiana’s position was, unsurprisingly, that I should exercise the discretion to order the removal of the road and the revegetation of the corridor of the removed road. For the reasons which follow, I am satisfied that that would be the appropriate outcome.

The principles in Sedevic

176. The principles to be considered in determining whether, and on what terms, I should exercise my discretion pursuant to s 124(1) of the EP&A Act to order removal of the road and, if so ordering, determining whether or not revegetation should be required as proposed in the Total Earth Care scope of works, were set out by Kirby P in Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 at 339 to 341. Not all of the principles enunciated by his Honour are relevant to my consideration in these proceedings.

177. The primary principle set out in Sedevic requiring my consideration is that which is in the following terms:

4. In exercising the discretion, it must be kept in mind that the restraint sought is not, in its nature, the enforcement of a private right, whether in equity or otherwise. It is the enforcement of a public duty imposed by or under an Act of Parliament, by which Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment. Because s 123 of the Act permits any person (and not just the Attorney-General or a person with a sufficient interest), to bring proceedings in the court for an order to remedy or restrain a breach of the Act, there is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid. [citations omitted]

178. As Mr Hale candidly acknowledged (and was self-evident from the nature of the various proceedings), this dispute about the road constructed by Caverstock, at Hakea’s instigation, is, effectively, a commercial dispute between two property development entities. However, in these circumstances, no less weight is to be given to the philosophic imperative of protecting the integrity of the planning system when compared to circumstances where such an outcome is sought by a public authority. It is the avoiding of giving Hakea an impermissible private advantage as a result of the unlawful conduct that requires consideration.

The location and condition of the road

179. It is to be noted that, concerning development such as this road, Kirby P also observed:

7.   Where the relief is sought against a “static” development (ie the erection of a building) which, once having occurred can only be remedied at great cost or inconvenience, the discretion may, in the normal case, be more readily exercised than where what is involved is a continuing breach by conduct which could quite easily be modified to bring it in compliance with the law. But this observation is simply a reflection of the judicial perception in balancing, on the one hand, the public interest in equal compliance with the law and, on the other hand, the degree of irremediability occasioned by the breach and the expense or inconvenience which would follow the law’s enforcement.[citations omitted]

180. This moderating element of the principles set out in Sedevic is of no assistance to Hakea in this instance of considering whether to refrain from ordering the removal of the “static” development constructed by Caverstock, at Hakea’s instigation. The reasons for this are set out concisely below.

181. I have earlier set out and considered the expert engineering evidence of Mr Francis. It is clear that the road constructed by Caverstock, at Hakea’s instigation, is not only of no benefit to Louisiana for the purposes of the medical centre element of Louisiana's development consent (a consent I have held to remain operative but dormant), but the road, because of its location in both horizontal and vertical aspects, acts as a barrier to the implementation of Louisiana's approved development of the medical centre, if Louisiana or a successor in title were to wish to seek to do so.

182. Although utility of a proposed structure is engaged by the seventh of principles enunciated in Sedevic, it is to be inferred that the principles set out by his Honour could only relate to whether or not discretion would weigh in favour of permitting development to remain where such otherwise unlawful development was properly and adequately constructed and fit for purpose if permitted to be retained. Clearly, on the basis of Mr Francis' evidence, this consideration is not satisfied by the road.

Lot 102 is for sale

183. Louisiana has advertised Lot 102 for sale. It is being offered for sale by tender through a real estate agency, Knight Frank, an agency that deals in commercial properties. A copy of the advertisement for the property was tendered for Hakea and became Exhibit M. The sale period during which Louisiana's property was on the market closed on 7 September 2017, two days after this hearing.

184. Given the conclusion which I have reached as to the appropriate outcome of the proceedings, it may be necessary for the otherwise expected orders which would follow from my determination to be modified if Louisiana's sale process has been successful. To permit that, at the conclusion of this decision, I make a direction that the parties are to prepare and settle Short Minutes of Order to give effect to my determination - should the outcome of the sale process in any way affect what might otherwise be the appropriate orders - that can be accommodated by the parties in that process.

