Muscat Developments Pty Ltd v Wollondilly Shire Council - [2021] NSWLEC 1738

Land and Environment Court

New South Wales

Medium Neutral Citation: Muscat Developments Pty Ltd v Wollondilly Shire Council [2021] NSWLEC 1738
Hearing dates: 2-6 August 2021
Date of orders: 2 December 2021
Decision date: 02 December 2021
Jurisdiction: Class 1
Before: Horton C
Decision:
See orders at [341]-[347]

Catchwords:
DEVELOPMENT APPLICATION – biodiversity development assessment – Guidelines for controlled activities on waterfront land – riparian zone – sensitive land – biodiversity offsets scheme – likely impact of the proposed development on biodiversity values – remediation of land – asbestos containing material – likely off site impacts of development – building information certificate

Legislation Cited:
Biodiversity Conservation Act 2016, ss 6.5, 6.12, 7.7, 7.13, 7.16
Biodiversity Conservation Regulation 2017, cll 6.7, 7.1
Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 6.25, 8.7, 8.25, 9.34
Fisheries Management Act 1994
Protection of the Environment Operations (Waste) Regulation 2014
State Environmental Planning Policy (Infrastructure) 2007
State Environmental Planning Policy (Koala Habitat Protection) 2020
State Environmental Planning Policy No 55 – Remediation of Land, cl 7
Water Management Act 2000
Wollondilly Shire Council Local Environmental Plan 2011, cll 7.3, 7.5

Cases Cited:
Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41
Chami v Lane Cove Council [2015] NSWLEC 1003
Ireland v Cessnock City Council (1999) 110 LGERA 311; [1999] NSWLEC 250
Jonah v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99
Kouflidis v Salisbury City Corp (1982) 29 SASR 321; (1982) 49 LGRA 17
Nalor Pty Ltd v Bankstown City Council [1980] 2 NSWLR 630
Ralph Lauren Pty Ltd v New South Wales Transitional Coastal Panel; Stewartville Pty Ltd v New South Wales Transitional Coastal Panel; Robert Watson v New South Wales Transitional Coastal Panel [2018] NSWLEC 207
Sofi v Wollondilly Shire Council [1975] 2 NSWLR 614
Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276

Texts Cited:
AS 1597.2-2013, Precast reinforced concrete box culverts, Part 2: Large culverts (exceeding 1200 mm span or 1200 mm height and up to and including 4200 mm span and 4200 mm height)
AS5100.1:2017 ‘Bridge design, Part 1: Scope and general principles’
NSW Department of Planning, Industry and Environment, Biodiversity Assessment Method, (2020)
NSW Department of Primary Industries, Office of Water, Guidelines for Vegetation Management Plans on waterfront land, (July 2012)
NSW Department of Primary Industries, Office of Water, Guidelines for watercourse crossings on
NSW Environment Protection Authority, Recovered Glass Sand Exemption 2014, (November 2014)
NSW Environmental Protection Authority, Guidelines for the NSW Site Auditor Scheme, (October 2017)
NSW Natural Resources Access Regulator, Guidelines for controlled activities on waterfront land, Riparian Corridors, (May 2018)
Wollondilly Shire Council Development Control Plan 2016

Category: Principal judgment
Parties: Muscat Developments Pty Ltd (Applicant)
Wollondilly Shire Council (Respondent)
Representation:
Counsel:
D Miller SC with J Smith (Applicant)
M Astill with M Harker (Respondent)
Solicitors:
Storey & Gough Lawyers (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s): 2020/00181331;
2020/00270199;
2020/00276311;
2020/00315373;
2020/00326094;
2020/00335248;
2021/00083520
Publication restriction: No

Judgment

COMMISSIONER: Mr James Muscat and Ms Catherine Muscat are directors of Muscat Developments Pty Ltd, the Applicant in this matter. The Applicant wishes to develop an equestrian centre on a large rural block located at 115 Mount View Close, Razorback, close to the town of Picton in Sydney’s south west.
The proposed equestrian centre requires vehicular access, and it is for this reason that the upgrade of existing driveways; new and upgraded internal roads, earthworks, drainage and a crossing over a watercourse known as Racecourse Creek are proposed.
To this end, six Class 1 appeals are now brought under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) following the deemed refusal by Wollondilly Shire Council (the Respondent) of the following:

Development application DA 2020/376/1 (Proceedings No. 2020/276311) seeks development consent for the establishment of an equestrian centre with associated sheds, horse stables, horse walkers, internal driveways, earthworks, drainage works and landscaping (‘Equestrian Centre appeal’).

Development application DA 2020/536/1 (Proceedings No. 2020/326094) seeks development consent for upgrade of a creek crossing constructed by the Applicant, sealing of driveway and installation of drain pipe (‘Crossing Upgrade Appeal’).

Development application DA 2020/583/1 (Proceedings No. 2020/335248) seeks development consent for the upgrade of an existing onsite driveway with associated earthworks, construction of retaining walls, rock revetment, stormwater drainage and tree removal (‘RU2 Road Appeal’).

Development application DA 2020/505/1 (Proceedings No. 2020/315373) seeks development consent for the upgrade of an existing driveway with associated earthworks, road drainage, retaining walls, and tree removal (‘E4 Roads Appeal’).

Development application DA 2020/238/1 (Proceedings No. 2020/270199) seeks development consent for the construction of an internal driveway and creek crossing, associated earthworks and tree removal (‘New Crossing Appeal’).

Development application DA 2020/40/1 (Proceedings No. 2020/181331) seeks development consent for modification and construction of internal driveways, dam alterations, construction of a wheel wash bay, tree removal, stormwater drainage by construction of a swale, inclusion of retaining walls and rock revetment and associated earthworks (‘Internal Roads Appeal’).

The proceedings are also in respect of an appeal against the deemed refusal of an application for a Building Information Certificate BIC/2020/69/1 (Proceedings No. 2021/83520) (‘BIC Appeal’) comprising an existing concrete culvert bridge spanning Racecourse Creek, a wheel wash bay, a toilet enclosure and a water tank.
The location of each of the appeal sites, demarcated by contrasting colours, is shown on a plan provided by the Applicant, re-produced below.

Approach to the appeals

The parties acknowledge the complex, inter-relatedness of the seven appeals the subject of these proceedings. As put by the Respondent, the sequencing of the works is complex, even in the event that the Court is minded to grant consent and uphold the appeals in all matters, let alone in the circumstances where some, and not all of the appeals are found deserving of the grant of consent.
The parties agree that there is considerable repetition in the contentions and particulars that are common to all of the appeals in these proceedings and so evidence in one matter is evidence in all of the matters.
A consistent feature of the hearing is that the parties and the experts referred to evidence in respect of the separate appeals interchangeably. For example, the Biodiversity Development Assessment Report (BDAR) prepared for the Internal Roads Appeal (Exhibit IR-D) was relied upon during expert oral evidence in respect of the location and data recorded in plot-based surveys that were particular to the RU2 Road and E4 Road Appeal.
Similarly, and presumably due to the high degree of similarity in evidence prepared for the separate applications, Section 6.1.1 of the BDARs prepared for the Crossing Upgrade and New Crossing Appeals refers only to the development the subject of the Internal Road Appeal, and the assessment at Section 5.2.2 of the prescribed impacts resulting from the Crossing Upgrade refers to “the construction of the new crossing”, being in identical terms to the assessment contained at Section 5.2.2 of the New Crossing Appeal.
Likewise, the structural engineering experts addressed matters relevant to the Crossing Upgrade Appeal and New Crossing Appeal in a joint expert report later marked Exhibit 8, that was filed with the Court under the proceedings number for the Internal Roads Appeal.
As the Applicant considers the appeals to be in respect of an equestrian centre and its access, I propose to address the development applications before the Court in the following manner:

Firstly, to consider the means by which access is proposed from Remembrance Driveway. In its submissions, the Applicant considers this access to be the primary vehicular access to the site. For access to be provided to the Equestrian Centre, Racecourse Creek must be spanned. The Crossing Upgrade Appeal and, in the alternative, the New Crossing Appeal relevantly seek consent for bridges across Racecourse Creek, as does the Building Information Certificate appeal, in part.

If there is an acceptable means of crossing Racecourse Creek, then consideration must be given next to the Internal Roads Appeal and RU2 Road Appeal, as the development the subject of these development applications are roads that connect the access from Remembrance Driveway to the Equestrian Centre.

However, if none of the appeals dealing with the spanning of Racecourse Creek are upheld, then access from Remembrance Driveway is not possible, and access to the Equestrian Centre from Mount View Close, described by the Applicant as secondary access, must next be considered.

I propose to only consider the Equestrian Centre Appeal if one or more means of access to the site the subject of the proposed Equestrian Centre is considered to warrant the grant of consent.

Only once the above appeals have been considered does the Court need to consider the Internal Roads Appeal, and only then if one or more of the preceding appeals in respect of roads providing access to the site is determined to warrant the grant of consent.

In my consideration of the issues, I am assisted by written submissions prepared by the parties that I will refer to as follows:

Applicants Written submissions in closing (AWSC).

Respondent’s written submissions in opening (RWS).

Respondent’s written submissions in closing (RWSC).

The site and its context

The site is a large rural block of around 48 hectares in size that rises significantly from the lower southern portion of the site, to elevated land on the northern portion of the site.
The site is legally identified at Lot 5 in DP 260390, with two means of access. The northern access to the site is from Mount View Close, Razorback, and the southern access is from Remembrance Drive, Razorback.
The site is currently occupied by a single dwelling located towards the north of the site, with associated out buildings.
Towards the southern portion of the site is a large agricultural shed that was the subject of a Complying Development Certificate (CDC) issued on 10 October 2019, for construction of a farm shed and associated earthworks and landscaping.
The site is vegetated, heavily in places, with Cumberland Plain Woodland, Sydney Dry Rainforest, and River Flat Eucalypt Forest, and with non-native trees and shrubs.
To the south of the site, and immediately adjoining the southern access to the site, is the Antill Park Country Golf Club (the Golf Club). It is commonly held that the path taken by this access to the site from Remembrance Driveway encroaches on the Golf Club land which is in the ownership of the Respondent.
Rural properties adjoin the site to the north, east and west.
In general terms, the north of the site is within the E4 Environmental Living zone in accordance with the Wollondilly Local Environmental Plan 2011 (WLEP), and the southern portion of the site is within the RU2 Rural Landscape zone.
The objectives of development in the E4 zone are:

•  To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.
•  To ensure that residential development does not have an adverse effect on those values.
•  To provide for a limited range of rural land uses that do not have an adverse effect on surrounding land uses.
•  To support the health and well-being of residents, workers and visitors by providing opportunities for people to engage with nature.

The objectives of development in the RU2 zone are:

•  To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.
•  To maintain the rural landscape character of the land.
•  To provide for a range of compatible land uses, including extensive agriculture.
•  To provide areas where the density of development is limited in order to maintain a separation between urban areas.
•  To support sustainable land management practices and local food production.

Expert Evidence

The Court was assisted by a large numbers of experts in the following disciplines:

Town planning experts Mr Lovell, for the Applicant, and Mr Barwick for the Respondent.

Ecology experts Mr Lindsay, for the Applicant, and Mr Sheather-Reid for the Respondent.

Civil engineering experts Dr Martins, for the Applicant, and Mr Gibbons for the Respondent.

Structural engineering experts Mr Appleyard, for the Applicant, and Mr Wilson for the Respondent.

Traffic experts Mr Doan and Mr McTiernan, for the Applicant, and Mr Calvey for the Respondent.

Contamination experts Mr Norris, for the Applicant, and Mr Clay for the Respondent.

Surveying experts Mr Cheng, for the Applicant, and Mr Ragen for the Respondent.

Oral evidence was adduced from the experts in town planning, ecology, civil engineering and contamination.

