Pavsic v Transport for NSW

[2024] NSWLEC 1344

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pavsic v Transport for NSW [2024] NSWLEC 1344

Hearing dates:

Conciliation conference on 7 February 2024, 26 April 2024, 17 May 2024, and 27 May 2024

Date of orders:

21 June 2024

Decision date:

21 June 2024

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

See orders at [10].

Catchwords:

DIRECTION BY RESPONDENT – removal of four dams – conciliation conference – agreement between the parties – orders

Legislation Cited:

Land and Environment Court Act 1979, ss 18, 34

Roads Act 1993, ss 104, 105

Category:

Principal judgment

Parties:

Lorraine Pavsic (Applicant)
Transport for NSW (Respondent)

Representation:

Counsel:
T Valentinetti (Solicitor) (Applicant)
D Webster (Solicitor) (Respondent)

Solicitors:
PDC Law (Applicant)
Bick & Steele (Respondent)

File Number(s):

2023/216232

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal against a direction dated 23 June 2023 (Direction) given by Transport for New South Wales (TfNSW) to the Applicant pursuant to s 104(1) of the Roads Act 1993 (Roads Act) in relation to the four dams (Dams) located on property owned by the Applicant at 81 Parrish Avenue, Mt Pleasant (Property) requiring the Applicant to:

“remove the Dams and restore the base of the Dams to natural surface level (Works)”

by 5pm on 4^th August 2023.

1. The proceedings fall within Class 2 of the Court’s jurisdiction pursuant to s 18(a1) of the Land and Environment Court Act 1979 (LEC Act).

2. The statutory power or function to be exercised in determining the proceedings falls under s 105(4) of the Roads Act and s 34(3) of the LEC Act.

2. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 7 February 2024, 26 April 2024, 17 May 2024, and 27 May 2024. I presided over the conciliation conference.

3. At or after the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved upholding the appeal, and amending the Direction, the subject of the appeal.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 34(3) of the LEC Act and s 105(4) of the Roads Act.

Roads Act 1993

104   TfNSW may direct removal etc of traffic hazards

(1)  TfNSW may direct—

(a)  the owner or occupier of land on which any work or structure is situated, or

(b)  the person by whom any work or structure was carried out or erected,

to screen, modify or remove the work or structure if, in the opinion of TfNSW, the work or structure is a traffic hazard.

(2)  A direction under this section may specify—

(a)  the manner in which or the standard to which, and

(b)  the period within which,

the direction must be complied with.

(3)  Such a direction may be given—

(a)  on the initiative of TfNSW or at the request of another public authority, and

(b)  regardless of when the work or structure was erected, and

(c)  regardless of whether or not the carrying out or erection of the work or structure is the subject of any approval, consent, licence or permit in force under this or any other Act.

(4)  For the purposes of this section—

(a)  TfNSW may form an opinion on the basis of information received, and

(b)  a written statement under the seal of TfNSW to the effect that a specified structure or thing is, in the opinion of TfNSW, a traffic hazard is conclusive evidence of that opinion.

s 104: Am 2011 No 41, Sch 5.50 [1].

105   Appeal against direction to Land and Environment Court

(1)  A person on whom a direction under this Division has been served (not being a public authority) may appeal against the direction to the Land and Environment Court.

(2)  An appeal must be made, in accordance with rules of court, within 14 days after the direction was served on the person.

(3)  The making of an appeal operates to suspend the direction to which it relates until the appeal is finally determined or is withdrawn.

(4)  The Land and Environment Court may do any one or more of the following—

(a)  it may confirm or quash the direction,

(b)  it may vary the period within which the direction must be complied with,

(c)  it may vary any of the requirements of the direction.

(5)  The decision of the Land and Environment Court on an appeal is final.

5. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings as set out below, and explained how the jurisdictional prerequisites have been satisfied:

1. The proceedings constitute an appeal under subs 105(1) of the Road Act against the issue of the Direction.

2. The appeal was commenced within the 14 day period from the date of the Direction as prescribed by subs 105(2) of the Roads Act.

3. The appeal had the effect of suspending the direction, to which it related, until finally determined or withdrawn pursuant to s 105(3) of the Roads Act.

4. The Court’s jurisdiction with respect to the appeal is set out in s 105(4) of the Roads Act, and in this case s 105(4)(a) and (b) applies to vary the period within which the Direction must be complied with,and vary the requirements of the Direction.

6. The parties agreed to amend the Direction as follows:

1. Direction to owner of land on which work is situated

This Direction is given to –

MS LORRAINE PAVSIC (You)

because You are the owner of land described as Lot 1 in DP156493 and Lot 1 in DP995833, also known as 81 Parrish Avenue, Mt Pleasant (Land). There are four dams on the Land (Dams). The Dams are depicted at Annexure A to these orders and marked as Dams 1, 2, 3 and 4.