185. I have no information concerning the terms upon which Louisiana offered Lot 102 for sale. However, two matters from the Knight Frank advertisement are pressed by Mr Hale as relevant for my consideration. They are the first and fifth of the dot points in the brief descriptive information provided in Exhibit M. Those dot points read:

•   17,774 m2* site - part of Wyong Medical Precinct [it is to be noted that there is no obvious contextual purpose served by the * in this bullet point]

•   …

•   …

•   …

•   Direct linkage road to Wyong Public Hospital approved

186. In the context of understanding Mr Hale's closing submissions, it is also appropriate to reproduce the element of the transcript of 5 September 2017 that sets out Mr Hale's questions concerning the proposed sale and the evidence given by Mr Haxsell in response to those questions. The relevant extract from the transcript of 5 September 2017 (Transcript, 5 September 2017, page 70, line 35 to page 72, line 37) is in the following terms:

CROSS-EXAMINATION BY MR HALE

…

Q. Now, you've told us how you have worked with Mr Steiner. You were aware, weren't you, that in September of last year he swore and affidavit in the Supreme Court proceedings that Louisiana Properties has no proposal to construct a medical centre on its land at Lot 102. You knew he'd sworn that?

A. Yes.

Q. And that's correct, isn't it?

A. That was correct at the time it was sworn.

Q. It's still correct, isn't it?

A. I'm not interested in building it.

Q. You're not interested?

A. Not that development.

Q. No. And what you're trying to do is to sell it?

A. Yeah, we've had it on the market.

Q. Yes. And that is why you sought to have Hakea buy it for $3.515 million last year?

A. They made an offer at one stage to purchase it.

Q. Yes, for $2.8 million?

A. Plus GST, I think it was in that order, yes.

Q. Yes. And you demanded ‑ Louisiana demanded $3.515 million?

A. No, we were asking more and we were prepared to negotiate.

Q. Last year ‑ and I'm going to page 208 ‑ you were asked ‑ line 10 ‑ your understanding was that Louisiana was prepared to sell the land to Hakea for $3.515 million, and you answered "Yes."  That answer was correct, was it not?

A. Correct, yes.

Q. But Hakea was only prepared to offer $2.8 million, and you said, "Yes."  That answer is correct?

A. That's correct.

Q. And you were asked:  "There was in those circumstances a failure to agree upon a price?"  And you said, "In those discussions, yes, but we did make approaches if there was other ‑ if the negotiation could proceed and nothing was ‑ nothing came back from Hakea, so nothing happened."  That's correct, isn't it?

A. Yes.

Q. You say you presently have the property on the market?

A. Correct.

Q. If I could show you ‑ you presently have the property listed with Knight Frank, correct?

A. Correct.

Q. And this is the advertisement for the property?

A. Yes.

Q. With offers being to close this Thursday ‑ in two days' time?

A. That's correct.

Q. You, of course, approved this particular advertisement?

A. Yes.

Q. And You see where it shows the subject site in relation to the Hakea development and Wyong Hospital?

A. That's correct.

Q. And you see in the ‑ down below ‑ the second dot point "Approved medical centre" ‑ do you see that?

A. Yes.

Q. Clearly you were seeking to sell the property promoting as one of its attribute the current development consent?

A. Yes, that's right.

Q. And that was the approved medical centre site ‑ do you see that?

A. Yes.

Q. And you ‑ again, you were seeking to promote it by referring to the outstanding potential for retirement living ‑ particularly assisted living?

A. Yes, that was suggested.

Q. Yes, because what you were trying to do is promote the advantages of the site, correct?

A. That's correct.

Q. And if you look at the ‑ about the fifth dot point ‑ "Direct linkage to Wyong Hospital approved" ‑ do you see that?

A. Yes.

Q. And that was intended, wasn't it, to convey that one of the attributes of the property was that it could access Wyong Hospital directly. Is that correct?