The onsite view

In case management conducted by Microsoft Teams on 30 July 2021, the Court directed that an onsite view be held.
The onsite view was limited to five persons, and conducted in a socially-distanced manner on 2 August 2021. In the company of the two senior legal counsel, Mr Barwick, the expert planner for the Respondent, and Mr Lindsay, the expert ecologist for the Applicant, the Court walked from the entrance to the site on Remembrance Driveway, along the primary vehicular track, to the entrance to the site on Mount View Drive.
Relevantly, the Applicant also provided to the Court drone footage (drone footage) taken along a similar, but not identical route. The drone footage was of assistance during expert evidence (Exhibit 13).
During the onsite view, the Court’s attention was directed by the Respondent to areas of fill that were said to be brought on to the site without consent.
It is relevant to record here that the Respondent identified in October 2019 that works had been carried out on the site for which consent had not been granted, and an Emergency Development Control Order was issued under s 9.34 of the EPA Act.
The parties do not dispute this fact, however the degree to which the Court in Class 1 proceedings should have regard to matters that are being heard concurrently in Class 4 proceedings is the subject of submissions.
In essence, the Respondent submits that the Court should, in undertaking its consideration of the development the subject of the development applications, apply its mind to the ‘pre-development scenario’, which I understand to be the state of the site before the presence of the fill for which consent had not been granted. In essence, Mr Astill, counsel of the Respondent, argues that the Applicant should not obtain a benefit derived from illegal works.
In support of this position, the Respondent sought to tender the following documents in Exhibit 2 that were objected to by the Applicant:

Tab 5 – Travers bushfire and ecology report, Expert evidence report, prepared by Mr Sheather-Reid, December 2020 (Travers Report).

Tab 6 – Site analysis survey July 2020, prepared by Airsight.

Tab 12 – Affidavit of David Andrew Savage – 28 May 2021.

Tab 13 - Affidavit of David Andrew Savage – 9 July 2021.

Tab 14 – Nearmap aerial images.

Mr Miller SC, counsel for the Applicant, argued that the Travers Report contains unsubstantiated assertions on the extent of clearing; the affidavits behind Tabs 12 and 13 allege unlawfulness that I cannot consider; and the matter of fill had been dealt with by the Applicant in a letter prepared by Mr Andrew Norris of Martens consulting engineers (Martens) dated 26 February 2020 (Martens Letter of 26 February) (Exhibit 4, Vol 2, E), in response to which the Respondent had not particularised a contention otherwise.
I allowed the material at [32] to be admitted, subject to weight. That said, for reasons set out later in this decision, I accept that the affidavits at Tabs 12 and 13 are matters relevant to the separate Class 4 proceedings and so it is appropriate to give them no weight.

Planning framework

The contentions prepared by the Respondent are consolidated behind Tab 2, of the Exhibit marked ‘Master 2’ in the proceedings, and are 75 pages in length.
The Respondent contends that the proposed developments, other than in the E4 Road and RU2 Road Appeal, fail to demonstrate compliance with cl 7.3 of the WLEP which seeks relevantly to protect the hydrological functions of riparian land and waterways.
Clause 7.3 of the WLEP is in the following terms:

7.3   Water protection
(1) The objective of this clause is to maintain the hydrological functions of riparian land, waterways and aquifers, including protecting the following—
(a)  water quality,
(b)  natural water flows,
(c)  the stability of the bed and banks of waterways,
(d)  groundwater systems.

(2) This clause applies to land identified as “sensitive land” on the Natural Resources—Water Map.
(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider any adverse impact of the proposed development on the following—
(a)  the water quality of receiving waters,
(b)  the natural flow regime,
(c)  the natural flow paths of waterways,
(d)  the stability of the bed, shore and banks of waterways,
(e)  the flows, capacity and quality of groundwater systems.

(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that—
(a)  the development is designed, sited and will be managed to avoid any adverse environmental impact, or
(b)  if that impact cannot be avoided—the development is designed, sited and will be managed to minimise that impact, or
(c)  if that impact cannot be minimised—the development will be managed to mitigate that impact.

The Natural Resources – Water Map at cl 7.3(2) identifies a 30m wide strip of “sensitive land” along Racecourse Creek.
As the land in the vicinity of Racecourse Creek is identified as ‘sensitive land’, Part 9, Volume 1 of the Wollondilly Development Control Plan 2016 (WDCP), Environmental Protection applies.
Part 9.3, Control 1 provides, relevantly, that development proposed on areas identified as ‘sensitive land’ on the Natural Resources Water Map must avoid, minimise or mitigate any adverse impact detailed in cl 7.3 of the WLEP.
Racecourse Creek is classified as a fourth order watercourse. Accordingly, a riparian buffer zone of 40m on each side of the waterway applies, and works within this riparian buffer require a Controlled Activity Approval (CAA) under the Water Management Act 2000 (WM Act).
A CAA is authorised by the Natural Resources Access Regulator (NRAR). On 1 June 2020, the NRAR refused to issue a CAA (Exhibit 1, folio 550) on the following grounds:

“Our assessment indicates that adequate arrangements are not in place to ensure no more than minimal harm will be done to any water source or waterfront land as a consequence of the carrying out [of] the proposed work or activity.”

That said, NRAR did provide General Terms of Approval for works described as Equestrian Centre with associated shed, horse stables, horse walkers, internal driveways, earthwork, drainage works and landscaping (Exhibit 1, folio 578).
The ‘Guidelines for controlled activities on waterfront land, Riparian Corridors’, (NRAR Guidelines) (Exhibit 1, tab 15) apply to Racecourse Creek. Waterfront land is defined as follows:

“Waterfront land includes the bed and bank of any river, lake or estuary and all land within 40m of the highest bank of the river, lake or estuary.”

The NRAR Guidelines define a riparian corridor in the following terms:

“A riparian corridor (RC) forms a transition zone between the land, also known as the terrestrial environment, and the river or watercourse or aquatic environment. Riparian corridors perform a range of important environmental functions such as:
providing bed and bank stability and reducing bank and channel erosion
protecting water quality by trapping sediment, nutrients and other contaminants
providing diversity of habitat for terrestrial, riparian and aquatic plants (flora) and animals (fauna)
providing connectivity between wildlife habitats
conveying flood flows and controlling the direction of flood flows
providing an interface or buffer between developments and waterways
providing passive recreational uses. The protection, restoration or rehabilitation of vegetated riparian corridors is important for maintaining or improving the shape, stability (or geomorphic form) and ecological functions of a watercourse.”

The objectives of riparian corridor management are defined as follows (Exhibit 1, folio 524):

“The overarching objective of the controlled activities provisions of the WM Act is to establish and preserve the integrity of riparian corridors. Ideally the environmental functions of riparian corridors should be maintained or rehabilitated by applying the following principles:
Identify whether or not there is a watercourse present and determine its order in accordance with the Strahler System.
If a watercourse is present, define the RC/VRZ on a map in accordance with Table 1.
Seek to maintain or rehabilitate a RC/VRZ with fully structured native vegetation in accordance with Table 1.
Seek to minimise disturbance and harm to the recommended RC/VRZ.
Minimise the number of creek crossings and provide perimeter road separating development from the RC/VRZ.
Locate services and infrastructure outside of the RC/VRZ. Within the RC/VRZ provide multiple service easements and/or utilise road crossings where possible.
Treat stormwater run-off before discharging into the RC/VRZ.”

Also relevant to development proposed to be carried out in or on waterfront land are the ‘Guidelines for watercourse crossings on waterfront land’ (“Crossing Guidelines”) published by the Department of Primary Industries, Office of Water (Exhibit 1, folios 529-532).
Considerations for the design and construction of watercourse crossings are provided, and include:

“The design and construction of crossing structures should consider, but not be limited to, the following:
Identify the width of the riparian corridor in accordance with the NSW Office of Water guidelines for riparian corridors.
Consider the full width of the riparian corridor and its functions in the design and construction of crossings. Where possible, the design should accommodate fully structured native vegetation.
Minimise the design and construction footprint and extent of proposed disturbances within the watercourse and riparian corridor.
Maintain existing or natural hydraulic, hydrologic, geomorphic and ecological functions of the watercourse.
Demonstrate that where a raised structure or increase in the height of the bed is proposed there will be no detrimental impacts on the natural hydraulic, hydrologic, geomorphic and ecological functions.
Maintain natural geomorphic processes.
o Accommodate natural watercourse functions.
o Maintain the natural bed and bank profile.
o Ensure the movement of sediment and woody debris is not inhibited.
o Do not increase scour and erosion of the bed or banks in any storm events.
o Avoid locating structures on bends in the channel.
o Where bed degradation has occurred, address bed degradation to protect the structure and restore channel and bed stability.

Maintain natural hydrological regimes.
o Accommodate site hydrological conditions.
o Do not alter natural bank full or floodplain flows or increase water levels upstream.
o Do not change the gradient of the bed except where necessary to address existing bed and bank degradation.
o Do not increase velocities by constricting flows, for example filled embankments on approaches.

Protect against scour.
o Provide any necessary scour protection, such as rock rip-rap and vegetation.
o Ensure scour protection of the bed and banks downstream of the structure is extended for a distance of either twice the channel width or 20 metres whichever is the lesser.
o If cutting into banks, protect cuttings against scour.

Stabilise and rehabilitate all disturbed areas including topsoiling, revegetation, mulching, weed control and maintenance in order to adequately restore the integrity of the riparian corridor.”

The Crossing Guidelines also contain additional design considerations for bridge crossings:

“…
Ideally, bridges shall be elevated and span the riparian corridor.
Bridge piers or foundations should not be located within the main channel of the watercourse.
The bridge design must be certified by a suitably qualified engineer.”

Additionally, design considerations apply to culvert crossings:

“…
Box culverts are preferred to pipes.
Align culverts with downstream channel.
Incorporate elevated dry cells and recessed wet cells with the invert at or below the stable bed level.
The culvert design must be certified by a suitably qualified engineer.”

The Respondent also contends that the earthworks proposed in the forming of roads, bridge crossings and the Equestrian Centre are in breach of the objectives and controls at cl 7.5 of the WLEP that are in the following terms:

7.5   Earthworks
(1) The objectives of this clause are as follows—
(a)  to ensure that earthworks for which development consent is required will not have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land,
(b)  to allow earthworks of a minor nature without requiring separate development consent.

(2) Development consent is required for earthworks unless—
(a) the work is exempt development under this Plan or another applicable environmental planning instrument, or
(b) the work is ancillary to other development for which development consent has been given.

(3) Before granting development consent for earthworks, the consent authority must consider the following matters—
(a)  the likely disruption of, or any detrimental effect on, existing drainage patterns and soil stability in the locality,
(b)  the effect of the proposed development on the likely future use or redevelopment of the land,
(c)  the quality of the fill or the soil to be excavated, or both,
(d)  the effect of the proposed development on the existing and likely amenity of adjoining properties,
(e)  the source of any fill material and the destination of any excavated material,
(f)  the likelihood of disturbing relics,
(g)  the proximity to and potential for adverse impacts on any watercourse, drinking water catchment or environmentally sensitive area.

Relatedly, the Respondent contends that the Court cannot be satisfied that the land is suitable, or will be made suitable for the purpose for which the development is proposed to be carried out as required by cl 7 of the State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55).
Clause 7 of SEPP 55 is in the following terms:

7   Contamination and remediation to be considered in determining development application
(1) A consent authority must not consent to the carrying out of any development on land unless—
(a)  it has considered whether the land is contaminated, and
(b)  if the land is contaminated, it is satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out, and
(c)  if the land requires remediation to be made suitable for the purpose for which the development is proposed to be carried out, it is satisfied that the land will be remediated before the land is used for that purpose.

(2) Before determining an application for consent to carry out development that would involve a change of use on any of the land specified in subclause (4), the consent authority must consider a report specifying the findings of a preliminary investigation of the land concerned carried out in accordance with the contaminated land planning guidelines.
(3) The applicant for development consent must carry out the investigation required by subclause (2) and must provide a report on it to the consent authority. The consent authority may require the applicant to carry out, and provide a report on, a detailed investigation (as referred to in the contaminated land planning guidelines) if it considers that the findings of the preliminary investigation warrant such an investigation.
…

A map contained at folio 205 of the Respondent’s bundle (Exhibit 1) identifies the location of Endangered Ecological Communities (EEC’s) on the site, as does a ‘field validated’ map prepared by the Applicant’s expert ecologist, Mr Lindsay (Exhibit IR-D, p32), which is re-produced below:

Three EECs are identified on the site:

Western Sydney Dry Rainforest;

Cumberland Plain Woodland (CPW), which is listed as critically endangered; and

River-Flat Eucalypt Forest.