2. What you need to do

(a) redirect water from Dam 4, being the easternmost dam located on the Land by sealing the existing outlet structure and constructing a new outlet structure and spillway that directs water away from the ‘active landslide area’, as shown on the plan at Annexure A, by 5 July 2024.

(b) dewater by gravity drainage each of Dams 1, 2, and 3 (Upstream Dams) as shown on the plan at Annexure A by 19 August 2024.

(c) install surface and sub-surface cutoff drains directing water from upslope of the Upstream Dams, to Dam 4, so as to keep the Upstream Dams permanently dewatered, as shown on the plan at Annexure A by 19 August 2024 (Drainage Works).

(d) obtain, from a suitably qualified engineer/s or other relevant expert/s, a report, scope of works and design drawings for works to remove the Upstream Dams, restore their level to natural surface level, make permanent the Drainage Works, and stabilise the area downslope from the Upstream Dams as much as is required to prevent future landslides that are a risk to Mount Ousley Road, by 25 November 2024.

(e) provide the report, scope of works and design drawings prepared pursuant to Order (2) Direction 2(d) to a suitably qualified independent civil and geotechnical engineer(s) for review, auditing and certification by 20 December 2024.

(f) refer Dam 4 to Dams Safety NSW to consider whether Dam 4 should be declared by 20 December 2024;

(g) following a final response from Dams Safety NSW and by no later than 20 December 2025:

(i) update the scope of works audited and certified under Order 2 Direction 2(e) above to include any amendments required or recommended by Dams Safety NSW (Final Scope of Works);

(ii) obtain any approvals required to implement the Final Scope of Works;

(iii) provide the documents outlining the Final Scope of Works to Transport for NSW; and

(iv) complete the works the subject of the Final Scope of Works.

3. When you need to do it

You need to complete the works set out above under heading number 2 by the dates specified therein. This page, and the previous 5 pages, are a true copy of my reasons for judgment.”

7. As set out above, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

8. The Court notes that the Respondent:

1. Agrees to pay for 50% of the cost of obtaining the review, audit and certification in par 2(e) of the Direction in Order (2) below; and

2. Will use its best endeavours to assist the Applicant in obtaining any approvals required to comply with these orders.

9. The Court further notes that each party has agreed to pay their own costs of these proceedings.

10. The Court orders:

1. The appeal is upheld.

2. Pursuant to subss 105(4)(b) and (c) of the Roads Act 1993 the requirements in the Direction to Remove a Traffic Hazard issued by Transport for NSW under subs 104(1) of the Roads Act 1993 to the Applicant dated 23 June 2023 and the period within which the Direction must be complied with, be varied as follows:

“1. Direction to owner of land on which work is situated

This Direction is given to –

MS LORRAINE PAVSIC (You)

because You are the owner of land described as Lot 1 in DP156493 and Lot 1 in DP995833, also known as 81 Parrish Avenue, Mt Pleasant (Land). There are four dams on the Land (Dams). The Dams are depicted at Annexure A to these orders and marked as Dams 1, 2, 3 and 4.

2. What you need to do

(a) redirect water from Dam 4, being the easternmost dam located on the Land by sealing the existing outlet structure and constructing a new outlet structure and spillway that directs water away from the ‘active landslide area’, as shown on the plan at Annexure A, by 5 July 2024.

(b) dewater by gravity drainage each of Dams 1, 2, and 3 (Upstream Dams) as shown on the plan at Annexure A by 19 August 2024.

(c) install surface and sub-surface cutoff drains directing water from upslope of the Upstream Dams, to Dam 4, so as to keep the Upstream Dams permanently dewatered, as shown on the plan at Annexure A by 19 August 2024 (Drainage Works).

(d) obtain, from a suitably qualified engineer/s or other relevant expert/s, a report, scope of works and design drawings for works to remove the Upstream Dams, restore their level to natural surface level, make permanent the Drainage Works, and stabilise the area downslope from the Upstream Dams as much as is required to prevent future landslides that are a risk to Mount Ousley Road, by 25 November 2024.

(e) provide the report, scope of works and design drawings prepared pursuant to Order (2) Direction 2(d) to a suitably qualified independent civil and geotechnical engineer(s) for review, auditing and certification by 20 December 2024.

(f) refer Dam 4 to Dams Safety NSW to consider whether Dam 4 should be declared by 20 December 2024;

(g) following a final response from Dams Safety NSW and by no later than 20 December 2025:

(i) update the scope of works audited and certified under Order 2 Direction 2(e) above to include any amendments required or recommended by Dams Safety NSW (Final Scope of Works);

(ii) obtain any approvals required to implement the Final Scope of Works;

(iii) provide the documents outlining the Final Scope of Works to Transport for NSW; and

(iv) complete the works the subject of the Final Scope of Works.

3. When you need to do it

You need to complete the works set out above under heading number 2 by the dates specified therein. This page, and the previous 5 pages, are a true copy of my reasons for judgment.”

M Peatman

Acting Commissioner of the Court

216232.23 Annexure A

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Decision last updated: 21 June 2024