Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 4)

[2019] NSWLEC 58

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 4) [2019] NSWLEC 58
Hearing dates:	26, 27, 28, 29, 30 November and 3, 4, 5, 6, 7 December 2018
Date of orders:	18 April 2019
Decision date:	18 April 2019
Jurisdiction:	Class 5
Before:	Pepper J
Decision:	The defendant is guilty as charged in all three summonses. See orders at [320].
Catchwords:	ENVIRONMENTAL OFFENCES: defendant charged with the unlawful carrying out of bulk earthworks contrary to the conditions of a project approval – proper construction of the conditions of the project approval – whether works carried out pursuant to the Project Approval ­or some other pre-existing consent – whether earlier development consents permitting bulk earthworks obviated compliance with the conditions of the Project Approval.
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 75A, 75B, 75D, 75J, 750, 75P, 75ZA, 125, 125A, 125C
Cases Cited:	1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 Auburn Municipal Council v Szabo (1971) 67 LGRA 427 Barca v R (1975) 133 CLR 82 Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521 Chief Environmental Regulator of the Environment Protection Authority v The Forestry Corporation of New South Wales [2018] NSWLEC 10 Director General, Department of Land and Water Conservation v Bailey [2003] NSWCCA 361; (2003) 136 LGERA 242 Doney v R [1990] HCA 51; (1990) 171 CLR 207 Drummoyne Municipal Council v Lebnan [1974] HCA 34; (1974) 131 CLR 350 Drummoyne Municipal Council v Page [1973] 2 NSWLR 566 Gibb v Federal Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628 Grace Bros Pty Ltd v Willoughby Municipal Council (1980) 44 LGRA 400 Heatscape v Mahoney [2017] NSWCCA 135; (2017) 223 LGERA 66 Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2002] NSWCA 301; (2002) 55 NSWLR 446 House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 IDA Safe Constructions Pty Ltd v Woollahra Municipal Council (1981) 48 LGRA 62 Katoomba Gospel Trust v Blue Mountains City Council [1994] NSWLEC 107 Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 King v Bathurst Regional Council [2006] NSWLEC 505; (2006) 150 LGERA 362 Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114; (2013) 298 ALR 532 Lismore City Council v Ihalainen (No 2) [2014] NSWLEC 198 Liverpool City Council v Home Units Australia Pty Ltd [1973] 2 NSWLR 61 Moss v Kiama Municipal Council [2003] NSWLEC 165; (2003) 127 LGERA 83 Oshlack v Irongates Pty Ltd (1997) 130 LGERA 189 Parramatta City Council v Shell Co of Australia [1972] 2 NSWLR 632 Peacock v R [1911] HCA 66; (1911) 13 CLR 619 Pittwater Council v Minister for Planning (2011) 184 LGERA 419 Rao v Canterbury City Council [2000] NSWCCA 471; (2000) 112 LGERA 360 Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277; (1970) 19 LGRA 321 SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 367 ALR 206 Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd [2018] NSWLEC 114 Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 2) [2018] NSWLEC 195 Shepherd v R [1990] HCA 57; (1990) 170 CLR 573 Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4 Tempe Recreation (D.500215 and D.1000502) Reserve Trust v Sydney Water Corporation [2014] NSWCA 437 The Owners - Strata Plan No 4983 v Canny [2018] NSWCA 275 Tovir Investments v Waverley Council [2014] NSWCA 379 Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396 Ulan Coal Mines Ltd v Minister for Planning (2008) 160 LGERA 20 Viertel v Andrews [2008] NSWLEC 195 Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156 Waverley Council v CM Hairis Architects [2002] NSWLEC 180; (2002) 123 LGERA 100 Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 Wingecarribee Council v CSR Limited (unreported, Land and Environment Court of NSW, no 40100 of 1993) Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508
Texts Cited:
Category:	Principal judgment
Parties:	Secretary, Department of Planning and Environment (Prosecutor) Leda Manorstead Pty Ltd (Defendant)
Representation:	Counsel: T Howard SC and J Walker (Prosecutor) A Galasso SC and B Anniwell (Defendant)   Solicitors: Department of Planning and Environment (Prosecutor)  Mills Oakley (Defendant)
File Number(s):	2017/186631, 2017/186632, 2017/186634
Publication restriction:	N/A

table of contents

Leda Develops the Cobaki Estate

Site Overview

The Concept Approval

The Project Approval

Modification of the Project Approval

Historical and Current Development Consents Relating to Cobaki Estate

The Three Charges

The Elements of the Offences

2017 Mills Oakley Letter Admitting Breach of Condition 21A b.

Whether the Project Approval Affected the Operation of Pre-Existing Consents

Principles of Construction Applicable to a Pt 3A Approval

Issues for Determination Arising From the Proper Construction of Condition 21A b.

The Meaning of “the Site” in Condition 21A b. of the Project Approval

The Meaning of “Bulk Earthworks”

Meaning of the Expression “Maximum Exposed Disturbed Area (That Has Not Been Permanently Vegetated)”

Leda Has Contravened Condition 21A b.

Inspections by Mr McLachlan

The Evidence of Mr Watts

The Evidence of Mr Shaw

The Evidence of Dr Martens is Not Accepted

CC 02/1368

CC 107 Series

DA 10/0800

CC 10/0717

The Bulk Earthworks Carried Out on the Site Were Carried Out Under the Project Approval

Leda Exceeded the 5.59 ha Limit and is Guilty as Charged in the First and Second Summons

Condition 41 of the Project Approval

The Meaning of “Bulk Earthworks” for the Purpose of Condition 41

Leda Has Breached Condition 41 of the Project Approval

Conclusion and Orders

JUDGMENT

Leda Develops the Cobaki Estate

1. The defendant, Leda Manorstead Pty Ltd (“Leda”), is the developer of the Cobaki Estate, a major residential development on land located in the Tweed Shire in the north east corner of New South Wales, close to the Queensland border.

2. The land the subject of the three charges is wholly owned by Leda.

Site Overview

3. The Cobaki Estate Project is located off Piggabean Road, Cobaki Lakes, in the Tweed Shire Council (“the Council”) local government area. The location is bounded by the Queensland and New South Wales border to the north, Piggabean Road to the south, and Cobaki Creek and Cobaki Broadwater to the east.

The Concept Approval

4. On 6 December 2010 a concept approval (“the Concept Approval”) was granted under s 75O in Pt 3A of the Environmental Planning and Assessment Act 1979 (then in force) (“EPAA”) by then Minister for Planning (“the Minister”), for the Cobaki Estate project (“the project”):

I, the Minister for Planning, pursuant to Part 3A of the Environmental Planning & Assessment Act 1979 (Act), determine:

a. Under section 75O of the Act, to approve the concept plan referred to in Schedule 1 subject to the modifications in Schedule 2 and the proponent’s Statement of Commitments in Schedule 3;

b. Under section 75P(1)(a) of the Act, that further environmental assessment be subject to the requirements set out in Schedule 2; and

c. Under section 75P(1)(b) of the Act, that approval to carry out the project, other than the central open space and Precinct 5, be subject to Part 4 or 5 of the Act, as relevant.

The modification and further assessment requirements are required to:

•   Encourage the orderly future development of the site;

•   Ensure adequate mitigation of environmental impacts of future development; and

•   Ensure protection and restoration of threatened species and their habitat.