As the Biodiversity Values Map (Exhibit IR-D, p2) identifies these communities on the site, and some clearing of the communities is proposed, cl 7.1(1)(b) of the Biodiversity Conservation Regulation 2017 (BC Regulation) considers the development to exceed the biodiversity offsets scheme threshold,

7.1 Biodiversity offsets scheme threshold (section 7.4)
(1) Proposed development exceeds the biodiversity offsets scheme threshold for the purposes of Part 7 of the Act if it is or involves—
(a) the clearing of native vegetation of an area declared by clause 7.2 as exceeding the threshold, or
(b) the clearing of native vegetation, or other action prescribed by clause 6.1, on land included on the Biodiversity Values Map published under clause 7.3.

…

Given the extent of natural vegetation proposed to be cleared, and the form of earthworks proposed on the site, the Respondent contends that serious and irreversible impacts will result on the sensitive land of Racecourse Creek, and on the EEC’s represented on the site.
Section 7.16 of the Biodiversity Conservation Act 2016 (BC Act) requires the Court to refuse to grant consent to the development application if it is of the opinion that the development is likely to have ‘serious and irreversible impacts on biodiversity values’. Section 7.16 relevantly provides:

7.16 Proposed development or activity that has serious and irreversible impacts on biodiversity values
(1) In this section, serious and irreversible impacts on biodiversity values of proposed development or activity means serious and irreversible impacts on biodiversity values as determined under section 6.5 that would remain after the measures proposed to be taken to avoid or minimise the impact on biodiversity values of the proposed development or activity.
(2) The consent authority must refuse to grant consent under Part 4 of the Environmental Planning and Assessment Act 1979, in the case of an application for development consent to which this Division applies (other than for State significant development), if it is of the opinion that the proposed development is likely to have serious and irreversible impacts on biodiversity values.
…

(4) If the determining authority is of the opinion that the proposed activity to which this Division applies is likely to have serious and irreversible impacts on biodiversity values, the determining authority—
(a) is required to take those impacts into consideration, and
(b) is required to determine whether there are any additional and appropriate measures that will minimise those impacts if the activity is to be carried out or approved.

Section 7.16(1) provides guidance as to the determination of Serious and Irreversible Impacts on biodiversity values by reference to s 6.5 of the BC Act which is in the following terms:

6.5 Serious and irreversible impacts on biodiversity values
(1) The determination of serious and irreversible impacts on biodiversity values for the purposes of the biodiversity offsets scheme is to be made in accordance with principles prescribed by the regulations.
(2) The Environment Agency Head may provide guidance on the determination of any such serious and irreversible impacts, and for that purpose may publish, from time to time, criteria to assist in the application of those principles and lists of potential serious and irreversible impacts.

The regulations referred to in s 6.5(1) of the BC Act are found at cl 6.7 of the BC Regulation as follows:

6.7 Principles applicable to determination of “serious and irreversible impacts on biodiversity values” (section 6.5(1))
(1) This clause applies for the purposes of determining whether an impact on diversity values is a serious and irreversible impact for the purposes of the biodiversity offsets scheme.
(2) An impact is to be regarded as serious and irreversible if it is likely to contribute significantly to the risk of a threatened species or ecological community becoming extinct because—
(a) it will cause a further decline of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to be in a rapid rate of decline, or
(b) it will further reduce the population size of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to have a very small population size, or
(c) it is an impact on the habitat of the species or ecological community that is currently observed, estimated, inferred or reasonably suspected to have a very limited geographic distribution, or
(d) the impacted species or ecological community is unlikely to respond to measures to improve its habitat and vegetation integrity and therefore its members are not replaceable.

(3) For the purpose of this clause, a decline of a species or ecological community is a continuing or projected decline in—
(a) an index of abundance appropriate to the taxon, or
(b) the geographic distribution and habitat quality of the species or ecological community.

(4) If the guidance published by the Environment Agency Head under section 6.5(2) of the Act is changed, a biodiversity assessment report may, during the period of 90 days after the guidance was changed, be prepared on the basis of the guidance in force before the change, but only if the report states that it has been prepared on that basis.

Section 7.7 of the BC Act requires a Biodiversity Development Assessment Report (BDAR) to accompany an application if the application is likely to significantly affect threatened species:

7.7 Biodiversity assessment for Part 4 development (other than State significant development or complying development)
(1) This section applies to an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979, except—
(a) an application for development consent for State significant development, or
(b) an application for a complying development certificate.

(2) If the proposed development is likely to significantly affect threatened species, the application for development consent is to be accompanied by a biodiversity development assessment report.

A BDAR is to be considered by the consent authority, or the Court on appeal, when assessing the likely impact on biodiversity values, in accordance with s 7.13 of the BC Act in the following terms:

7.13 Development other than State significant development or infrastructure
(1) This section applies to an application for development consent under Part 4 of the Environmental Planning and Assessment Act 1979 that is required under Division 2 to be accompanied by a biodiversity development assessment report, except—
(a) an application for development consent for State significant development, or
(b) an application for a complying development certificate.

(2) The consent authority, when determining in accordance with the Environmental Planning and Assessment Act 1979 any such application, is to take into consideration under that Act the likely impact of the proposed development on biodiversity values as assessed in the biodiversity development assessment report that relates to the application. The consent authority may (but is not required to) further consider under that Act the likely impact of the proposed development on biodiversity values.
…

Where the Court is minded to grant consent to an application to which the biodiversity offset scheme applies, subcl 7.13(3) requires the conditions of consent to appropriately provide for the retiring of biodiversity credits as follows:

(3) If the consent authority decides to grant consent and the biodiversity offsets scheme applies to the proposed development, the conditions of the consent must require the applicant to retire biodiversity credits to offset the residual impact on biodiversity values of the number and class specified in the report (subject to subsection (4)). The residual impact is the impact after the measures that are required to be carried out by the terms or conditions of the consent to avoid or minimise the impact on biodiversity values of the proposed development (being measures on which the report was based).
Note. Division 6 of Part 6 enables a person who is required under this section to retire biodiversity credits to make a payment instead to the Biodiversity Conservation Fund of the value of the credits in accordance with the offsets payment calculator.
(4) The consent authority may reduce or increase the number of biodiversity credits that would otherwise be required to be retired if the consent authority determines that the reduction or increase is justified having regard to the environmental, social and economic impacts of the proposed development. The consent authority must give reasons for a decision to reduce or increase the number of biodiversity credits.
(5) A condition to retire biodiversity credits is required to be complied with before any development is carried out that would impact on biodiversity values. However, a consent to a concept development application may provide for a corresponding staged retirement of biodiversity credits before each stage of development is carried out and without the need for a further biodiversity development assessment report in connection with development applications for the subsequent stages of the development.
(6) This section does not operate to limit the matters that a consent authority may take into consideration—
(a) in relation to the impact of proposed development on biodiversity values, the measures that a consent authority may require to avoid or minimise those impacts or the power of a consent authority to refuse to grant consent because of those impacts, or
(b) in deciding whether to reduce or increase the number of biodiversity credits to be retired.

(7) If a consent authority fails to include a condition relating to the retirement of biodiversity credits required by this section (or fails to give reasons for a decision to reduce or increase the number of biodiversity credits), the Environment Agency Head may impose or vary that condition in accordance with this section in the same manner used by the consent authority in granting the development consent.

In s 6.12 of the BC Act, a BDAR is described as follows:

6.12 Biodiversity development assessment report
For the purposes of the biodiversity offsets scheme, a biodiversity development assessment report is a report prepared by an accredited person in relation to proposed development or activity that would be authorised by a planning approval, or proposed clearing that would be authorised by a vegetation clearing approval, that—
(a) assesses in accordance with the biodiversity assessment method the biodiversity values of the land subject to the proposed development, activity or clearing, and

(b) assesses in accordance with that method the impact of proposed development, activity or clearing on the biodiversity values of that land, and
(c) sets out the measures that the proponent of the proposed development, activity or clearing proposes to take to avoid or minimise the impact of the proposed development, activity or clearing, and
(d) specifies in accordance with that method the number and class of biodiversity credits that are required to be retired to offset the residual impacts on biodiversity values of the actions to which the biodiversity offsets scheme applies.

The Respondent contends that the BDARs prepared by Mr Lindsay in respect of the appeals before the Court do not adequately address the requirement to ‘avoid’ and ‘minimise’ the impact on biodiversity values of the site in the manner set out in Section 7.1.1 of the Biodiversity Assessment Method 2020 (“the BAM”) (Exhibit 2, tab 2).
Section 7.1.1 of the BAM states:

“7.1.1 Locate the proposal to avoid or minimise direct and indirect impacts on native vegetation, threatened species, threatened ecological communities and their habitat
1. Knowledge of biodiversity values should inform decisions about the location of the proposal. The initial assessment of biodiversity values from Stage 1 may be used to inform the early planning of the route or location of a proposal.
2. Selecting a final proposal location may be an iterative process. Decisions may need to be revisited after all field surveys have been completed.
3. Impacts from clearing native vegetation and threatened species habitat can be avoided or minimised by locating the proposal in areas:
a. lacking biodiversity values
b. where the native vegetation or threatened species habitat is in the poorest condition (i.e. areas that have a low vegetation integrity score)
c. that avoid habitat for species with a high biodiversity risk weighting or land mapped on the important habitat map, or native vegetation that is a TEC or a highly cleared PCT.
d. outside of the buffer area around breeding habitat features such as nest trees or caves.

4. When selecting a proposal’s location, all of the following should be analysed. Justification for the decisions in determining the final location must be based on consideration of:
a. alternative modes or technologies that would avoid or minimise impacts on biodiversity values
b. alternative routes that would avoid or minimise impacts on biodiversity values
c. alternative locations that would avoid or minimise impacts on biodiversity values
d. alternative sites within a property on which the proposal is located that would avoid or minimise impacts on biodiversity values.”

At paragraph 7.1.1(6), there is also a requirement that “the assessor must document and justify any actions taken to avoid or minimise impacts through careful location of the proposal.”

An amount of fill is on the site

It is common ground between the parties that a substantial volume of ‘fill’ has been brought on to the site sometime in the past, without development consent, that has had the effect of changing the levels on the site.
In simple terms, the fill is evident in the build up of roads, and in a large platform of earth in the vicinity of the proposed Equestrian Centre.
The circumstances of this fill being deposited, by whom and when, are the subject of separate proceedings. However, the parties differ as to what, if any, consideration should be given to the environmental impact of fill on the site in these proceedings.