A. Yes.

Q. That you could come in from Louisa(as said) Road, get onto the subject site, and from there go on to Wyong Hospital?

A. Yes, there is a deed with Wyong Hospital that allows us to do that.

Q. And the fact that you could go from Louisa Road onto your property and then onto Wyong Hospital was one of the attributes of the property, correct?

A. Potential for the purchaser, yes.

Q. Yes. And the way you would come onto your property and onto Wyong Hospital would be to travel over the rights of way on the Hakea property, correct?

A. Yes.

187. Mr Hale’s closing submissions on Louisiana’s offering of Lot 102 for sale were in the following terms (Transcript, 5 September 2017, page 90, line 25 to page 91, line 13):

In relation to the class 4 proceedings, I don't wish to repeat what I said before but it does mean identifying what the breach is and what is the appropriate measure of remedying that particular breach and the remedy must of course be related to the particular breach itself. And we would say no environmental harm, no adverse impact on the property. There is already certain rights on any view of it, for my clients to come onto the property with vehicular traffic to do certain things. Always intended, going back to the subdivision consent and the development consent that there would be access, vehicular access on lot 102, that my clients would be able to or those associated with my clients would be able to drive to lot 102 because the two developments were inter‑related.

That of itself, would suggest your Honour wouldn't make any order then look at what the actual impacts are. This I've been emphasising, just an unsealed road on a vacant block which does nothing else, which its sole purpose is to be sold and for a medical centre pursuant to the terms of the development consent. And in those circumstances there would be no environmental harm. No suggestion that there would be any impact on the endeavour to sell. Your Honour's heard from Mr Haxell today about well their offers close on Thursday. No suggestion in his evidence this road is somehow an impediment to the sale. No evidence, for example, that potential purchases have gone to the real estate agent and said, Look, I feel I should discount what I would offer by a certain sum of money because of the existence of the road, nothing of that sort. And your Honour, we'd be entitled to assume that that is because nothing like that occurred.

The potential purchasers are obviously influenced by the fact that there is that link road. That there is that development consent which shows a road and also the car spaces generally in that position. So why in the circumstances would the Court, having regard to the principles in Sedovic, require its removal?  If your Honour's against me on that and it has to be removed, your Honour when considering orders would no doubt have to take it into consideration the fact that the real possibility that there will be a purchaser of the subject owned in the near future. We know the, what's closing on Thursday, we know what the intention is on behalf of Louisiana, of course to sell as one might imagine to disburse the sale proceeds into other projects.

So if there is a sale, why would your Honour, in those circumstances, make orders which would assume that Louisiana was continuing to hold onto the property?

188. He said further on this point (Transcript, 5 September 2017, page 92, lines 3 to 19):

And the reality is ‑ it's more than just a reality, what is clearly going to happen is the property's going to be sold by Louisiana, with the benefit of the development consent, whether it's on this occasion or when it is, we know that there's no intention on behalf of Louisiana to undertake that construction itself which, one wonders, why then does it want the road removed and the revegetation but we ‑ which revegetation, of course, would mean that any further purchase would incur further costs.

But, we know it's not going to do the work, we know it's going to sell. One would assume that what is happening in the commercial world is trying to structure the price at which Louisiana's prepared to sell and a purchaser is prepared to buy. But, we know it's going to happen. Your Honour said within ten years but ‑ it will be up and running ‑ something will be up and running. But, that is the reality, the land's going to be sold and it's not going to be Louisiana that's going to be affected unless, somehow, it affects its purchase price or in which there is a requirement by the purchaser to remove the road, that's the only way Louisiana's going to be affected.

189. Nothing in these submissions detracts the basis upon which my proposed outcomes are founded but the necessary orders may require adaptation if a sale has occurred or is known to be going to occur. This is provided for in the directions at the conclusion of this judgment.