5. The project involves the development of approximately 5,500 residential dwellings; a town centre and neighbourhood centre for future retail and commercial uses; community and educational facilities; open space; wildlife corridors; landscaping and vegetation management; environmental protection areas and rehabilitation of environmentally sensitive land; water management areas; roads, bicycle and pedestrian network; and utility services infrastructure. Schedule 1 of the Concept Approval provided as follows:

SCHEDULE 1

PART A – TABLE

Application made by:

Leda Manorstead Pty Ltd

Application made to:

Minister for Planning

Project Application Number:

06_0316

On land comprising:

Cobaki Lakes,

Lot 1 DP 570076, Lot 2 DP 566529, Lot 1 DP562222, Lot 1 DP 570077, Lot 1 DP 823679 and Lots 46,54, 55, 199, 200, 201, 202, 205, 206, 209, 228 and 305 DP 755740

Local Government Area

Tweed

For the carrying out of:

•      Residential development for approximately 5,500 dwellings;

•      Town Centre and neighbourhood centre for future retail and commercial uses;

•      community facilities and school sites;

• open space;

•      wildlife corridors;

•      protection and rehabilitation of environmentally sensitive land;

•   road corridors and utility services, infrastructure;

•   water management areas; and

•   roads and pedestrian and bicycle network.

PART B – NOTES RELATING TO THE DETERMINATION OF MP NO. 06_0316

Responsibility for other consents / agreements

The Proponent is solely responsible for ensuring that all additional consents and agreements are obtained from other authorities, as relevant.

…

Tweed Shire Council Consents

This concept plan does not affect DA 92/315, DA 94/438, DA S94/194, DA 96/271, DA S97/54, DA K99/1124 or DA 1262/2001 approved by Tweed Shire Council.

6. The Concept Approval included approved concept plans. One of the approved concept plans, entitled the “Precinct Location Plan”, showed development precincts within the Cobaki Estate, marked by numbers. Concept Approval was granted for residential development for the dwellings and associated facilities as described in condition A1 of Schedule 2.

7. In Schedule 2, the Concept Approval was relevantly stated in conditions A2 and A3 “to be undertaken generally in accordance with” the plans and documents thereat. Thus condition A3 provided as follows:

A3 Project in Accordance with Documents

The project is to be undertaken generally in accordance with the following documents:

Environmental Assessment

(1)   Cobaki Lakes Estate Concept Plan Environmental Assessment Report prepared by JBA Urban Planning Consultants P/L, Volumes 1, 2, 3 and 4 December 2008.

Preferred Project Report

(2)   Preferred Project Report prepared by JBA Urban Planning Consultants P/L, Volumes 1, 2 and 3, October 2009.

(3)   Addendum to Preferred Project Report prepared by JBA Urban Planning Consultants P/L, June 2010 …

8. Importantly, condition C18 of Schedule 2 of the Concept Approval provided that:

C18 Tweed Shire Council Development Consents

Future project/development applications for each stage of development are to outline the status of Tweed Shire Council development consents DA 92/315, DA 94/438, DA S94/194, DA 96/271, DA S97/54, DA K99/1124 or DA 1262/2001 and include a detailed description of how these consents relate to the application.

9. The Concept Approval provided for a large area of public open space running in a north-south orientation through the centre of the site, namely, the “Central Open Space Area” (“COS”). It also earmarked an area to the south-east of the COS for community or educational facilities, that is, the “Southern Special Purpose Precinct” (“SSPP”).

10. Pursuant to s 75P of the EPAA further approvals were necessary before the commencement of the project. The Concept Approval provided that the COS, and an area known as “Precinct 5”, would be subject to project approval under Pt 3A, while the remainder of the works could be approved under Pts 4 or 5 of the EPAA, as relevant.

The Project Approval

11. On 28 February 2011 the Deputy Director-General, Development Assessment and Systems Performance of the Department of Planning, as delegate of the Minister, granted Leda Project Approval MP08_0200 under s 75J of the EPAA (“the Project Approval”).

12. The Project Approval approved the subdivision of the entire Cobaki Estate into seven lots and, relevantly for present purposes, it approved staged bulk earthworks to be carried out in the COS to “create the central open space, riparian corridor, structured open space, and future stormwater drainage area”. Schedule 1 of the Project Approval provided that:

SCHEDULE 1

PART A – TABLE

Application made by:

LEDA Manorstead Pty Ltd

Application made to:

Minister for Planning

Project Application number:

08_0200

The site: 

Cobaki Estate, Cobaki

Lot 1 DP 570076, Lot 2 DP 566529, Lot 1 DP562222, Lot 1 DP 570077, Lot 1 DP 823679 and Lots 46,54, 55, 199, 200, 201, 202, 205, 206, 209, 228 and 305 DP 755740

Local Government Area

Tweed

For the carrying out of:

•   Subdivision of the entire Cobaki Estate site into seven (7) lots (including one residue lot for future urban development - Lot 807);

•   Staged bulk earthworks to create the central open space, riparian corridor, structured open space, and future stormwater drainage area;

•   Road forming works and culverts crossing the central open space (including Lot 802);

•   Road forming works across saltmarsh areas, including culverts and trunk sewer and water services (Lot 804);

•   Revegetation and rehabilitation of environmental protection areas for coastal saltmarsh (Lots 805 and 806); and

•   Establishment of freshwater wetland and fauna corridors (Lots 801 and 803).

Type of development:

Project Application

13. On 30 May 2011 the Council granted DA 10/0800 in respect of the Cobaki Estate subdivision of Precincts 1 and 2. The development was to be carried out in accordance with, amongst other things, the “Engineering Services Report of Cobaki Precincts 1 and 2 March 2011 Revision 02 (see condition 1).

14. Condition 50 of DA 10/0800 provided as follows:

50.    In accordance with Condition C18 of Concept Plan MP06_0316, a detailed description is to be provided to the satisfaction of the General Manger or delegate demonstrating compliance with previous Tweed Shire Council consent conditions intended to preserve wildlife corridors and protect and offset threatened species, populations and ecological communities and their habitats outside of the Concept Plan habitat requirements, or relevant reasons (such as subsequent amendments) as to why compliance was not required or may be transferred to current DAs. Such description is to include extracts of all relevant plans referred to in the conditions listed below sufficient to understand the land areas of relevance to the conditions and any overlap with current applications. Additional offset must be proposed if clearing of native vegetation has been undertaken not in accordance with the below development consents. Conditions to be addressed are as follows:

(a)   D94/0438.04 Conditions 23, 24, 34a, 35, 36a, 37 and 38.

(b)   K99/1124.06 Conditions 10, 15A, 30, 31, 41, 81, 83A, 90, 91, 92A, 93, 94A, 95A, 96, 97, 98, 99, 100, 101, 102A, 103, 104, 105, 106, 107,108, 109 and Schedule B (National Parks imposed conditions via concurrence for Species Impact Statement.

(c)   1262/2001DA.02 Condition 9, 16, 17, 18.

Where required the development consents are to be modified in accordance with Section 80A(1) of the Environmental Planning and Assessment Act and Regulations to be consistent with this consent.

15. DA 10/0800 therefore permitted cut and fill within Precincts 1 and 2 to be used elsewhere on the Cobaki Estate.

16. To date no construction certificate has been issued for DA10/800.

Modification of the Project Approval

17. The Project Approval was the subject of three modifications. The first modification was on 29 May 2013 (“MOD1”). The second was on 3 April 2014 (“MOD2”). And the third modification was on 13 February 2015 (“MOD3”).

18. In February 2013 Leda applied to modify the Project Approval for the specific purpose of borrowing fill from Precincts 1 and 2 for use in the COS (MOD1). Leda’s Cobaki Estate Development Precincts 1 & 2 Bulk Earthworks Environmental Assessment Report (Revision 1) dated February 2013 by SMEC Urban Consulting (“the 2013 SMEC EAR”) which accompanied the modification application, indicated that the borrowing of fill from those precincts for use in the COS had commenced prior to modification having been sought.

19. Relevantly for present purposes, MOD1 added new condition 21A and deleted and replaced condition 41 of the Project Approval to enable bulk earthworks to be carried out not just within the COS, but also within Precincts 1 and 2 “for the sole purpose of the winning of fill to be placed in the central open space area”.