The Respondent’s position on the ‘fill’

According to the Respondent, the correct approach to assessing the environmental impact of the proposed development is to consider the site in the state it was prior to the deposition of fill, that is characterised by the Respondent as unauthorised earthworks.
The unauthorised earthworks have changed the landform in the following areas of the site:

On the internal road leading from Remembrance Driveway, the level of the road has been elevated to the level of the current ‘double-stacked’ culvert, which is higher than the lower single-level culvert bridge that had existed prior to the deposition of fill;

On what was referred to in proceedings as the ‘southern loop road’, the subject of the Internal Roads Appeal, past the culvert on the right-hand bend where an observation was made at the onsite view that the level had been raised by about 5m or more. The fill supporting this elevated road has acted as a dam, forming a substantial pond;

At the site of the proposed Equestrian Centre where there has been a similar level change; and

On the RU2 Road and on the E4 Road, where excavation and fill is evident and where slumping and sloughing has occurred. (RWSC par 27)

According to Mr Barwick, changes to the landform have had the effect of altering the visual character of the site, not from a particular vantage point, but when the site is considered as a whole, contrary to the objectives of the RU2 zone.
The Court must approach its task as if the unauthorised earthworks had never occurred (RWSC, par 44), but in undertaking such an exercise it is not assisted by the evidence of the Applicant’s experts, particularly the expert ecologist Mr Linsday, whose assessment only considers the prospective impacts of the proposed development, on the assumption that the unauthorised earthworks are a pre-existing condition and so does not assess the impact of the unauthorised earthworks under the WLEP or the WDCP.
This is particularly relevant as some of the fill has been placed in areas of the site where there are EECs, and in areas where cll 7.3 and 7.5 of the WLEP and the Natural Resources Access Regulator (NRAR) Guidelines apply.
The earthworks have already had considerable impact, evident in the collapse and slumping of material from batters into vegetation that forms part of EEC’s, and the deposition of sediment into Racecourse Creek resulting from the building up of earth to the higher level of the concrete culvert bridge (AWSC par 67).
While the unlawfulness of the earthworks is not the subject of these proceedings, the Respondent submits that a person who has carried out unlawful works should not gain an advantage from those works.
To this end, the Respondent considers the circumstances in Ralph Lauren Pty Ltd v New South Wales Transitional Coastal Panel; Stewartville Pty Ltd v New South Wales Transitional Coastal Panel; Robert Watson v New South Wales Transitional Coastal Panel [2018] NSWLEC 207 (Ralph Lauren) to be virtually identical.
While the factual circumstances in Ralph Lauren differ, the Respondent argues that the finding made by Preston CJ at [127]-[129] is applicable in the circumstances of this case.
In that case, the Applicant proposed additional works to a sea wall that had been constructed without development consent. The Court was required to be satisfied that the works would not unreasonably limit public access to a beach, and the Applicant argued that this was satisfied because the works now proposed would have no further adverse impact beyond what had already been constructed.
In Ralph Lauren, His Honour found, relevantly, that:

“…
The assessment of the degree and significance of the limitation, impediment or diminishment of public access to and use of the beach, and of any unreasonableness of such limitation, is to be undertaken without regard to the existing sea walls and the extent to which they limit, impede or diminish public access to or use of the beach. The existing sea walls are not lawful. No development consent has been sought or obtained for the carrying out of the existing sea walls on the beach in front of each of the land owners’ properties. By law, the sea walls should not exist on the beach.
The unlawfulness of the existing sea walls does not preclude the land owners applying for development consent under the EPA Act to carry out works to repair the existing sea walls. Development consent can be granted to the future carrying out of a work and the future use of works on land. However, the consideration of such future development is to be done without regard to the past unlawful works and unlawful use.
…
[The Applicant’s] argument that the repaired sea walls will not result in any additional limiting, impeding or diminishing of public access to or use of the beach beyond the limitation, impediment or diminishment caused by the existing works, and hence that the limitation caused by the repaired works cannot be considered to be unreasonable, is based on and seeks to take advantage of the unlawful existing works and use. It is to be rejected.”

The Respondent considers the arguments of the Applicant in this case to be indistinguishable from those of the Applicant in Ralph Lauren when it advances that, because the unauthorised earthworks, like the sea wall, have already been undertaken, these impacts should be taken to exist and consideration of the controls in respect of the unauthorised earthworks is irrelevant to the Court’s consideration of the applications now before it.
This leads to flaws in the Applicant’s argument, evident in the assumptions underlying expert assessment of the site conditions. The BDARs and the joint expert report as undertaken by Mr Lindsay repeatedly takes as a baseline for assessment the earthworks (and its impacts) as presently exist.
In doing so, Mr Lindsay fails to include in his assessment the impact of the unauthorised earthworks associated with, firstly, the construction of the southern loop road (Internal Roads Appeal, Crossing Upgrade Appeal and BIC Appeal), that traverses an EEC, and secondly, took as its baseline the erosion, slumping, and edge effects caused by the construction of the unauthorised earthworks (E4 Road and RU2 Road Appeals), and so seeks to benefit from the degradation caused by those works in concluding, for example, that the development is not likely to have a detrimental impact because the land is already edge effected.
The fact that Mr Lindsay adopted the wrong baseline for his assessment infects every part of his opinion, from his assessment of avoidance measures, to direct and indirect impacts, and the calculation of offsets. In those circumstances, the Court does not have sufficient information to determine whether the environmental impacts of the development, when properly assessed, are acceptable.

The Applicant’s position on the ‘fill’

The Applicant submits that it does not seek to ‘regularise’, or seek consent for works already undertaken on the site and the landform evident on the site today is the consequence of past actions that have gone before, and that are properly the subject of separate proceedings.
Instead, the development the subject of the development applications before the Court in these proceedings must be considered on their merits, which is an exercise that cannot be undertaken by a theoretical reconstruction of the terrain in a form other than that evident today.
To the extent that past unlawful conduct such as land clearing is asserted by the Respondent, it is denied, and is, in any event, not a relevant consideration in a Class 1 matter, as has been consistently held by the Court in line with the decision by the full court of the Supreme Court of South Australia in Kouflidis v Salisbury City Corp (1982) 29 SASR 321; (1982) 49 LGRA 17 (Kouflidis).
In Jonah v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 (Jonah), Preston CJ set out the stream of authorities that flowed from Kouflidis, concluding, at [35]-[36], that it is irrelevant to enquire when undertaking a merit determination, as to who is the current owner/operator, or who might be the future owner/operator, or whether the present owner/operator has in the past acted or used the land unlawfully, or whether the future owner/operator is likely in the future to act or carry out any approved use unlawfully.
To do otherwise would be to proceed on the “twin assumption” that the Court, in separate proceedings, would find the past use unlawful, and, even if found to be unlawful, the Court would restrain that use.
Likewise, Moore SC, as he was then, in Chami v Lane Cove Council [2015] NSWLEC 1003 at [154], also held that “past conduct is not a relevant consideration in a merit assessment process; any such issues are confined to enforcement through different legislative mechanisms (and in jurisdictions not able to be exercised by Commissioners of the Court)”.
More recently, in the decision by Preston CJ in Ralph Lauren, at [128], the fact an existing sea wall was unlawful did not preclude the land owners from applying for development consent under the EPA Act to carry out works to the sea wall, and consideration of future development was undertaken without regard to the past unlawful works and unlawful use.
The upshot, according to the Applicant, is that a decision-maker must close its eyes to assertions of past unlawfulness in matters such as this.
For the Court to do otherwise would lead it in to error as it would give rise to a decision designed to punish the Applicant even though “No assumption should be made that the Council will succeed in establishing that the unlawfulness of the past use or, if unlawfulness is established, that the Court will restrain that use.” (Jonah at [36])

The fill is a relevant consideration

The task of the Court in this matter is to determine applications for development consent, in accordance with s 4.16 of the EPA Act, and an application for a building information certificate, pursuant to s 8.25 of the EPA Act.
In undertaking this task, I am required to evaluate the development the subject of the development applications, and to apply the law and facts as they exist at the time of hearing and determination of the appeal: Sofi v Wollondilly Shire Council [1975] 2 NSWLR 614 at 622; Nalor Pty Ltd v Bankstown City Council [1980] 2 NSWLR 630 at 634-635
It is an agreed fact that fill is evident on the site at present, in respect of which there are separate Class 4 proceedings on foot. Whether or not a breach is found, and whether or not orders are made in those proceedings is not a relevant consideration in this matter.
Accordingly, it is appropriate for the Court to close its eyes, in this matter, to assertions of past unlawfulness. However as shown by Preston CJ in Jonah that does not mean that past use – without any consideration of its unlawfulness – cannot ever be relevant. Past use may be of relevance where it is for proper planning reasons, not because the past use, or works, happened to be unlawful. The unlawfulness of the past use, or works, is not relevant (Jonah, at [37]).
I accept the Applicant’s submission that the Court is unable to erase the fill from the circumstances of this case where the extent of fill deposited on the site is not documented and so its footprint, and therefore its likely impacts cannot be readily understood. This is because the Court cannot undertake the evaluation said by the Respondent to be required of it, on the mere assumption of a circumstance that is not part of the facts that comprise the proceedings before it.
However, in this case, the parties agree that fill has been imported on to the site. The evidence of the run sheets annexed to the Martens Letter of 26 February, and relied upon by the Applicant, indicate a timeframe between 2019-2020 in which fill was delivered to the site.
Furthermore, the Applicant seemingly acknowledges the same, as I understand it, by documenting the footprint of fill, presumably deposited in 2019-2020, in drawing PS05-ZZ01 Rev B accompanying the Class 1 Application in the Internal Roads Appeal (IR-A), prepared by Martens and re-produced below, which identifies the northern and southern loop roads in hatching denoted as the ‘Extent of works already completed’.

Accordingly, it appears to be a fact in this case is that fill, documented at [101] on land the subject of the Internal Roads Appeal, imposes itself on areas identified at [54] as EEC’s.
The lawfulness or otherwise of the deposition of this fill is the subject of separate proceedings. However, the impact of the fill documented at [101] is relevant to these proceedings, in the event the Court considers the Internal Roads Appeal, to which the drawing applies.
This is the answer to the Respondent’s argument that the Applicant seeks to gain advantage from the unlawful works, as was found to be the case in Ralph Lauren.
In answer to the Respondent’s submission that the expert evidence relied on by the Applicant is founded on the incorrect baseline, and should assess the environmental impact differently to that undertaken, this can only be considered by reference to the evidence itself, which I now propose to do.
Two issues are raised in respect of the fill,

Stability of the fill; and

Remediation of the land.

Stability of the fill

Mr Ben Gibbons and Dr Daniel Martens conferred in the preparation of the joint expert reports in civil engineering at Exhibits 7, BIC-2 and a supplementary joint expert report at Exhibit 11.
Mr Gibbons is concerned that the Geotechnical report marked Exhibit IR-F identifies there are areas of uncontrolled fill on the site that are poorly compacted and so will require the removal and stockpiling of soil material on the site to achieve the final design levels.
Without a staging plan, Mr Gibbons cannot be satisfied that the stockpiling of soil will be accommodated on site without impacting native vegetation, and without a Construction Management Plan (CMP), Mr Gibbons lacks evidence as to the method to be adopted by the Applicant in managing the removal, treatment and return of fill on the site.
The extent of works required to ensure stability and integrity of the subgrade surface lying below the cut and fill necessary to achieve the design levels shown in the various appeals are uncertain without a Construction Management Plan (CMP) detailing the same.
Dr Martens considers it reasonable that concerns remain, as it is common for the extent of compaction to be unknown until works commence and a supervising geotechnical engineer is satisfied.
Annexure C of the Geotechnical Investigation Report (Ex IR-F) identifies a series of Dynamic Cone Penetrometer (DCP) tests that demonstrate, according to Dr Martens, stability and firmness in the fill material as long as the unit of measure is rated ‘5’ or above.
Where the fill fails to achieve a unit of measure that is rated ‘5’ or above, I understand the bearing capacity of the underlying fill is considered ‘soft’ or ‘poor’, and certain procedures would apply.
In broad terms, I understand these procedures may include rolling, compacting, further testing and, if required, reinforcement in the form of subsurface geotextile fabric or the like.
In Dr Martens’ experience, these matters are appropriately dealt with in conditions of consent requiring finalising prior to the Construction Certificate.
That said, the Applicant proposes a condition of consent to encompass those matters agreed between the experts at Issue 2 (a)-(g) (Exhibit 7), and to the satisfaction of the Respondent.

Remediation of the site

Mr Jason Clay and Mr Andrew Norris conferred on prior to the hearing and prepared the joint expert report on contamination marked Exhibit 4.
Exhibit 4 is supported by 3 volumes, and the experts identify the relevant documents as follows:

Attachment A – Site Audit Statement, prepared by Mr Rod Harwood of Harwood Environmental Consultants, behind which the Remedial Action Plan prepared by Martens dated July 2021 is to be found.

Attachment B – Detailed Site Investigation, prepared by Martens dated July 2021.

Attachment C – Site Audit Report prepared by Harwood Environmental Consultants dated July 2021.

Attachment D – Statement of compliance for Recovered Glass Sand Supply Arrangements prepared by Mr Luke Krstanovski of VISY dated 3 April 2020.

Attachment E – Review of Martens Correspondence 20 April 2021, prepared by Mr Clay dated 3 May 2021.

The evidence of the experts was focused on three primary areas:

Whether the site investigation undertaken is sufficient.

The RGS Stockpile.

Proposed treatment of asbestos containing material found onsite.