The position of the Council

190. Finally, it is to be observed that, in this instance, although joined to the proceedings, the Council has entered a submitting appearance and has, thus, not sought to be heard on any issues, relevantly including protection of its functions and powers as the consent authority pursuant to the WLEP and predecessor local environmental plans. However, this fact favours neither party on the question of discretion.

Conclusion on discretion

191. The desirability of protecting the integrity of the planning system (particularly when, as observed at [167] of my earlier decision), it is reasonable to infer that Hakea and Caverstock knew that further steps were necessary before any road was able to be constructed lawfully by them, when coupled with the conclusions I have drawn about the condition of the road, make it entirely appropriate to exercise discretion to require removal of the road and revegetation of the resultant cleared corridor.

192. I am satisfied, as I indicated during the course of the hearing, that the appropriate approach to removal of the road and subsequent revegetation of its route, that such activity should be carried out by Louisiana but at the expense of Hakea and Caverstock. As later discussed, the work is to be that specified in the Total Earth Care reports and the cost exposure of Hakea and Caverstock is to be limited to the cost estimate provided by Mr Alliu dated 25 August 2016 (Exhibit C, folios 835 to 836), together with adjustment of that cost by the statutory interest rate between the date of that price estimate and the date when Hakea and Caverstock pay the money into a trust account so that removal and revegetation can be funded in the fashion described below.

193. Although the work is to be carried out by Louisiana and paid for by Hakea and Caverstock, the funds calculated on the basis described immediately above are to be paid into a trust account established so that release of monies from the account is to occur, on a progressive basis, as the work is completed. Release of funds is to be by agreement between Louisiana and the Hakea/Caverstock interests. The precise details for the establishment of this process can be settled by the parties.

194. Liberty to restore to work out the orders setting up such a process is to be included to provide a mechanism for resolution of any implementation disputes which might arise.

Caverstock's position

195. During this phase of the proceedings, Caverstock has been represented by Mr Joe Denina. He is a solicitor who is employed by Carneys Lawyers, Caverstock’s legal representatives. Although Mr Denina was invited by me, on several occasions, to make any submissions to be advanced on behalf of Caverstock, he indicated that he did not wish to do so but was content to adopt the submissions made for Hakea. As a consequence, there is no separate analysis concerning Caverstock’s position in these proceedings.

196. However, given the e-mail exchange to which I referred at [167] in my earlier decision, I am satisfied that Caverstock was aware that there were very real and significant risks arising from accepting Hakea’s instruction to construct the road in the absence of creation of an easement from Louisiana to Hakea for this purpose. The consequence of this is that Hakea and Caverstock should be made jointly and severally liable for the cost of removal of the road.

197. Should Hakea propose to indemnify Caverstock for that liability, such indemnification could only appropriately be by private arrangement between those two parties and is not something that I would propose to accommodate in the orders of the Court.

Costs

198. The parties have agreed that there is not to be any determination made on costs in my determination arising from this phase of the hearings. As a consequence, the orders to be settled by the parties pursuant to the directions at the end of this decision are to provide that costs are reserved unless the parties are able to agree on a negotiated costs outcome covering all proceedings.

Disposal of the Supreme Court proceedings

199. The only outstanding matter arising from the Supreme Court proceedings is the resolution of the ordinary damages’ element of Louisiana's trespass-based cross-claim.

200. Given the conclusion that I have reached, that it is appropriate to require the removal of the road at Hakea’s and Caverstock’s expense, it necessarily follows that Louisiana's claim for damages on an ordinary basis in its cross‑claim in the Supreme Court proceedings is to be dismissed. This is to be provided for in the Short Minutes of Order to be settled by the parties pursuant to the directions at the conclusion of this decision.