20. The Director-General’s Environmental Assessment Report dated May 2013 (“the 2013 DG EAR”) responded to the modification application. Table 3 entitled “Project Approval Modification Summary” stated as follows:

Table 3: Project Approval Modification Summary

Aspect	Description
…
Project in accordance with plans (Condition 3)	Modification to correctly reference the amended ecological management plans and Precincts 1 and 2 bulk earthworks drawings.
…
Bulk earthworks (new Condition 21A)	Modification to specify the details required to be submitted with the construction certificate for the earthworks for the purposes of winning of fill from Precincts 1 and 2
…
Earthworks – Limits of Approval (Condition 41)	Modification to clarify that no bulk earthworks are to be undertaken outside of the central open space area, other than in Precincts 1 and 2, approved under the modified project approval (08_0200 MOD 1).

21. In section “5.2.2 Bulk Earthworks” of the 2013 DG EAR, the report noted that:

5.2.2 Bulk Earthworks

Under the project approval, bulk earthworks have been approved across the central open space area to shape the landform upon which the roads, structured and casual open space sites, and environmental enhancement works will be carried out – these earthworks largely consist of filling operations. Bulk earthworks are proposed to be carried out across the site generally in accordance with the plan provided in Figure 17. Although notations on this plan identified that suitable material from Precincts 1 and 2 was to be used as fill material in the central open space area, details of such works were not submitted as part of the project application and the proponent did not seek approval for such works in the Environmental Assessment. As such the department did not assess the environmental impacts of any excavation works outside the central open space area.

To specify the limits of the approval in relation to bulk earthworks, the department included the following condition on the project approval (Condition 41):

Earthworks – Limits of Approval

Unless approved sources of fill material are identified in the approved CEMP or approved bulk earthworks construction certificates(s), no bulk earthworks are to be undertaken outside of the central open space area identified in the approved plans.

Note: Fill material required for the Central Open Space area sourced from elsewhere on the site shall be identified in the CEMP and may be subject to separate earthworks approvals over those areas.

The proponent argued that the project approval authorises the excavation of land comprising Precincts 1 and 2 for the purpose of winning fill for use in the central open space area, relying solely on the approved plan – YC0229-1P1-SK02 – Phase 1 – Landforming/Earthworks Layout Plan (Figure 17) and their interpretation of Condition 41, being that Condition 41 enables a construction certificate to be issued in relation to the excavation in Precincts 1 and 2, to the extent excavation is necessary to win fill for use in the central open space area, and that Condition 41 of the project approval foreshadows this possibility.

While there has been some debate about the interpretation of Condition 41, the department is of the opinion that the winning of fill from Precincts 1 and 2 requires further development approval. External legal advice has confirmed this position.

The proponent has agreed to seek approval for the winning of fill from Precincts 1 and 2 for the construction of the central open space area as part of this modification request. The proponent has submitted, as part of this modification request, relevant detailed bulk earthworks drawings (survey drawings, cut and fill plans, erosion and sediment control plan) and a supporting environmental impact assessment report for the winning of fill from Precincts 1 and 2 for the department’s consideration.

…

In light of the above, the department recommends that the wording of Condition 41 be amended such that the limits of the approval in relation to bulk earthworks are clear and unambiguous. The revised wording is:

a.   No bulk earthworks are to be undertaken outside of the central open space area (as defined in Schedule 1 Part C of this approval)

b.   Notwithstanding a.) above, bulk earthworks may also be carried out in Precincts 1 and 2 for the sole purpose of the winning of fill to be placed in the central open space area.

c.   Fill material required for the central open space area sourced from elsewhere on/or the site requires separate development approval.

d.   Retaining walls and fire trail profiles identified on bulk earthworks drawings YC0229-1E1-ES04 (Rev D), YCO229-1E1-1S05 (Ref A), YCO229-1E1-ES06 (Rev A), YCO229-1E1-ES07 (Rev A) are not approved.

Note: Retaining wall heights and fire trail profiles within Precincts 1 and 2 shall be submitted to council for approval in accordance with the conditions of development approval DA10/0800.

The department has also recommended a new condition of approval that sets out the details required to be submitted with the construction certificate application for the bulk earthworks activities in Precincts 1 and 2. This includes a requirement for maximum exposed areas to be no greater than 5ha, unless otherwise approved by the Director-General. The department, council and OEH are satisfied with the proponent’s proposed environmental mitigation measures for the bulk earthworks activities.

The department is therefore satisfied that the bulk earthworks activities for the winning of fill in Precincts 1 and 2 will be managed appropriately.

22. The Department of Planning and Infrastructure therefore recommended with respect to condition 21A that “a new condition of approval to outline the required information to be submitted with an application for a construction certificate for the winning of fill from Precincts 1 and 2, and limiting maximum exposed areas to 5ha, unless otherwise approved by the Director-General”.

23. As inserted by MOD1, condition 21A was in the following terms:

21A.    Bulk Earthworks

a.    The Proponent shall submit the following plans and specifications with an application for construction certified for the bulk earthworks in the borrow areas within Precincts 1 and 2:

I.   Natural and finished development levels (spot levels and contours) clearly detailed with a legible scale;

II.   Sediment and erosion control plans;

III.   Evidence that the works will be undertaken under geotechnical supervision by a registered Geotechnical Engineer;

IV.   All temporary and permanent batter slopes will appropriately stabilised by way of grass seeing or hydromulch immediately after completion; and

V.    An earthworks phasing diagram that defines maximum exposed areas.

b.    Bulk earthworks for the site are to be limited to a maximum exposed disturbed area (that has not been permanently vegetated) not exceed a maximum of 5ha at any time to reduce exposed areas, unless otherwise approved by the Director-General.

c.    Works are to be topsoiled, mulched and seeded immediately after completion to protect the exposed areas from water and wind erosion.

24. Condition 41 stated:

41.    Earthworks – Limits of Approval

a.    No bulk earthworks are to be undertaken outside of the central open space area (as defined in Schedule 1 Part C of this approval)

b.    Notwithstanding a.) above, bulk earthworks may also be carried out in Precincts 1 and 2 for the sole purpose of the winning of fill to be placed in the central open space area.

c.    Fill material required for the central open space area sourced from elsewhere on/or the site requires separate development approval;

d.    Retaining walls and fire trail profiles identified on bulk earthworks drawings YCO229-1E1-ES04 (Rev D), YCO229-1E1-ES05 (Rev A), YCO229-1E1-ES06 (Rev A), YCO229-1E1-ES07 (Rev A) are not approved.

Note: Retaining wall heights are fire trail profiles within Precincts 1 and 2 shall be submitted to council for approval in accordance with the conditions of development approval DA10/0800).

25. The Project Approval was further modified on 3 April 2014 by way of the determination of a modification application which included a request by Leda to be permitted to win fill from borrow areas in Precincts 9 and 11 for use in the COS (MOD2). Schedule 1 of the MOD2 approval was as follows:

SCHEDULE 1

Project Approval:   08_0200 granted by the Deputy Director-General, Development Assessment & Systems Performance on 28 February 2011.

Proponent:      LEDA Manorstead Pty Ltd

For the following:   Cobaki Estate at Lot 1 DP 5700076, Lot 2 DP 566529, Lot 1 DP 562222, Lot 1 DP 570077, Lot 1 DP 823679 and Lots 46, 54, 55, 199, 200, 201, 202, 205, 206, 209, 228 and 305 DP 755740

Modification:      08_0200 MOD 2 involving amendments to:

…

•   Condition 21A to reference do Precincts 9 & 11 as bulk earthwork borrow areas;

…

•   Condition 41(b) to reference Precincts 9 & 11 as areas whereby bulk earthworks may be carried out for the sole purpose of winning fill to be placed in the central open space area;

…

•   Condition 41(c) to allow fill material sourced for the central open space to be approved by the Director-General…

26. The Director-General’s Environmental Assessment Report published in April 2014 in relation to MOD2 (“the 2014 DG EAR”) noted that some material cut from Precinct 9 had already been used as fill in the COS, that is, before this application had been determined.