Whether the site investigation is sufficient

The Applicant submits that the Detailed Site Investigation identifies six phases of investigation comprising 226 test pits, 52 bore holes and six groundwater monitoring wells, and nowhere in the joint expert report is it suggested that the extent of testing is deficient.
Instead, on the basis of the Remediation Action Plan, and Site Audit Report, the Court can be satisfied that the site, while contaminated, will be made suitable, after remediation, for the purpose for which the development is proposed to be carried out in accordance with cl 7 of SEPP 55.
In the joint expert report, Mr Clay acknowledges that the Applicant has engaged a site auditor who has approved the Remedial Action Plan, but holds that the Site Audit Statement is deficient on a number of grounds, including:

The auditor has failed to report to the EPA the importation of material that does not meet the definition of Virgin Excavated Natural Material (VENM).

The auditor has neglected to include conditions required by the EPA on Section B Site Audit Statements for the ongoing monitoring of the remediation works, and the issuance of an occupation certificate being contingent upon a suitable Section A Site Audit Statement being provided.

The RGS stockpile

Within the area of the site the subject of the RU2 Roads Appeal is a mound of Recovered Glass Sand (RGS) that is referred to as the ‘RGS Stockpile’, and which Mr Norris estimates to comprise 1,600 tonnes of material.
The experts agree that the RGS was most likely brought on to the site for use in road construction on the site, which is a purpose for which RGS may be applied to land under the Resource Recovery Order (RRO) in accordance with Section 1.1 of the NSW EPA Recovered Glass Sand Exemption 2014 (the Exemption).
Emanating from the RGS stockpile is leachate that was observed at the onsite view, appears present in the drone footage, and is a source of disagreement between the contamination experts in their written and oral evidence.
According to Mr Norris, any material that is stockpiled for a period of time, and is exposed to weather, is likely to result in a mobilising of its constituents, as is the case here.
Mr Norris is also of the opinion that the ammonia found in the leachate is unsurprising given that one source of the RGS is from household ‘yellow bin’ waste that may have residual food material and liquids that will be mobilised through the action of rain and overland flow.
This is more likely, in Mr Norris’ view, than the hypothesis advanced by Mr Clay in his letter dated 3 May 2021 (Attachment E) that the leachate may be as a result of chemical waste co-disposal (p 4).
It is Mr Clay’s strong view that the certification provided by the supplier of the RGS (Attachment D) is generic, batch-generated, is not particular to the material in this stockpile, and in any event the RRO is not a license to pollute.
Furthermore, the terms of the RRO do not exempt a site owner from enforcement action where pollution results, and Section 4.3.7 of the NSW Environmental Protection Authority Guidelines for the NSW Site Auditor Scheme (2017) (NSW EPA Guidelines) requires a site auditor to notify the NSW EPA in circumstances where the auditor suspects that waste received on a site does not meet the conditions of an order.
The experts agree that a contributing factor that has given rise to the leachate is that the RGS stockpile has not been used for the purpose for which it was procured in the first place.
Instead of being used in road construction, the RGS material has been stockpiled on the site due, in part, to a Council Prevention Notice (Exhibit Supp-A, tab B) and undertakings made by the Applicant in separate Court proceedings.
The experts agree that the RGS is capable of being used in road construction if mixed with other materials prior to use for such a purpose.
Mr Norris supports advice contained in the site audit statement for the RGS to be isolated and placed on a HDPE liner prior to its use in road construction, which is in similar terms to action proposed by Martens to construct an earth mound, or swale, upslope of the RGS stockpile to divert overland flow, and a sump on the downslope to collect leachate, and to cover the RGS stockpile.
While Mr Clay’s view in Attachment E is that the RGS stockpile may be contaminated and so be outside the conditions of the Exemption, he supports the proposed action above.

Proposed treatment of asbestos containing material found onsite

According to the Detailed Site Investigation, laboratory analysis undertaken by Envirolab Pty Ltd confirms asbestos is present in fill on the site.
The asbestos is in the form of Asbestos Containing Material (ACM), and Asbestos Fines/Fibrous Asbestos (AF/FA).
Following collection of 178 samples on the site, testing confirmed the presence of ACM on the site exceeding the asbestos health screening level (Table 8), and of AF/FA exceeding the reporting limit (Table 16).
The location of asbestos on the site is in the area subject to the E4 Road and RU2 Road Appeals, and the Equestrian Centre Appeal as shown on Map 02 ‘Remediation Areas and Proposed Cap Extent’, annexed to the Remedial Action Plan, and re-produced below:

I record here that the Statement of Environmental Effects prepared by Martens dated August 2020 in support of the E4 Road application (Exhibit E4-A) states the following:

“The works area has no known history of contamination due to previous use. The imported material has been classified as VENM [virgin excavated natural material] and therefore is uncontaminated.”

The Statement of Environmental Effects prepared by Martens dated September 2020 in support of the RU2 Road application (Exhibit RU2-A) is in similar terms:

“The works area has no known history of contamination due to previous use. Any imported material has been certified by suppliers as uncontaminated.”

I record here that the thirteen sites from which fill is imported are set out in Attachment A of the Martens Letter of 26 February (Exhibit 4, Tab F). In each case, the fill is classified as VENM.
The Detailed Site Investigation records the apparent departure from the classification of fill as VENM, to contaminated fill in certain investigation areas (IAs) as follows (p13):

“Initial works identified material in the Equestrian Centre IA and RU2 Road and E4 Road IAs which was inconsistent with the imported material documentation (i.e.VENM) due to the observation of anthropogenic inclusions such as building waste. Cement fibre sheeting fragments were also observed at the surface and as part of inclusion in the fill material at the Equestrian Centre IA and RU2 and E4 Road IAs.”

Section 4.2 of the Remedial Action Plan (RAP) identifies the extent of remediation required in the investigation areas in the following terms:

“Asbestos impacted fill material requiring remediation was identified in two areas, as shown on Map 02 (Attachment A). The approximate extent of filling has been mapped based on onsite test pit investigations, site walkovers and aerial photograph interpretation. Some areas where imported fill material was identified are outside of those Site areas to be filled as party of the proposed development.
Two areas requiring remediation have been identified at the site:
Remediation Area 1 - A section of the RU2 Road and E4 Road IA (approximately 0.6ha), towards the north of the IA, where imported fill material has been placed for the construction of an access road.
Remediation Area 2 – Fill material (approximately 5.8 ha) placed in the Equestrian Centre IA.”

The RAP proposes to excavate approximately 1,200m³ of material in Remediation Area 1, and to cap the material in Remediation Area 2 (p 24).
The RAP also proposes a Licensed Asbestos Removal Contractor, a suitably qualified environmental consultant, and a suitably licensed earthworks contractor be engaged (p 22).
The Applicant proposes to prepare a Long Term Environmental Management Plan detailing:

The presence and location of capped ACM impacted material as described in the DSI.

Maintenance requirement for the constructed capping material.

Procedures for any future required works beneath the capping layer (e.g. future services installation).

Mr Clay considers the proposed remediation of the asbestos to necessitate an Environmental Management Plan (EMP), as identified by the site auditor in Attachment A, while it is Mr Norris’ view that an EMP is commonly provided at the Construction Certificate stage.
While the experts dispute aspects of the proposed remediation of the site, Mr Norris believes the Court can be satisfied that the site is able to be made suitable for the proposed purpose in accordance with cl 7 of the SEPP 55 and I note here that Mr Clay’s written and oral evidence is supportive of the same.

Assessing the likely impacts on biodiversity

The Court was assisted by experts in ecology, Mr Michael Sheather-Reid and Mr Kurtis Lindsay who conferred prior to the hearing and prepared the joint expert report in respect of the development appeals, marked Exhibit 10, and in respect of the Building Information Certificate marked Exhibit BIC-4.
Exhibit 10 contains two annexures:

Appendix A is an assessment of the site under the State Environmental Planning Policy (Koala Habitat Protection) 2020, in respect of which contentions are not pressed, and

Appendix B is a Vegetation Management Plan (VMP) prepared by Mr Lindsay, in accordance with the ‘Guidelines for Vegetation Management Plans on waterfront land’, published by the Department of Primary Industries, Office of Water.

It is also relevant to record here that Mr Lindsay prepared BDARs on behalf of the Applicant for:

Crossing Upgrade Appeal (marked Exhibit CU-D).

E4 Roads Appeal (marked Exhibit E4-D).

RU2 Roads Appeal (marked Exhibit RU2-D).

Internal Roads Appeal (Exhibit IR-D).

New Crossing Appeal (Exhibit NC-D).

In respect of the Equestrian Centre Appeal, Mr Lindsay prepared a Flora and Fauna Assessment (marked Exhibit EQ-M).

In simple terms, the Respondent identifies environmental impacts imposed on biodiversity values and identified landscape features of the site arising from:

Firstly, unauthorised fill adversely impacting EEC’s, and

Secondly, in respect of the existing concrete culvert bridge, and the proposed concrete culvert bridge.

The BAM requires an assessment of landscape features that Mr Lindsay understood to be an assessment of what was on the site at the time of his site visit in 19 November 2020, which included the unauthorised fill material.
In particular, at the time of his visit, the unauthorised fill formed the southern loop road, within the area of the Internal Roads Appeal, which Mr Lindsay considers to be in the location of an existing cattle track visible to him on Nearmap images (Ex 2, tab 14), and supported by information provided to him by the Applicant.
Whether or not the Southern loop road is in the same location as a former cattle track, that track would have been at grade and not on fill, according to the Respondent. Instead, the Southern Loop Road is on fill, and in a location where the Cumberland Plain Woodlands (CPW) and River Flat Eucalypt Forest EEC’s are located.
Furthermore, it is in this location that Mr Sheather-Reid believes the fill imposes edge-effect impacts on the EEC’s that should be minimised by the removal of fill beyond the line of the batters, the gradient of batters made steeper than those proposed, and be revegetated.
The Applicant has also failed to undertake measures to avoid or minimise impacts on the EECs that would be satisfied by, for example, relying solely on the Northern Loop Road which would obviate the need for the Southern Loop Road. Instead, the Applicant imposes an impact on the site by reliance on both the Northern and Southern loop roads.
Mr Lindsay’s oral evidence is that he has assessed the site as it was evident to him at the time of the assessment, and on the advice of the design engineers as to the works proposed.
Mr Lindsay understands the form of the southern loop road has not changed since November 2020, and considers it reasonable that data collected by him at that time be an appropriate baseline.
This ‘as-found’ condition extends, according to Mr Lindsay, to what is described on p 6 of the joint expert report (Exhibit 10) as the collapse of fill material from batters into vegetation.
This fill, according to Mr Sheather-Reid, was observed during an inspection of the site by him in August 2020 during which time Mr Sheather-Reid concluded that it had the following impact on native vegetation in the area of the E4 Road Appeal:

Unconsolidated fill had been placed to widen the existing track and pushed downslope into native vegetation.

Significant mobilised sediment migrated into the adjoining creek line.

Soil slumping to within 1m of the existing channel due to recent placement.

No attempt at sediment and erosion control had been undertaken.

Fill had been pushed into vegetation mapped as CPW in the BDAR.

By contrast, Mr Lindsay concludes that the collapse is naturally occurring, as is consistent with the behaviour of Wianamatta Shale of the Picton Soil Landscape, and because there is no proof that the collapse of material was deliberate, or resulted in clearing of native vegetation.
In preparing the relevant BDAR’s for the appeals, Mr Lindsay has considered the impacts of fill proposed by the applications before the Court, but is of the view that he cannot consider historical fill as the extent of fill claimed to be historical is unknown to him.
Further, Mr Lindsay has not considered what Mr Sheather-Reid regards as evidence of historical clearing on the site as neither the provisions of the BC Act or the BAM requires assessment of historical clearing in the calculation of biodiversity offset credits.
That said, the BDAR prepared by Mr Lindsay repeatedly states that the area adjacent to the ‘vehicle track’ “is already historically cleared and managed”. (Exhibit IR-D, pp60-61, 64-65).
The Applicant submits that the only fill proposed in the applications before the Court is limited to toppings intended for the sealing of roads and gravel or the like for the horse arena within the Equestrian Centre.
Mr Sheather-Reid’s concern at the failure to consider historical clearing in the BDAR, which he estimates to amount to 1.5 ha, is two fold:

Firstly, current owners undertook the clearing and it is appropriate for whoever undertook the clearing to be held accountable; and

Secondly, if omitted from the assessment, will distort the baseline in the BDAR.