Conclusion

201. The appropriate conclusions to be drawn are that Caverstock’s construction of the road, at Hakea’s instigation:

1. Was in the knowledge of Hakea and Caverstock that an easement from Louisiana would be necessary to construct the road independently of Louisiana’s development consent but no such easement was obtained; and

2. Was undertaken without another development consent upon which Hakea could rely and, thus, Hakea and Caverstock were both in breach of s 76A(1)(a) of the EP&A Act;

however:

3. If this conclusion is incorrect and Hakea had some entitlement to rely on Louisiana's development consent (contra to my conclusion that Hakea did not have such an entitlement),

1. Caverstock could not construct the road, at Hakea’s instigation, without the appointment of a principal certifying authority and the issuing of a construction certificate and neither of these occurred, meaning that this was a breach by both Caverstock and Hakea of s 82A(2) of the EP&A Act;

2. the absence of evidence of Hakea having satisfied two of the prerequisites in condition (16) of Louisiana's development consent, in circumstances where the burden of proof falls on Hakea to demonstrate that those preconditions had been satisfied, means that Caverstock’s construction of the road, at Hakea’s instigation, in those circumstances was a breach by both Caverstock and Hakea of s 76A(1)(b) of the EP&A Act; and

3. the failure to construct the road along the alignment approved by the Council for the purposes of Louisiana’s development consent constituted a second, separate breach of s 76A(1)(b) of the EP&A Act.

202. I have therefore concluded that the outcomes are that:

1. It is appropriate to make declarations that Hakea and Caverstock have both breached s 76A(1)(b) of the EP&A Act in the terms sought in Louisiana's Third Further Amended Summons;

2. It is also appropriate to exercise the discretion given to me by s 124(1) of the EP&A Act to make orders remedying the breaches by requiring removal of the road and revegetation of that road corridor;

3. As a consequence, the remaining element of Louisiana's cross-claim in the Supreme Court proceedings (a claim for ordinary damages for trespass) is to be disposed of by dismissal;

4. The cost of the removal of the road is to be the joint and several responsibility of Hakea and Caverstock;

5. The liability for Hakea and Caverstock is to be capped at the estimated cost of removal of the road (including revegetation) contained in the Total Earth Care quotation set out in the affidavit of Mr Ergys Alliu dated 25 August 2016 (Exhibit C, folios 835 to 836), together with statutory interest applied to that amount from the date of that quotation up to and including the date upon which the sum so derived is paid into a trust account from which progressive disbursements may be made, by agreement between the parties, to fund the activities undertaken in carrying out the removal of the road;

6. The orders are to provide for liberty to restore to permit working out of the above order if this became necessary;

7. The removal of the road is to be undertaken by Louisiana;

8. Should it be necessary to adjust the outcome I have determined is appropriate to take into account whatever (if anything) may have resulted from the sale process being undertaken by Knight Frank, on behalf of Louisiana, the parties are to settle any such required adjustment in the orders they are directed to prepare;

9. Hakea’s Notice of Motion filed on 30 August 2017 is to be dismissed; and

10. Costs are to be reserved unless agreed to by all parties.

Directions

203. To give effect to my determination, I make the following directions:

1. The parties are to provide my Associate with settled Short Minutes of Order reflecting this decision, in both physical and electronic form (as a Word document), by the close of business on Monday 20 November 2017;

2. The Short Minutes of Order are to provide that the liability for payment for the works required to be carried out is to be joint and several liability of Hakea and Caverstock;

3. The matter is set down for hearing before me at 8.30 am on Wednesday 22 November 2017 (maximum 1.5 hours’ fixture) for submissions on any matters requiring determination concerning the orders required to give effect to this decision. If this hearing is required, each of the parties are to provide my Associate, by the close of business on Monday 20 November 2017, a summary of the position for which that party contends. The summary is to be provided electronically as a Word document. It is to be limited to five A4 pages in length and is to be in 12-point Arial font;

4. Unless the parties are able to agree on a costs outcome for all aspects of the proceedings, the orders are to provide that costs are reserved; and

5. If Short Minutes of Order are provided to my Associate in accordance with (1), I will make orders in chambers and vacate the hearing at 8.30 am on Wednesday 22 November 2017.

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Decision last updated: 21 November 2017