27. MOD2 inserted references to Precincts 9 and 11 in Conditions 21A and 41 of the Project Approval.

28. In July 2014 Leda applied for MOD3, which sought to expand the approved Precinct 9 borrow area and the approved fill areas to include the SSPP. There was no alteration to condition 21A. Condition 41 was modified to refer to the placement of fill within the SSPP area to carry out bulk earthworks for the sole purpose of winning fill to be placed in that area. The list of approved plans was expanded to include the filling of the SSPP and the cutting of the expanded Precinct 9 borrow area.

29. As referred to in this judgment, the Project Approval is that as modified by MODs 1, 2 and 3.

30. The COS was defined in Part C of Schedule 1 of the Project Approval:

Central Open Space Area means the area generally identified by the Cover Sheet and Locality Plan, Revision B prepared by Yeats Consulting Engineers and dated 17 September 2010.

31. Schedule 2 of the Project Approval provided that:

Schedule 2

Conditions of Approval

Administration Conditions

1.   Project Description

Project approval is granted only to:

PART ONE – SUBDIVISION

•   Subdivision of the entire Cobaki Estate site into seven (7) lots (including one residue lot for future urban development - Lot 807);

PART 2 – BULK EARTHWORKS AND CIVIL WORKS

•   Staged bulk earthworks to create the central open space, riparian corridor, structured open space, and future storm water drainage area;

•   Road forming works and culverts crossing the central open space (including Lot 802);

•   Road forming works across saltmarsh areas, including culverts and temporary trunk sewer and water services (Lot 804);

PART THREE – ENVIRONMENTAL ENHANCEMENT WORKS

•   Revegetation and rehabilitation of environmental protection areas for coastal saltmarsh (Lots 805 and 806); and

•   Establishment of freshwater wetland and fauna corridors (Lots 801 and 803).

2.   Concept Plan – Cobaki Estate

The project shall be generally undertaken within the terms of the concept approval for the Cobaki Estate (Project 06_0316) approved by the Minister on 2 December 2010.

1.   Project in Accordance with Plans

The project shall be undertaken generally in accordance with the following plans, except where varied by conditions of approval:

…

Earthworks Drawings prepared by Yeats Consulting Engineers
Drawing No.	Revision	Name of Plan	Date
YC0229-1P1-EC01	B	Cut and Fill Plan Sheet 1 of 2	17 September 2010
YC0229-1P1-EC02	B	Cut and Fill Plan Sheet 2 of 2	17 September 2010
YC0229-1P1-ES01	B	Bulk Earthworks Sections Sheet 1 of 2	17 September 2010
YC0229-1P1-ES02	B	Bulk Earthworks Sections Sheet 2 of 2	17 September 2010
YC0229-1P1-ES03	B	Bulk Earthworks Typical Sections	17 September 2010
YC0229-1P1-EW01	B	Bulk Earthworks Layout Plan Sheet 1 of 8	17 September 2010
YC0229-1P1-EW02	B	Bulk Earthworks Layout Plan Sheet 2 of 8	17 September 2010
YC0229-1P1-EW03	B	Bulk Earthworks Layout Plan Sheet 3 of 8	17 September 2010
YC0229-1P1-EW04	B	Bulk Earthworks Layout Plan Sheet 4 of 8	17 September 2010
YC0229-1P1-EW05	B	Bulk Earthworks Layout Plan Sheet 5 of 8	17 September 2010
YC0229-1P1-EW06	B	Bulk Earthworks Layout Plan Sheet 6 of 8	17 September 2010
YC0229-1P1-EW07	B	Bulk Earthworks Layout Plan Sheet 7 of 8	17 September 2010
YC0229-1P1-EW08	B	Bulk Earthworks Layout Plan Sheet 8 of 8	17 September 2010
YC0229-1P1-SK02	A	Phase 1 - Landforming/Earthworks Layout Plan	22 December 2010

4.   Project i

…

4

…

4. Project in Accordance with Documents

The project will be undertaken generally in accordance with the following documentation (including any Appendices contained therein)

a)   Environmental Assessment Report: Cobaki Lakes Estate - Project Application No. 08_0200 for Central Open Space, Lake and Riparian Corridor, Volumes 1 and 2 (and all associated Appendices) prepared by JBA Urban Planning Consultants Pty Ltd on behalf of LEDA Manorstead Pty Ltd, dated December 2009; and

b)   Preferred Project Report: Cobaki Lakes Estate - Project Application No. 08_0200 for Central Open Space and Riparian Corridor, Volumes 1 and 2 (and all associated Appendices) prepared by JBA Urban Planning Consultants Pty Ltd on behalf of LEDA Manorstead Pty Ltd, dated July 2010.

c) Addendum to the Preferred Project Report: Cobaki Estate Part 3A Project Application (MP08_0200) for Central Open Space and Riparian Corridor, Volumes 1 and 2 (and all associated Appendices) prepared by JBA Urban Planning Consultants Pty Ltd on behalf of LEDA Manorstead Pty Ltd, dated October 2010.

32. Critically, condition 21A of Schedule 2 of the Project Approval was in the following terms (emphasis added):

21A. Bulk Earthworks

a.   The Proponent shall submit the following plans and specifications with an application for construction certificate for the bulk earthworks in the Borrow Areas within Precincts 1, 2, 9 and 11:

i.   Natural and finished development levels (spot levels and contours) clearly detailed with a legible scale;

ii.   Sediment and erosion control plans;

iii.   Evidence that the works will be undertaken under geotechnical supervision by a registered Geotechnical Engineer;

iv.   All temporary and permanent batter slopes will be appropriately stabilised by way of grass seeding or hydromulch immediately after completion; and,

v.   An earthworks phasing diagram that defines maximum exposed areas.

b.   Bulk earthworks for the site are to be limited to a maximum exposed disturbed area (that has not been permanently vegetated) not exceeding a maximum of 5ha at any time to reduce exposed areas, unless otherwise approved by the Director-General.

c.   Works are to be topsoiled, mulched and seeded immediately after completion to protect the exposed areas from water and wind erosion.

33. By letter dated 19 June 2013, the Director-General approved an exceedance of the maximum exposed disturbed area specified in condition 21A b. of the Project Approval of up to 0.59 ha in stages 4 and 5, thereby increasing the maximum area for the purposes of condition 21A for earthworks for those stages of the project from 5 to 5.59 ha.

34. The circumstances in which the 5 ha limit under condition 21A b. was increased to 5.59 ha are found in correspondence in the period from 12 to 13 June 2013 between Mr Grant Epple, the Project Manager for Leda Developments Pty Ltd (“Leda Developments”), and Ms Sally Munk, a Senior Planner in the Department.

35. Shortly after MOD1 was granted, on 12 June 2013 Mr Epple wrote to Ms Munk, submitting for approval an Earthworks Phasing Plan prepared by Yeats Consulting Engineers (“Yeats”) (Drawing No YC0229-1E1-SK15 Rev A) (“the Earthworks Phasing Plan”).

36. Ms Munk replied by email the next day querying whether the Earthworks Phasing Plan meant that there would be exceedances of the 5 ha limit. She stated that options should be provided for sequencing the earthworks to reduce the exposed area.

37. Mr Epple replied the same day attaching an additional Yeats document entitled Earthworks Phasing and Sequencing Plan. The document shows a proposed sequence of cutting and filling and intermittent intervening remediation, with a progressive tally of disturbed areas under the column “Progressive Exposed Area”. It detailed a progressive total of exposed areas in three instances exceeding 5 ha, with the highest total being 5.50 ha. In his email, Mr Epple stated:

Further to our telephone discussion earlier today, please find attached an “Earthworks Phasing and Sequencing Plan” which needs to be read in conjunction with the Yeats YC0229-1E1-SK15 A plan.