Mr Sheather-Reid states in his oral evidence that historical clearing is a ground on which an assessor is granted discretion to select an alternative site when undertaking plot-based surveys.
As I understand Mr Sheather-Reid’s evidence, the discretion is found in Section 8.6 of the BAM which permits an assessor to identify an alternative location for plot-based surveys in nearby or other vegetation if, for example, the assessor considers recent works have altered the land so that it is not representative of the relevant Plant Community Type (PCT).
This discretion should have been, but was not, exercised by Mr Lindsay when undertaking the plot-based survey at Plot 9, indicated in Figure 10 (Exhibit IR-D, p32) and the subject of the disagreement at [162]-[163].
The inputs recorded by Mr Lindsay when undertaking the plot-based surveys were described in oral evidence, and appear in BAM VIS (Vegetation Impact Score) Field Survey Forms at Appendix B of the BDAR (Exhibit IR-D).
Consistent with the BAM, plots of 20m x 20m were used, although Mr Lindsay also notes that discretion extends to amending the size or geometry of a plot, or to identifying an alternative plot if it is compromised, and where the alternative plot is representative, and the same or greater in richness.
It is this discretion to identify alternative locations for plot-based surveys that Mr Sheather-Reid states was not exercised, but believes should have been. Instead, Mr Lindsay’s BDAR relies on plot-based surveys taken from areas in the E4 Road Appeal and Internal Roads Appeal that are not representative of the PCT’s proposed to be cleared, including Cumberland Plains Woodland and River Flat Eucalypt Forest.
In respect of Mr Sheather-Reid’s first concern at [168], the unlawfulness of the past use, or works, is not relevant to these proceedings.
In respect of Mr Sheather-Reid’s second concern, I consider it immaterial as to whether the fill, sometime after being deposited, has slumped due to natural processes, as suggested by Mr Lindsay, or by deliberate or careless deposition, as suggested by Mr Sheather-Reid, and I accept that there is an absence of evidence in these proceedings as to the objective basis of his assertion that has led to the calculation of 1.5ha of historical clearing, notwithstanding the extent of fill ‘already completed’ on land the subject of the Internal Roads Appeal at [101], and the references in Mr Lindsay’s BDARs to land that appears ‘historically cleared and managed’.

Assessment of the direct and indirect impacts on biodiversity values

Section 7.1 of the BAM requires an assessment of the direct and indirect impacts on biodiversity values on native vegetation, threatened species, threatened EEC’s and their habitat.
In general terms, this requires a proponent to consider how a proposal has, firstly, avoided, and secondly, minimised impacts to a site. Only then is the nature and extent of biodiversity offset credits assessed.
Mr Sheather-Reid accepts that the proposal has taken steps to avoid and minimise impacts in the following ways:

That reuse of the existing culvert crossing, the subject of the Crossing Upgrade Appeal and BIC Appeal, avoids impacts that are otherwise proposed by works associated with the New Crossing Appeal.

Roads that are the subject of the Internal Roads Appeal minimise impact by being located within areas of existing clearing.

However, impacts are not avoided or minimised because:

In respect of the Crossing Upgrade Appeal, the number of trees proposed to be removed is unacceptable;

Existing batters associated with the Internal Roads, RU2 Road and E4 Road impose the impact described at [157];

The toilet and wash bay the subject of the Internal Roads and BIC Appeal are the source of sediment and pollutants such as hydrocarbons that impact remnant EEC;

Instead of relying upon the Northern Loop Road for access through the site, the Applicant seeks consent for works associated with the Southern Loop Road as well, effectively doubling the impact instead of minimising it;

Civil engineering drawings provide insufficient detail such as gradient, compaction, and precise extent of each condition.

The Applicant seeks to retire biodiversity offset credits arising from the residual impacts of the appeals the subject of these proceedings.
Mr Lindsay describes the method adopted when calculating biodiversity offset credits in the preparation of the BDAR as an exercise in overlaying a polygon representing the development impact boundaries on the mapping of native vegetation.
The polygon at Figure 10, Exhibit IR-D, was generated by Martens to determine the maximum limit of disturbance on native vegetation by direct or indirect means.
Section 6 of the BDARs sets out the ways in which Mr Lindsay considers the requirements to ‘avoid’ and ‘minimise’. Direct impacts that have been avoided or minimised are set out at Section 6.1.1 of the BDAR, and may be summarised as follows:

In similar terms, Mr Lindsay identifies the nature, extent and duration of short and long-term impacts on water quality in the following terms:

“The construction of the new crossing may require temporary damming and dewatering of the creek. This could affect water quality though temporary stagnation on the upstream side. After the construction phase, no further impediment to the creek is expected.
The exposure of bare soil during clearing and construction will cause increased risk of erosion and sedimentation into the watercourse and this could lead to pollution of the stream from coarse particles (turbidity) as well as nutrient enrichment, hydrocarbons and heavy metals, however this risk will be managed in accordance with best practice as the applicant will enact the recommendation of ‘The Blue Book’ (Landcom 2004) and associated Engineering Plans (Martens & Associates 2021).”

The assessment of biodiversity undertaken by Mr Lindsay includes biodiversity that is both aquatic and terrestrial. As it is put by Mr Linsday in his oral evidence: “aquatic species can’t be terrestrial biodiversity, but you can have species that are both aquatic and terrestrial.”
Mr Lindsay cites the River-Flat Forest EEC as an example of a species that is both aquatic and terrestrial because it is dependent on the river system, and so forms part of his assessment, however, it is not the purpose of a BDAR to assess purely aquatic organisms such as fish.
Additionally, Mr Lindsay states in the joint expert report an assessment of the aquatic ecology downstream of the proposed development was outside the scope and brief of his engagement (Ex 10, p138), and, as noted as [198], an Aquatic Impact Assessment Report is an assessment of a kind governed by the Fisheries Management Act 1994, and not the BC Act.
I note the polygon indicating the maximum limit of disturbance is shown to include the area of Racecourse Creek in the location of the proposed new concrete culvert bridge (Exhibit NC-D, p23), and Mr Lindsay has logged the outcomes of the BAM VIS field surveys in this location (Ex NC, -D, Appendix B).
On the basis of the limited civil engineering documentation identified by the experts in respect of the New Crossing Appeal, and the qualified understanding of the scope of the proposed works acknowledged by Mr Lindsay in his oral evidence, I conclude that the assessment undertaken by Mr Lindsay is a function of a limited understanding of the nature of the works proposed.
In particular, I note there is no reference in the BDAR at Exhibit NC-D to particular aspects of the proposal that would suggest Mr Lindsay has undertaken a biodiversity assessment cognisant of the likely environmental impacts of the development proposed in New Crossing Appeal within the area defined by the ‘maximum limit of disturbance’ polygon as it relates to Racecourse Creek.
While there is reference by Mr Lindsay to a widening of the vehicle track in the vicinity of Racecourse Creek, there is no reference to the proposed widening of Racecourse Creek.
Similarly, while there is reference to action to be taken where de-watering of a waterbody is proposed, there is no assessment of the impact, if any, of proposed excavating of the creek bed that Dr Martens advises is in the order of 300mm in depth (see Exhibit NC-B, Drawing E201).
Additionally, I note a typical section detail of the sandstone retaining walls at Drawing PS08-G200 Revision B, produced 29 June 2021, requires further excavation of 600mm below the creek bed surface for sandstone blocks, set on a compacted bed that is a further 150mm deep.

With excavation of 750mm in depth proposed within the creek bed and embankment, in addition to up to 300mm of excavation in the creek bed itself, and associated widening of the creek, it is surprising that the BDAR limits its consideration of the potential impact on threatened species to statements of such generality as that at [237], to the potential impact on the creek and its hydrological processes to a statement of such generality as that at [238], and the potential impact on water quality as evident at [239].
I am left to conclude that Mr Lindsay omitted, or was unaware of, the extent of the intervention proposed, and so was unable to adequately consider the biodiversity impacts of the New Crossing proposal on Racecourse Creek in Section 6 of the BDAR.
In arriving at this conclusion, I note the strategies and actions that may be taken to avoid or minimise impacts on biodiversity values at Section 7.1.1 of the BAM include locating a proposal in an area lacking biodiversity values (subs 3(a)), and where the native vegetation or threatened species habitat is in the poorest condition (subs 3(b)).
I do not understand the term ‘'biodiversity’ to be a restrictive term, such that failure by the BAM to identify a particular plant or animal group or species relieves a proponent from assessing the potential impact of development on a plant or animal group or species.
The facts in this case are that the Respondent particularised aquatic biodiversity as a matter of contention in November 2020 and again in July 2021.
Given the extent and scale of excavation and engineering works proposed in the Racecourse Creek environs, an assessment of aquatic biodiversity identified by the Respondent in November 2020 is warranted.
The fact that no assessment of aquatic biodiversity has been undertaken given the extent and scale of excavation and engineering works is a relevant consideration, especially as Mr Lindsay had identified Racecourse Creek as a key fish habitat with potential threatened species.
I accept Mr Sheather-Reid’s evidence, agreed to at one point by Mr Lindsay, that assessors are granted certain discretion by the BAM in how an assessment is undertaken. I also accept that it is a requirement for a BDAR to assess direct and indirect effects of development on biodiversity and, absent an assessment of aquatic biodiversity, an assessor is unable to make the assessment required of them, other than to conclude there would potentially be impacts that affect aquatic biodiversity, that may include threatened aquatic species.
This is consistent, in my view, with the guidance provided by Section 7.1.1 (2) of the BAM that selecting a final proposal location may be an iterative process that may be informed by, for example, consideration of alternative modes or technologies that would avoid or minimise impacts on biodiversity values (Subs 4(a)).
Consideration of alternative modes or technologies to the culvert bridge solution, such as a single span bridge preferred by Mr Sheather-Reid, for example, is not documented in the BDAR prepared in the support of the New Crossing Appeal, and is not identified by Mr Lindsay at [185]-[187] as an alternative advised to the project team.
Consideration of alternative options at Section 6.1.2 of the BDAR at Exhibit NC-D is limited to a comparison between the existing culvert bridge and a new concrete culvert bridge of near identical design.
However, consideration of alternative bridge designs would appear to present an opportunity to avoid an adverse impacts on those matter sets out at cl 7.3(3) of the WLEP, particularly the natural flow regime (subcl (b)), and the natural flow paths of waterways (subcl c)).
Further, such a solution would appear to conform to the Crossing Guidelines to maintain geomorphic processes by maintaining the natural bed and bank profile, and the natural hydrological regimes by maintaining, and not excavating, the gradient of the creek bed and embankment, and may minimise or eliminate the need for concrete wing walls, and sandstone retaining walls for scour protection given the constriction of the creek could be avoided.
Finally, I note that such a bridge solution would conform to the Crossing Guidelines applicable to bridge crossings that states:

“Ideally, bridges shall be elevated and span the riparian corridor”,

And, further:

“Bridge piers or foundations should not be located within the main channel of the watercourse”

Instead of considering alternatives in what the BAM advises should be part of an iterative process, Mr Lindsay’s oral evidence leads me to conclude that insufficient iteration characterised the design of the proposal and instead Mr Lindsay’s role in an area of sensitive land, and in a watercourse identified by him as a key fish habitat with potential threatened species, was to merely assess what the engineers presented to him, and which he assumed was sufficiently “thorough” for him to assess.
Absent an assessment of biodiversity inclusive of all biodiversity represented in Racecourse Creek, such as aquatic biodiversity, the Court cannot form a view that the BDAR properly assesses the biodiversity values of Racecourse Creek, or that it assesses the impact of the proposed development on the biodiversity values of the land in accordance with s 6.12 of the BC Act.
Furthermore, absent such a proper assessment, the Court cannot be satisfied that the development is designed or sited to avoid or minimise any adverse environmental impact pursuant to s 7.3(3) of the WLEP.
Accordingly, I determine the New Crossing Appeal should be refused.
Therefore, as the Court has determined that the three appeals proposing access from Remembrance Driveway should be refused pursuant to s 4.16 of the EPA Act, it follows that the proposed Equestrian Centre cannot rely upon access from Remembrance Driveway.
The difficulty this imposes on the applications before the Court is that the traffic experts agree that the alternative access from the existing road at Mount View Close is unsuited to horse float traffic which is relied upon by the Equestrian Centre appeal (Exhibit 5, pars 19 and 35 ).

Access from Mount View Road is considered

According to Mr Doan’s written evidence at par 10, “the existing access (via Mount View Close) in its current condition is considered unsuitable for this purpose [horse float traffic]. Furthermore, the Mount View Close access has a number of residential dwellings and the additional traffic generation of the site may cause unnecessary disruption when an existing access is available from an alternative frontage which will avoid any distribution to residential developments.”
At par 26, Mr Doan states “it is unlikely that a horse float will access from Mount View Close however, the access has been designed to accommodate such vehicle when needed (subject to other applications/approvals)”.
As the Court was largely unassisted by submissions on the suitability of Mount View Close for horse float vehicles, I record here that I interpret Mr Doan’s statement at [270] to be that it is the access to Mount View Road from within the site, being development the subject of the E4 Road Appeal, that is designed to accommodate such vehicles, and not Mount View Close itself.
As no works are proposed to Mount View Close, Mr Doan’s statement must be in respect of those works for which consent is granted in the E4 Road Appeal, being works within the site.
Relatedly, Mr Doan notes, at par 57, that trailer or horse float vehicles would use the Remembrance Driveway access and that only light vehicles would use the Mount View Close access.
In closing submissions, the Applicant acknowledges agreement of the experts that Mount View Close is not, in its current state, an appropriate vehicular access to the site due to the increased traffic from the Equestrian Centre and characterises the unsuitability of Mount View Close by reference to cl 101(2)(a) of the State Environmental Planning Policy (Infrastructure) 2007 in respect of development with a frontage to a classified road.

(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that—
(a) where practicable and safe, vehicular access to the land is provided by a road other than the classified road, and
…

In similar terms, Mr Calvey cites Council Design Specification (2016) Clause D12.06 as the source of a prohibition for access “to a major road if reasonable access can be gained from another road. Mount View Close provides access to the site. However, Mount View Close, in its current form, is unsuitable for increased traffic movements associated with the Equestrian Centre.”
Relevantly, the E4 Road Appeal does not propose works to Mount View Close, but is limited to the upgrade of the road within the site that connects Mount View Close with, firstly, the RU2 Road that services the Equestrian Centre and secondarily, to an unsealed driveway providing access to the existing dwelling on the property.
The nature or extent of works required to Mount View Close that would render it suitable to traffic such as horse float vehicles, if that is possible, is not before the Court.
Put another way, the traffic experts agree that Mount View Close is not suited to vehicular traffic such as horse floats, and the Applicant does not propose works to upgrade the Mount View Close.
As shown by Preston CJ in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 (Palm Lake), at [5], the Court is required by s 4.15(1)(b) of the EPA Act to take into consideration “the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality.”
The phrase “the likely impacts of that development” embraces off-site impacts that can result from “not only by the proposed development impacting adjoining or other land in an area of influence but also by some other development provided that the impacts of that other development have “a real and sufficient link” with the proposed development, such as where the impacts are caused by “some further undertaking that is ‘inextricably involved’ with the proposed development”: Bell v Minister for Urban Affairs and Planning (1997) 95 LGERA 86 at 101 and Environmental Defence Society Inc v South Pacific Aluminium (No 4) [1981] 1 NZLR 530 at 534-535.” (Palm Lake at [6]).
The Traffic Assessment Report prepared by Mr Doan dated 2 June 2021 (Exhibit EQ-L) states that parking spaces for 20 horse floats are provided, as does the Operational Plan of Management (Exhibit EQ-K, p7). Drawing 2103-N-PL001, prepared by C4 Architects indicates 20 spaces sized to accommodate car and trailer vehicles.
Further, the likely traffic-related operations of the Equestrian Centre are premised on the following operational assumptions (Appendix B of Exhibit 5):

“Group Riding Lessons (horse riding or dressage)
Expected to be 3 days a week (Wednesdays, Saturdays, and Sundays) 2 hours each lesson
Up to 20 students will be travelling to the facility (hence 20 car parks provided)
Some students might bring their own horses to take lessons (hence horse float parking is provided).
…
Events
It is anticipated there will be up to 4 events a year allowing up to 20 visitors to bring their horses to the facility for a group training.”

Vehicular access for horse floats would appear inseparable from the operation of an equestrian facility that assumes the movement of horses in and out of the site on occasion.
On the basis of the above, I conclude that provision of access for horse floats on Mount View Close has a real and sufficient link to the development the subject of the Equestrian Centre development application, in respect of which works to Mount View Close is an undertaking that is ‘inextricably involved’ with the operation of an Equestrian Centre.
Here, as in Palm Lake, works are required to provide practicable, safe and efficient traffic movement to and from the proposed development. However, just as the nature and extent of works are unknown, so too are the impacts of those works, if any, on Mount View Close, its environs and residents.
As the Court has determined that access from Remembrance Driveway is not possible to the Equestrian Centre, and the parties acknowledge the expert traffic evidence that Mount View Close in its current condition is unsuited to traffic on which the Equestrian Centre depends for use, and the works and the impacts arising from those works, are unknown, it follows that the Equestrian Centre Appeal must fail. Simply, there is no means of access to the Equestrian Centre.
What flows from this is fatal also to the RU2 Road and E4 Road Appeals and, in part, the BIC Appeal.

The site is contaminated

As stated at [136]-[139], asbestos has been identified in two areas of the site.
In the area of the RU2 Road and E4 Road Appeals, the Site Audit Report (Exhibit 4, Vol 2, Tab C) states that:

Cement fibre sheeting fragments (PACM) were observed at the surface at several locations (p 37);

A positive identification of asbestos was made in all surface PACM samples sent for laboratory analysis (p 37);

Bonded ACM at the site surface was observed across a large portion of the Equestrian Centre and northern portion of the RU2 and E4 Road investigation areas. (p 44);

Elevated hydrocarbon detections were detected in imported fill material containing anthropogenic inclusions such as builder’s rubble, concluding that fill is likely sourced from redevelopment sites where past site activities, such as car parking, and earthworks processes, such as operating earthworks equipment, have resulted in minor hydrocarbon impacts.

Furthermore, brick and tile fragments, metal, plastic and PACM were observed within the fill in the area of the RU2 Road and E4 Road Appeals, and the Equestrian Centre Appeal (p 41) at depths of up to 3m below surface.
Additionally, the Site Audit Report identifies exceedance of human health and ecological criteria for heavy metals in the vicinity of the Equestrian Centre and associated infrastructure as follows:

Six incidents of Benzo(a)pyrene exceeding ecological screening levels (p 41).

An exceedance of the “TRH C10-C16 less napthalene fraction” (p 43).

An exceedance of groundwater exceeding criteria for zinc, that was later retested within the criteria.

Elevated concentrations of barium (p 43) that exceeds National Environmental Protection Measures drinking water guidelines, the source(s) of which have not been confirmed (p 45).

These results cast doubt on the efficacy of the run sheets and waste classification contained in Attachment C of the Martens Letter of 26 February, or on the completeness of those records as to the origin and nature of fill imported on the site.
This reality is consistent with the written evidence of Mr Norris who explains, at p 7 of the Exhibit 4, his understanding that additional waste was brought on to the site after the preparation of the run sheets and waste classification referred to above.
While the Court closes its’ eyes to assertions of past unlawfulness in matters such as this for the reasons set out at [91], the Court is confronted with the reality of asbestos material, and other contaminants, being within fill apparently classified as VENM.
The Applicant’s Remedial Action Plan relies upon the works associated with the Equestrian Centre to cap the asbestos containing material that is proposed to be excavated from locations identified in the RU2 Road and E4 Road Appeals.
However, absent consent for development the subject of the Equestrian Centre Appeal, there is no location in which approximately 1,200m³ of material proposed to be excavated from the RU2 Road and E4 Road appeals can be buried or capped.
Absent such a remediation strategy for the asbestos containing material identified in the RU2 Road and E4 Road Appeals, I cannot be satisfied that the land, which is contaminated, will be made suitable for the purpose for which development is proposed to be carried out in accordance with cl 7 of SEPP 55.
In arriving at this conclusion, I am unable to reconcile the certification of the imported fill as VENM, with the results of testing at [289]-[291]. On the basis of the sampling undertaken in the Detailed Site Investigation, summarised in the Site Audit Report, I conclude the quality of the fill imported on to the site is not wholly VENM as put by the Applicant.

While the Site Audit Report concludes that adequate sampling has been undertaken, it also recommends contingency plans be put in place for unexpected finds, and qualifies its conclusion that the site can be made suitable on the proviso that the RAP is followed.
As the RAP relies upon the Equestrian Centre to cap asbestos material, the RAP cannot be implemented and so the conclusion of the Site Audit Report is also compromised.
Accordingly, after considering the contaminated quality of the fill, and the uncertain destination of excavated material that is without an identified method of remediation, I find the E4 Road and RU2 Road Appeals to warrant refusal pursuant to cl 7.5 of the WLEP.
As the development the subject of development applications in the E4 Road, RU2 Road, New Crossing and Crossing Upgrade appeals are found to warrant refusal, the development the subject of the Internal Roads Appeal is without means of access and so must also be refused.
Structures for which consent is sought in the Internal Roads Appeal, set out at [4], are also the subject of the BIC Appeal.

The BIC Appeal is refused

The powers of the Court on appeal in respect of a building information certificate at s 6.25 of the Act, are relevantly as follows:

(1) A building information certificate is to be issued by a council only if it appears that—
(a)  there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993—
(i)  to order the building to be repaired, demolished, altered, added to or rebuilt, or
(ii)  to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or
(iii)  to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or

(b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings.
…

In Ireland v Cessnock City Council (1999) 110 LGERA 311; [1999] NSWLEC 250 at [37] Bignold J set out the relevant issues when considering an application for a building information certificate as being first, the structural adequacy of the building, and secondly, the probability of development consent being granted had such approval been sought.
The second consideration was further described in Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276, at [58], in the manner of a notional development application, which is an appropriate exercise for the Court to undertake in the exercise of the statutory discretion conferred upon it.
As stated at [218], the existing concrete culvert bridge requires structural rectification, the scope and impact of which is uncertain, in order for it to achieve structural adequacy. Absent an understanding of the scope and impact of such remediation, I determine that aspect or element of the BIC Appeal should fail.
Next the Applicant submits the wheel wash bay is associated with unsealed roads forming a loop road around the riding arena and horse yards of the Equestrian Centre, in the vicinity of the OSD/bioretention basin identified on Drawing PS22-D102 (Exhibit EQ-C).
An excerpt of the relevant drawing is re-produced below. For assistance, the approximate location of the wheel wash bay is identified by the dark star.