Due to the volumes of cut and fill material to be handled, we will need to extend our activities slightly beyond the maximum 5ha limit at some stages but at other times we can contain our activities to areas well under 5ha.

I trust this detailed sequencing program satisfies your queries below and I look forward to your early approval.

38. Five days later, on 19 June 2013, Ms Heather Warton, as delegate of the Director-General, expressly referred to this email exchange in the formal notification of approval of an increase of the limit under condition 21A b. from 5 ha to 5.59 ha.

39. On 21 June 2013, construction certificate (“CC”) 107 (“CC 107”) authorising the commencement of MP08­_0200 was issued by a private certifying authority (“PCA”), Mr Michael Shaw. The approved stamped documents attached to CC 107 included the Earthworks Phasing Plan and the Earthworks Phasing and Sequencing Plan. Plans endorsed under CC 107 gave approval for 4,900m³ of material to be obtained from Precinct 9 for the filling of Cobaki Parkway South.

40. In July 2014 Leda applied for MOD3 seeking to expand the approved Precinct 9 borrow area and the approved fill areas to include the SSPP. There was no contemporaneous modification to condition 21A. However, condition 41 was modified to refer to the SSPP, and the list of approved plans was expanded to including filling of the SSPP and the cutting of the expanded Precinct 9 borrow area.

41. For the purpose of these proceedings, condition 41 of Schedule 2 of the Project Approval is in the following terms:

41. Earthworks – Limits of Approval

a.   No bulk earthworks are to be undertaken outside of the COS (as defined in Schedule 1 Part C of this approval)

b.   Notwithstanding a.) above, bulk earthworks may also be carried out in Precincts 1, 2, 9 and 11 for the sole purpose of the winning of fill to be placed in the Central Open Space Area and the SSPP shown on bulk earthworks drawings specified in Condition 3.

c.   Notwithstanding a.) and b.) above, fill material required for the COS sourced from elsewhere on/off the site requires separate development approval, unless otherwise approved by the Director-General.

d.   Retaining walls and fire trail profiles identified on bulk earthworks drawings YCO229-1E1-ES04 (Rev D), YCO229-1E1-ES05 (Rev A), YCO229-1E1-ES06 (Rev A), YCO229-1E1-ES07 (Rev A) are not approved.

42. As at 2 July 2015 there was a mound of earth approximately two metres high, covered with vegetation, located to the east of Cobaki Parkway, near the northern intersection of Cobaki Parkway and Sandy Lane (“the earthen mound”).

Historical and Current Development Consents Relating to Cobaki Estate

43. The development of the Cobaki Estate preceded the granting of the approvals under Pt 3A of the Act. The following development consents were issued by the Council under Pt 4 of the EPAA with respect to Cobaki Estate prior to the Concept Approval being granted:

1. development consent DA 92/315 issued on 5 January 1993;

2. development consent S94/0194 issued on 2 August 1996, and amended on 7 December 2011;

3. development consent DA 96/271 issued on 8 April 1997;

4. amended consent S97/54 (or “S97/0054.02”) issued on 16 September 2002.

5. amended consent DA 1262/2001 issued on 8 October 2002;

6. amended consent K99/1124 (or “K99/1124.02”) issued on 28 February 2003;

7. amended consent 0130/2001S96 issued on 29 August 2003;

8. development consent DA03/1775 issued on 4 June 2004;

9. amended consent 94/438 (or “D94/0438.04”) issued on 6 December 2004;

10. amended consent K99/1124 (or “K99/1124.04”) issued on 2 July 2008;

11. amended consent K99/1124 (or “K99/1124.05”) issued on 6 March 2009;

12. amended consent DA 1262/2001 (or “1262/2001DA.02”) issued on 23 August 2010; and

13. DA 10/0800 issued by the Council on 30 May 2011.

44. In addition, numerous CCs were issued authorising bulk earthworks within Precincts 1, 2, 9 and 11 (including CC 02/1368 and CC 10/0717, discussed in greater detail below).

45. The Concept Approval, Project Approval and development consents were all granted to Leda.

46. The development consents are relevant because a central aspect of Leda’s defence is its contention that active areas of disturbance from bulk earthworks the subject of each of the three changes is attributable to bulk earthworks carried out under one of more of the historic or existing development consents. The prosecutor, the Secretary of the Department of Planning and Environment (“the Secretary”), denies this claim and says that the impugned bulk earthworks were all carried out in furtherance of the Project Approval, and therefore those earthworks were subject to the conditions of the Project Approval.

The Three Charges

47. There are several observations that must be made in respect of the charges against Leda. First, Leda faces three charges for alleged offences in contravention of s 125(1) of the EPAA concerning alleged breaches of conditions 21A b. and 41 of the Project Approval contrary to s 75D of the EPAA, which states that a person carrying out a Pt 3A project must comply with any conditions to which the project approval is subject.

48. Part 3A of the EPAA was repealed effective on 1 October 2011. However, the relevant provisions of Pt 3A of the Act continued to apply at all relevant times to the project by reason of the application of the savings and transitional provisions contained in Sch 6A of that Act (see, in particular, cls 2 and 3 of Sch 6A).

49. Second the charges in matter no 186631 of 2017 (“the first summons”) and matter no 186632 (“the second summons”) alleges a continuing contravention by the Leda of condition 21A b. of Sch 2 to the Project Approval over a nominated charge period, namely, in the first summons, “on and from 21 April 2014 and continuing to 30 July 2015”, and in the second summons, "on and from 31 July 2015 and continuing to 7 March 2017”. The charge periods in the first and second summonses are therefore temporally contiguous.

50. Third, a separate offence is charged for the period on and from 31 July 2015 under the second summons because that was the date on which material amendments to the EPAA came into force creating the three tier sentencing regime by the introduction of ss 125A to 125C of that Act. This materially altered the penalty provision previously applicable to the entirety of the charge period in the first summons.

47. Fourth, the particulars of the second summons include particulars of the matters specified in s 125A(1)(a) and (b) of the EPAA, namely, that the offence was committed intentionally and was likely to cause significant harm to the environment.

48. In Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd [2018] NSWLEC 114, Pain J held that those matters were not elements of a separate offence but were matters in respect of sentence. Consequently, her Honour ordered that no evidence was to be adduced in respect of s 125A(1)(a) and (b) at any hearing on liability (at [78]).

49. Finally, the third charge states that (matter no 86634 of 2017, or “the third summons”) between 1 September and 2 November 2015, Leda contravened condition 41 of the Project Approval by carrying out bulk earthworks in an area outside the areas specified in condition 41 (that is, in an area to the east of the Cobaki Parkway, near the intersection of Sandy Lane).

The Elements of the Offences

54. As stated above, each of the charges alleges a contravention of a condition of the Project Approval, which is an offence against s 125(1) of the EPAA by reason of a contravention of s 75D of the Act.

55. Section s 75D provides that:

75D   Minister’s approval required for projects

(1)    A person is not to carry out development that is a project to which this Part applies unless the Minister has approved of the carrying out of the project under this Part.

(2)    The person is to comply with any conditions to which such an approval is subject.

56. Under the terms of s 125(1) of the EPAA, compliance with any condition to which an approval is granted under Pt 3A of the Act is a matter or thing that is directed to be done by or under the Act. Consequently, if a person does not comply with that direction the person commits an offence as prescribed by s 125(1) of the Act.

57. The elements of an offence against s 125(1) of the EPAA for contravening s 75D(2) of the Act, which the Secretary must prove beyond reasonable doubt in respect of each of the three charges, are that:

1. Leda is a person;

2. carrying out development;

3. that is a project to which Pt 3A applies; and

4. Leda did not comply with a condition to which an approval under Pt 3A to carry out the project is subject.

58. There is no doubt that Leda is a person who was carrying out development approved under the Project Approval for the purpose of s 75D of the EPAA. Leda is, moreover, the owner of the Cobaki Estate, the applicant for and holder of the Project Approval (including MODs 1 to 3), and is the applicant for, and holder of, the CCs granted under the Project Approval.