The Applicant identifies a nexus between the unsealed roads in the Equestrian Centre Appeal and the wheel wash bay. As such it follows that, absent an approval for the Equestrian Centre, the utility provided by the wheel wash bay is uncertain.
That said, Mr Lovell’s written evidence is that, so long as the wheel wash bay does not impose any adverse impacts, it should be regarded as acceptable.
The civil engineering experts agree that current runoff from the wheel wash bay is likely to have environmental impacts, described as minor, that can be improved by the installation of a “small baffled sedimentation tank (or similar proprietary device) to remove oil and hydrocarbons prior to release to the downslope water quality basin”. (Exhibit BIC 2, p 5)
Such a tank “should be routinely inspected and maintained so as to ensure that accumulated material is removed as needed”. (Exhibit BIC 2, p 5)
The Court was unassisted by evidence on the volume and quality of runoff from the wheel wash bay, described by the experts as having an environmental impact, or the specifications of a sedimentation tank, such as its size, capacity, access and maintenance requirements, location and the like.
I note the wheel wash bay appears to be either in close proximity to, or wholly within, the area identified as CPW EEC and so consideration of impacts on biodiversity values is a relevant consideration of development proposed in the area, such as those likely to rise from the installation of a sedimentation tank.
Absent specifications of the sedimentation tank, I accept Mr Sheather-Reid’s written evidence that the Applicant has not demonstrated the proposed measures will be sufficient to prevent oils and hydrocarbons polluting Racecourse Creek.
Accordingly, the Court declines to direct the Respondent to issue a Building Information Certificate in respect of the wheel wash bay.
According to the structural engineering joint report (Exhibit BIC-8), the toilet structure is capable of having appropriate bracing installed to achieve structural adequacy, and a design statement prepared by Dr Martens (Septic Design Statement) (Exhibit BIC-2, Annexure C) sets out the system design requirements and specifications of the septic tank and ancillary plumbing as installed.
The septic design statement concludes the septic tank is a compliant system, has been installed by a licenced plumber, is associated with an absorption trench sized, designed and installed in accordance with the relevant Australian Standard, and in a location that is outside of recommended environmental buffers.
Unassisted by detailed submissions on the matter, I understand those ‘environmental buffers’ to be reference to the proximity to ‘Sensitive Land’ as defined at [41]. The distances from the toilet structure, septic tank and absorption trench are marked on Figure 1 Annexure C (Exhibit BIC 2) of the Septic design statement, and exceed 40m from Racecourse Creek. Figure 1 is re-produced, in excerpt below:

The septic design statement, at Figure 2 of Annexure C (Exhibit BIC 2), re-produced below, shows the septic tank and ancillary plumbing during construction.

The works depicted in Figure 2 do not appear to me to be within the area identified in the polygon at [183] described as the maximum limit of disturbance, which is consistent with Mr Lindsay’s written evidence in the joint expert report (Exhibit BIC 4) that he has not assessed the impacts, if any, of the works on biodiversity values.
However, the works depicted in Figure 2 appear to be in close proximity to, if not entirely within, the CPW EEC and in an area identified by Mr Lindsay at Figure 7 of the BDAR (Exhibit IR-D), re-produced in excerpt below, as a ‘Significant Biodiversity Link’ on the site. The approximate location of the toilet structure, septic and absorption trench is marked with white star.

Likewise, the location of the absorption trench as shown in Figure 4 of Annexure C (Exhibit BIC 2), re-produced below, appears to be within the area identified as CPW EEC, and in the proximity of the root zone of certain trees within the area identified as CPW EEC.

As the development, and indeed the evidence of works to construct the development, appears to be within the area of the CPW EEC, s 7.7(2) of the BC Act requires a BDAR to accompany an application if the application is likely to significantly affect threatened species.
No such BDAR has been prepared, and Mr Lindsay’s written evidence expressly excludes an assessment of the impacts of the septic tank and absorption trench from the assessment of impact on biodiversity values undertaken by him in the reports at [152].
Absent an assessment of the impacts, if any, of the development on the biodiversity values of the CPW EEC, the Court is unable to consider the biodiversity values of the land subject to the proposed development, activity or clearing, the impact of proposed development, activity or clearing on the biodiversity values of that land, what measures, if any, the proponent of the proposed development, activity or clearing proposes to take, or took, to avoid or minimise the impact of the proposed development, activity or clearing, and the number and class of biodiversity credits, if any, that are required to be retired to offset the residual impacts on biodiversity values of the actions to which the biodiversity offsets scheme applies, being aspects to be addressed in a BDAR, in accordance with s 6.12 of the BC Act.
Additionally, the Court is also without evidence as to the steps taken to locate the proposal to avoid or minimise direct and indirect impacts on native vegetation, threatened species, threatened ecological communities and their habitat in accordance with clause 7.1.1 of the BAM.
Accordingly, I am unable to conclude that the earthworks required for the installation of the septic tank and absorption trench will not have a detrimental impact on environmental functions and processes, because of the proximity of the earthworks to, and potential for adverse impacts on an environmentally sensitive area, which is a consideration I must undertake in accordance with cl 7.5 (3)(g) of the WLEP.
For these reasons, I do not consider there to be grounds on which the Court should exercise its discretion to direct Council to issue a Building Information Certificate for the toilet structure, the septic or absorption trench.
Finally, the BIC Appeal seeks the Court to direct the Respondent to issue a Building Information Certificate in respect of a water tank shown on Drawing PS15-A100 Rev A (Exhibit BIC A), that the Respondent contends is erected on unstable ground.
The structural engineering experts agree that no objection can be taken to the letter prepared by the accredited water tank installer appended to Exhibit BIC 8, stating that the installation of the water tank was in accordance with the manufacturers engineering specifications.
The engineering experts agree, at pp 5-6, that overflow from the water tank can be collected and directed to the nearby driveway drainage system. I understand this reference to be to the driveway drainage proposed in the Internal Roads Appeal, refused at [302].
An assessment of the stability of the embankment supporting the water tank is included at Annexure B of Exhibit BIC 2. The assessment is supported by geotechnical investigations, and a slope and foundation assessment.
Engineering Logs supporting the geotechnical investigations document the drilling depth and material description at five locations in the immediate vicinity of the water tank. The logs show between 300mm and 900mm of fill forming the embankment.
The recommendations, to which no objection is taken in the joint expert report, are summarised as follows:

A perimeter aggregate drain to be installed at the top of the embankment,

Erosion damage in the embankment surface to be remediated by replacing and compacting soil,

The embankment should be hydromulched to establish vegetation as quickly as possible.

I am unable to locate evidence of environmental testing in the vicinity of the water tank, either in Exhibit BIC 2 or in the Mapset at Attachment A of the Detailed Site Investigation (Exhibit Master 4).
On the basis of my conclusion at [298], and the consideration I must give in accordance with cl 7 of SEPP 55 as to whether the land is contaminated, I do not have sufficient information to be satisfied that the land is suitable in its contaminated state (or will be suitable, after remediation) for the purpose for which the development is proposed to be carried out.
For this reason, I do not consider there to be grounds on which the Court should exercise its discretion to direct Council to issue a Building Information Certificate for the water tank.

Conclusion

After considering the appeals set out at [3]-[4], I find that all applications for development consent warrant refusal, as do all of the elements contained in the BIC Appeal.

Orders

In respect of the Equestrian Centre appeal (Proceedings No. 2020/276311):

The Court orders that:

The appeal is dismissed.

Development application DA 2020/376/1 for the establishment of an equestrian centre with associated sheds, horse stables, horse walkers, internal driveways, earthworks, drainage works and landscaping is refused.

All exhibits are returned except for Exhibit EQ-A, EQ-B, EQ-C, EQ-D and EQ-E.

In respect of the Crossing Upgrade Appeal (Proceedings No. 2020/326094):

The Court orders that:

The appeal is dismissed.

Development application DA 2020/536/1 (Proceedings No. 2020/326094) for upgrade of a creek crossing constructed by the Applicant, sealing of driveway and installation of drain pipe is refused.

All exhibits are returned except for Exhibit CU-A, CU-B, CU-D.

In respect of the RU2 Road (Proceedings No. 2020/335248):

The Court orders that:

The appeal is dismissed.

Development application DA 2020/583/1 for the upgrade of an existing onsite driveway with associated earthworks, construction of retaining walls, rock revetment, stormwater drainage and tree removal is refused.

All exhibits are returned except for Exhibit RU2-A.

In respect of the E4 Roads Appeal (Proceedings No. 2020/315373):

The Court orders that:

The appeal is dismissed.

Development application DA 2020/505/1 for the upgrade of an existing driveway with associated earthworks, road drainage, retaining walls, and tree removal is refused.

All exhibits are returned except for Exhibit E4-A.

In respect of the New Crossing Appeal (Proceedings No. 2020/270199):

The Court orders that:

The appeal is dismissed.

Development application DA 2020/238/1 for the construction of an internal driveway and creek crossing, associated earthworks and tree removal is refused.

All exhibits are returned except for Exhibit NC-A.

In respect of the Internal Roads Appeal (Proceedings No. 2020/181331):

The Court orders that:

The appeal is dismissed.

Development application DA 2020/40/1 for modification and construction of internal driveways, dam alterations, construction of a wheel wash bay, tree removal, stormwater drainage by construction of a swale, inclusion of retaining walls and rock revetment and associated earthworks is refused.

All exhibits are returned except for Exhibit IR-A, IR-B, IR-C, IR-D.

In respect of the BIC Appeal (Proceedings No. 2021/83520):

The Court orders that:

The appeal is dismissed.

Building Information Certificate BIC/2020/69/1 comprising an existing concrete culvert bridge spanning Racecourse Creek, a wheel wash bay, a toilet enclosure and a water tank is refused.

All exhibits are returned except for Exhibit BIC-A.

…………………..

T Horton

Commissioner of the Court

**********

Decision last updated: 02 December 2021

Medium Neutral Citation:	Muscat Developments Pty Ltd v Wollondilly Shire Council [2021] NSWLEC 1738
Hearing dates:	2-6 August 2021
Date of orders:	2 December 2021
Decision date:	02 December 2021
Jurisdiction:	Class 1
Before:	Horton C
Decision:	See orders at [341]-[347]
Catchwords:	DEVELOPMENT APPLICATION – biodiversity development assessment – Guidelines for controlled activities on waterfront land – riparian zone – sensitive land – biodiversity offsets scheme – likely impact of the proposed development on biodiversity values – remediation of land – asbestos containing material – likely off site impacts of development – building information certificate
Legislation Cited:	Biodiversity Conservation Act 2016, ss 6.5, 6.12, 7.7, 7.13, 7.16 Biodiversity Conservation Regulation 2017, cll 6.7, 7.1 Environmental Planning and Assessment Act 1979, ss 4.15, 4.16, 6.25, 8.7, 8.25, 9.34 Fisheries Management Act 1994 Protection of the Environment Operations (Waste) Regulation 2014 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy (Koala Habitat Protection) 2020 State Environmental Planning Policy No 55 – Remediation of Land, cl 7 Water Management Act 2000 Wollondilly Shire Council Local Environmental Plan 2011, cll 7.3, 7.5
Cases Cited:	Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 Chami v Lane Cove Council [2015] NSWLEC 1003 Ireland v Cessnock City Council (1999) 110 LGERA 311; [1999] NSWLEC 250 Jonah v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 Kouflidis v Salisbury City Corp (1982) 29 SASR 321; (1982) 49 LGRA 17 Nalor Pty Ltd v Bankstown City Council [1980] 2 NSWLR 630 Ralph Lauren Pty Ltd v New South Wales Transitional Coastal Panel; Stewartville Pty Ltd v New South Wales Transitional Coastal Panel; Robert Watson v New South Wales Transitional Coastal Panel [2018] NSWLEC 207 Sofi v Wollondilly Shire Council [1975] 2 NSWLR 614 Taipan Holdings Pty Ltd v Sutherland Shire Council [1999] NSWLEC 276
Texts Cited:	AS 1597.2-2013, Precast reinforced concrete box culverts, Part 2: Large culverts (exceeding 1200 mm span or 1200 mm height and up to and including 4200 mm span and 4200 mm height) AS5100.1:2017 ‘Bridge design, Part 1: Scope and general principles’ NSW Department of Planning, Industry and Environment, Biodiversity Assessment Method, (2020) NSW Department of Primary Industries, Office of Water, Guidelines for Vegetation Management Plans on waterfront land, (July 2012) NSW Department of Primary Industries, Office of Water, Guidelines for watercourse crossings on NSW Environment Protection Authority, Recovered Glass Sand Exemption 2014, (November 2014) NSW Environmental Protection Authority, Guidelines for the NSW Site Auditor Scheme, (October 2017) NSW Natural Resources Access Regulator, Guidelines for controlled activities on waterfront land, Riparian Corridors, (May 2018) Wollondilly Shire Council Development Control Plan 2016
Category:	Principal judgment
Parties:	Muscat Developments Pty Ltd (Applicant) Wollondilly Shire Council (Respondent)
Representation:	Counsel: D Miller SC with J Smith (Applicant) M Astill with M Harker (Respondent) Solicitors: Storey & Gough Lawyers (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2020/00181331; 2020/00270199; 2020/00276311; 2020/00315373; 2020/00326094; 2020/00335248; 2021/00083520
Publication restriction:	No