59. In respect of each of the three charges, the only element of the offences that was contentious was whether or not Leda complied with the relevant conditions attached to the Project Approval. In respect of each of the first and second summonses, the issue is whether Leda complied with condition 21A b. of the Project Approval, as in force during the respective charge periods. In relation to the third summons, the issue is whether Leda complied with condition 41 as in force during the charge period nominated in the summons.

60. The remaining elements of the offences were not in dispute. They have, in any event, been demonstrated to the requisite degree by the evidence comprising the applications for, and the granting of, the Pt 3A approvals, including MODs 1 to 3, and by the evidence that Leda was carrying out the project at the Cobaki Estate.

2017 Mills Oakley Letter Admitting Breach of Condition 21A b.

61. Before the Court was a letter dated 19 April 2017 from the solicitors for Leda, Mills Oakley, to the Department of Planning and Environment (“the DPE”), which relevantly said the following: 

We refer to our letter of 19 October 2016. We also refer to the subsequent meeting we (and the directors of our client) had with Mr Marcus Ray, Deputy Secretary (of the Department), on 8 December 2016.

At the meeting on 8 December 2016 we informed Mr Ray that after:

•   the retrieval and compiling of documents to comply with the ‘section 119J’ notice issued by the Department;

•   a review by our client of those documents; and

•   a consideration by our client of the possible adverse environmental impacts of relevant actions,

our client may be in a position to admit to certain matters.

We explained – on behalf of our client – that we expected an early and frank admission by our client would reduce or eliminate the need for the Department to divert resources in what might otherwise be a costly and complex investigation.

On 30 March 2016 you informed us (by email) that this submission must be provided to you by 13 April 2017.

Exposed bulk earthworks (condition 21A(b))

Our client admits for part of the period between January 2014 and September 2016 works that were regulated by project approval 08_0200 were not carried out in strict compliance with condition 21A(b).

That is, in carrying out bulk earthworks under the project approval, the maximum exposed disturbed area relating such works (that had not been permanently revegetated) exceeded the maximum of five hectares set by condition 21A(b).

Our client was the beneficiary of the work that was carried out and is liable for this breach under section 75D of the former Part 3A provisions of the Environmental Planning and Assessment Act 1979 (the Act).

In considering what action the Department will now take, we ask the Department to bear in mind that there was no material adverse environmental impact from the breach.

Condition 21A(b) was inserted as a result of ‘Mod 1’. It arose from submissions made by the Tweed Shire Council (the Council). The submissions were made specifically (and only) in relation to the control of dust. Whilst this motive is not explicit in the Director-General’s assessment report for Mod 1, it is explicit in section 5.4 of the report for ‘Mod 2’:

[T]he 5ha limit is a requirement to reduce the impact of dust emissions on nearby residents.

We are instructed that an analysis of the records (kept by the successive environmental officers, the Council and the certifier) shows that, over the four-year period from August 2012 to the present:

•      Five people made a total of eight complaints about dust in the approximately three-month period between 11 October 2013 and 4 December 2013. Five of these complaints were from three people about dust on the three days of 7, 8 and 12 November 2013.

These events occurred when earthworks were active in Cobaki’s precincts 1 and 3 – immediately adjacent to the Currumbin Waters residential area. The complainants were apparently located predominantly in Sawtell Drive, but also at Ajax Court. We enclose a map showing these addresses.

•   There were no dust complaints between December 2013 and February 2016. On 25 February 2017 a complaint was made concerning dust nuisance on the prior weekend. Acknowledgement was made by the complainant that there were trespassers (four-wheel drive vehicles and off-road bikers) on the property and that they were the cause of the dust problem.

Our client has observed that the problem is not caused by trespassers riding on the site’s gravel roads or open earthworks areas. The problem arises from trespassers’ activity over sloping areas that have never been the subject of earthworks. Their activity creates tracks – resulting from the frequency of this use – from which topsoil dust plumes result.

We are instructed that:

•   None of the above dust complaints were caused by exposed bulk earthworks areas exceeding the limits of approval.

•   None of the complaints were made by residents in locations near to, or that might conceivably have been affected by, earthworks in areas of the site (other than in precincts 1 and 2).

…

Apology

Our client acknowledges that breaching conditions of the project approval and the development consent is not acceptable. Even if there is no adverse impact from a breach, our client acknowledges that conditions must still be obeyed.

… 

Our client deeply regrets and apologises for the two breaches outlined above. There was clearly a failure on our client’s internal systems. Our client acknowledges that such failures cannot be tolerated and it must ensure that such failures do not re-occur.

…

Next steps

In response, our client submits the following:

•   Under the Department’s Compliance Policy – in circumstances where there has been no or only low environmental harm – a penalty notice would not normally be issued. The only identified exception is when there is a need to deter further breaches because (for example) the offender submitted false and misleading information about the breach. No false or misleading information has been provided. Our client has co-operated fully with your compliance officers. This letter represents a further step in our client’s co-operation with you.

•   The breach of condition 21A(b) offence is at the lower end of the scale of seriousness, as there has either been no material environmental harm as a result of this breach.

•   The creation of the stockpile did involve some minor transitory environmental impact. However, this impact would not have been avoided if the correct procedure had been followed (ie obtaining the written consent of the SWAC). Accordingly, this breach is still at the lower end of the scale of seriousness. It also reflects a procedural failure in 2007 and 2008. Considerable time has elapsed since this procedural failure occurred.

•   Given our client’s co-operation and its apology (set out above), these breaches should be assessed as only having low significance.

•   An appropriate response in the circumstances would be to issue a warning or advisory letter (ie an official caution) in relation to both breaches.

62. Attached to the letter was an aerial photograph of the subject area and a report from JWA Pty Ltd Ecological Consultants entitled Impact Assessment of the Stockpiling of Soil on Part of the Cobaki Parkway Alignment Cobaki Estate dated April 2017.

63. It is important to note several things about the letter. First, it was from Leda’s solicitors, that is to say, it may be assumed that the admissions were made pursuant to legal advice. Second, the admissions were, among other things, made in respect of condition 21A b. of the Project Approval, alleged breach of which gave rise to two of the three charges against Leda in these proceedings. Third, as is evident from the letter, the admissions were made voluntarily in the hope of obtaining a dispensation from the DPE, albeit prior to any charges being laid against Leda. Proceedings for the condition 21A b. contraventions were commenced on 22 June 2017.

64. On 15 November 2018 Leda sought to withdraw the admissions contained in the Mills Oakley letter. The DPE refused its consent to the withdrawal.

65. The letter was admitted into evidence over the objection of Leda (Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 2) [2018] NSWLEC 195).

Whether the Project Approval Affected the Operation of Pre-Existing Consents

66. Leda submitted that the Secretary’s failure to exclude disturbances arising from bulk earthworks carried out under pre-existing or historical development consents was fatal to the Secretary’s case.

67. In particular, Leda submitted that bulk earthworks carried out by it pursuant to pre-existing consents had to be excluded from the hectare limit imposed by condition 21A b. of the Project Approval upon the proper construction of that condition. This was because Pt 3A did not apply to the carrying out of development that had been authorised by a consent in force under Pt 4 prior to the declaration of the application of Pt 3A to the project for three reasons.

68. First, as a matter of law, the deeming provisions of Pt 3A were not engaged because the Pt 3A declaration to the project excluded prior consents. That is, neither s 75ZA of the EPAA nor cl 8M of the Environmental Planning and Assessment Regulation 2000 had the effect of nullifying pre-existing Pt 4 consents and Pt 5 approvals upon the approval of the Cobaki Estate project on 28 February 2011. The declaration of the application of Pt 3A to the project expressly excluded the prior consents. This avoided the effect of s 75B(3) of the EPAA.

69. Second, as a matter of the proper construction of the Concept Approval, the pre-existing Pt 4 consents and Pt 5 approvals were preserved by the Concept Approval. This was clear on the face of the Concept Approval:

(a)   from the outset the application specifically sought to preserve these consents and this was endorsed in the grant of Concept Approval. Condition A3 of Schedule 2 of the Concept Approval listed a number of documents that the project was to be generally undertaken in accordance with. The first document is the Environmental Assessment Report Part 3A Concept Plan by JBA Urban Planning Consultants dated December 2008 (“the 2008 EAR”). The pre-existing development consents were listed in Table 1 and were depicted in Figures 6 and 7 of the 2008 EAR, which noted that (p 14):

(1)   Leda had declared that it intended to continue with, and complete works under, the pre-existing development consents; and

(2)   the works under the development consents were not in conflict with the proposed works under the Concept Plan;

(b)   Part B of Schedule 1 of the Concept Approval specifically referred to seven pre-existing development consents approved by the Council:

Tweed Shire Council Consents

This concept plan does not affect DA 92/315, DA 94/438, DA S94/194, DA 96/271, DA S97/54, DA K99/1124 or DA 1262/2001 approved by Tweed Shire Council.

(c)   and condition C18 of Part 3 of Schedule 2 of the Concept Approval referenced the pre-existing development consents approved by the Council. Condition C18 required future applications to “outline the status” of the consents and to “include a detailed description of how these consents relate to the application”. This was done, for example in the case of development consent DA10/0800 issued by the Council in 2011.

70. The Project Approval was jurisdictionally tied to the Concept Approval and was granted in consequence of it. It could not therefore impose limits on matters excluded from the Concept Approval. For example, condition 2 of Schedule 2 of the Project Approval required that:

The project shall be generally undertaken within the terms of the concept approval for the Cobaki Estate (Project 06_0316) approved by the Minister on 2 December 2010.

71. This was corroborated by the 2013 and 2014 DG EARs for MOD1 and MOD2 of the Project Approval, which identified the pre-existing consents and the preservation of them. For example, for MOD2 the 2014 DG EAR addressed the pre-existing consents in the following terms:

History of Council Approved Development Consents and Construction Certificates

Prior to the concept plan approval in 2010, several development consents were granted by Tweed Shire Council (council) over the subject site between 1993 and 2002 for bulk earthworks and residential subdivision. A summary of existing consents is outlined in the table below. The majority of these consents have been enacted upon by the proponent and extensive bulk earthworks activities across the site have commenced.

…

A number of Construction Certificates have also been issued for bulk earthworks and other civil engineering works including construction of Cobaki Parkway. Figures 4 and 5 illustrate the extent of the existing subdivision and earthworks approved by council across the site. The approved concept plan layout that reflects approved DAs and the project application is shown in Figure 6.

72. This was also consistent with the conclusion that as a matter of law the preservation of the pre-existing historical consents meant that the bulk earthworks permitted under those consents were necessarily excluded from the hectare limit imposed by condition 21A b. of the Project Approval.

73. Third, in addition to the pre-existing historical consents listed in the Concept Approval, the Secretary had failed to take into account bulk earthworks conducted under consents issued in consequence of the Concept Approval.

74. Thus DA 10/0800 was issued by the Council after the Concept and Project Approval. It was a Pt 4 consent in consequence of the Concept Approval which authorised earthworks in Precincts 1 and 2. The whole of those Precincts were approved under that consent for either cut or fill (together with the final subdivision into residential allotments). That consent was, as a matter of construction, independent of the Project Approval. It was the embodiment of the s 75P direction made by the Minister at the grant of the Concept Approval. As an instrument mutually exclusive of the Project Approval it was not constrained by it. Accordingly, works within Precincts 1 and 2 in excess of the utilisation of areas within those Precincts as borrow pits were authorised either by earlier consents, or by this consent, and were not affected by the operation of the conditions of the Project Approval.

75. Finally, Leda submitted that the Secretary had failed to deal with the operation of pre-existing, and other consents by including bulk earthworks conducted under those consents in the works carried out under the Project Approval for the purposes of condition 21A b. The historical consents were coterminous with the areas said by the Secretary to comprise the extent of works the subject of the first and second summons. This evidenced by:

1. the fact that the Concept Approval acknowledged the existence, preservation, and continued operation and availability, of these consents;

2. the evidence of witnesses such as Mr Shaw and Dr Daniel Martens (discussed in detail below);

3. Mr Stewart McLachlan (see further below) conceded that his investigation did not address bulk earthworks conducted under consents other than the Project Approval (T112-113);

4. as at 21 June 2013 (the date CC 107 was issued) bulk earthworks on the site were being carried out beyond the works reflected in the Concept Approval;

5. the only rational basis for the bulk earthworks being carried out in Precincts 1, 2, 9 and 11 was the historic consents;

6. aerial photographs of earthworks as at a particular date did not demonstrate that the works pursuant to the historic consents were exhausted or complete;

7. provided that it has not lapsed, once commenced, a consent is available to authorise works into the future. The presumption is that the works may continue. Accordingly, any later constraints contained in the Project Approval were irrelevant;

8. Mr Leo Watts’s (a specialist aerial surveyor) calculation of disturbed areas as a consequence of bulk earthworks carried out during the charge periods did not exclude disturbance arising from earthworks carried out under other consents; and

9. to the extent that they related to the relevant precincts (that is, excluding the COS and the SSPP), plans prepared by Mr Watts - which were consistent with the plans prepared by Mr McLachlan - correlated with the areas the subject of the historic consents. This was not affected by the later evidence from Mr Watts which excluded non-project related areas (as a subset of his earlier work).

76. These submissions are explored in considerably greater detail below, however, Leda’s contentions ignore a fundamental tenant of planning law. That is, if a person obtains a planning approval that approval does not have to be acted upon, and if it is not acted upon, conditions attached to that approval are not operative. But if a holder of a planning approval acts upon the consent by carrying out the development the subject of the approval, the holder must comply with the approval and any conditions to which it is subject. Thus:

1. there is no statutory or other legal constrain upon the number of development applications that a person can make in respect of the same land. There can be more than one valid and operating consent in existence at any one time and it is possible to undertake works pursuant to more than one consent at a time (Waverley Council v CM Hairis Architects [2002] NSWLEC 180; (2002) 123 LGERA 100 at [30]);

1. where multiple development consents apply to the same parcel of land, all of the consents may operate unless the implementation of one consent is no longer a practical possibility due to development already having been undertaken pursuant to another consent (Liverpool City Council v Home Units Australia Pty Ltd [1973] 2 NSWLR 61 at 70; Drummoyne Municipal Council v Page [1973] 2 NSWLR 566 at 574; and Drummoyne Municipal Council v Lebnan [1974] HCA 34; (1974) 131 CLR 350 at [7]);

2. unless a statue otherwise provides, the granting of a further consent does not operate to revoke prior consents which are in effect (Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 433). Put another way, a later development consent does not, of itself, take precedence over an earlier approval;

3. however, the grant of a development consent “does not purport to have the effect of overcoming any other legal obstacles to the development to which consent is given”, including any legislative hurdles (Grace Bros Pty Ltd v Willoughby Municipal Council (1980) 44 LGRA 400 at 412 and IDA Safe Constructions Pty Ltd v Woollahra Municipal Council (1981) 48 LGRA 62 at 69);

4. a development consent that has been commenced must not be undertaken in breach of any condition of that consent. To do so is a breach of the consent and a breach of the EPAA giving rise to civil and criminal consequences (Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2002] NSWCA 301; (2002) 55 NSWLR 446 at [19] and Rao v Canterbury City Council [2000] NSWCCA 471; (2000) 112 LGERA 360). In Rao Mason P said (at [20]-[21]):

20.    At trial a slightly different point was taken to the one now advanced. It was accepted that there was a development consent and that it was in force under the Act. (A similar concession is made on appeal.) The submission at trial was that the development which was the subject of that consent was still to be carried out. Accordingly, where the summons charged that the consent had been implemented contrary to the specified conditions then it was raising an offence not known to the law because, the consent not having been completed, it could not be said to be implemented contrary to the conditions of the consent. The submission was rejected. Her Honour pointed out that s76(2) speaks of development that “is carried out”. Although the work consented to had not been completely finalised, it was in train and the charge alleged departure from conditions regulating the development work itself.

21.     The submission is repeated on appeal. In my view her Honour was perfectly correct. Some conditions are capable of breach in the course of implementation of the consent. Stipulations that specific trees are to be retained or protected by “a suitable barrier erected prior to and maintained during building operations” are clearly such as of their nature are capable of infraction during development work. Likewise with a prohibition against cutting down existing trees.

In Moss v Kiama Municipal Council [2003] NSWLEC 165; (2003) 127 LGERA 83, Bignold J, following Rao and Hillpalm, opined that (at [44]):

44.    Moreover, the decisions in Hillpalmand Rao mean that such non-compliance with the condition of the development consent has far wider implications in terms of the EP&A Act, than the mere “conflict with the condition of the earlier development consent” as referred to in Pancho Properties. These implications clearly include the inevitable conclusion that the non-compliance with a condition of an earlier development consent, where that condition has an ongoing effect (ie including beyond the life of the existing development consent) constitutes a breach of the EP&A Act—both civil and criminal and is enforceable as such.

6. the enforcement of an operative consent does not necessarily need to wait for the subjective decision of a consent holder to activate the consent. Therefore, a development need not be complete in order to ground an obligation to comply with its conditions because some conditions require compliance during the course of carrying out the development (Viertel v Andrews [2008] NSWLEC 195 at [14]); and

7. it follows, however, that once commenced there is no obligation to fully implement the consent provided that in undertaking part of the development authorised by the consent there has been no breach of any relevant condition of the consent.

77. Applying these fundamental principles, it follows that a person carrying out development pursuant to a Pt 3A approval must comply with the conditions of that approval and that the obligation to do so is not displaced by the existence of another development consent granted for the same parcel of land. If development is carried out under a development consent, including a project approval under Pt 3A of the EPAA, contrary to the conditions to which the grant of consent is subject, there will be a continuing contravention of the consent (Hillpalm at [19] and Moss at [41]–[44]).

78. In the present context, the purpose and effect of earlier grants of consent under Pt 4 of the EPAA was to take the development outside the prohibition in s 4.2 (formerly s 76A) of that Act. It did not have the effect of overcoming any other obstacles there may be to the development imposed by the EPAA – for example, s 75D(2) of Pt 3A (“the person is to comply with any condition to which such approval is subject”) - or another Act (Grace Bros at 411 and IDA Safe Constructions at 69).

79. As the Secretary submitted, the effect of the notation in Schedule 1 of Part B of the Concept Approval stating that the concept plan did not affect historic consents, did not operate to relieve Leda from its obligation to comply with the conditions attached to the Project Approval. The notation did not abrogate the express and unambiguous proscription in s 75D(2) of the EPAA. Rather, consistent with the principles enunciated above, the effect of the notation was to preserve the operation of those consents, assuming that they remained extant, and any obligation that they imposed in respect of works carried out under them.

80. Similarly, condition 2 of Schedule 2 of the Project Approval requiring that the project be generally undertaken within the terms of the Concept Approval did not operate to dispense with Leda’s obligation to comply with the conditions of the Project Approval on the basis that bulk earthworks were carried out in the same areas where earthworks were permitted under the historic consents.

81. If there was any doubt as to the application of Pt 3A to the entirety of the project, the unambiguous language of ss 75B(3) and 75ZA(1) of Pt 3A removes all ambiguity:

75B   Projects to which Part applies

(3)    Related development If only part of any development is a project to which this Part applies, the other parts of the development are (subject to subsection (4)) taken to be a project to which this Part applies. The development is to be dealt with under this Part as a single project.

…

75ZA   Savings, transitional and other provisions

(1)     Development may be declared to be a project to which this Part applies even though action has been taken under Part 4 or Part 5 before the declaration (whether before or after the commencement of this Part) for the purposes of authorising the carrying out of the development under this Act.

82. Therefore, the entirety of the development of the Cobaki Estate may be taken to be a project to which Pt 3A applies, including s 75D(2) of the EPAA. If earthworks were carried out in furtherance of the Project Approval, then compliance with the conditions of the Project Approval was required by Leda.

83. With respect to Leda’s contention that the Concept Approval expressly preserved the pre-existing Pt 4 consents, while it may be accepted that the Concept Approval did not affect those consents insofar as there was no surrender or modification of those approvals and they remained operative, such preservation could not, and did not, have the effect of excusing compliance with the conditions of the Project Approval.

84. This is in conformity with definition of “approved project” in s 75A of Pt 3A, namely, that an approved project “means a project to the extent that it is approved by the Minister under this Part, but does not include a project for which only approval for a concept plan has been given”. In other words, once the project was approved under s 75D(1) of Pt 3A, it comprised both the Concept Approval and the Project Approval, and therefore, s 75D(2) applied, irrespective of the content of the Concept Approval. There was nothing in the Concept Approval that displaced the obligations imposed by the Project Approval. There was, for example, no limitation imposed on the declaration of the project under s 75B(4) of the Act.

85. It is a fact that the development of Cobaki Estate commenced prior to the granting of the Project Approval under Pt 3A of the EPAA pursuant to a number of development consents granted by the Council under Pt 4 of the EPAA. These consents were referred to, and summarised in, the 2013 and 2014 DG EARs in respect of MOD1 and MOD2.

86. Leda asserted that the active areas of disturbance forming bulk earthworks visible on the estate during various site inspections and in aerial photographs was attributable to bulk earthworks carried out under CCs issued under the separate consents. Leda relied primarily on the evidence of Dr Martens and on statements by persons working on the project (namely, Mr Dennis Hughes, Mr Dale Scotcher, Mr Reginald Van Rij and Mr Brandon Yeats. Their evidence is discussed further below). Leda argued that the evidence of the Secretary’s witnesses, especially Mr Shaw, was consistent with this position.

87. But having regard to the legal principles outlined above, if the Secretary demonstrates beyond reasonable doubt that as a matter of fact the bulk earthworks were undertaken for the purpose of carrying out the Project Approval, then by force of statute (ss 75D(2) and 75J(4) of the EPAA) Leda was required to comply with the conditions of that approval. Having said this, Leda does not bear any onus of proving that the earthworks were carried out pursuant to the earlier consents.

88. Leda submitted that the Secretary did not rely on direct evidence that it carried out the bulk earthworks the subject of the changes pursuant to the Project Approval, but instead asked the Court to draw inferences from aerial photographs, observations made by Mr McLachlan during his site inspections, and other circumstantial evidence, that the works were carried out under the Project Approval. Therefore, because the Secretary’s case is circumstantial, that the bulk earthworks were carried out in furtherance of the Project Approval, and not other consent, must be the only rational inference that can be drawn from the evidence before Leda’s guilt can be inferred. Leda submitted that any other conclusion drawn from the evidence before the Court means that a guilty verdict cannot be returned. That is to say, the circumstances must exclude all other reasonable hypotheses not consistent with guilt (Peacock v R [1911] HCA 66; (1911) 13 CLR 619 at 634; Barca v R (1975) 133 CLR 82 at 104; Shepherd v R [1990] HCA 57; (1990) 170 CLR 573 at 578 and 586; Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521 at 536, 570 and 599; and Doney v R [1990] HCA 51; (1990) 171 CLR 207 at 211).

89. The evidence of Dr Martens, however, gives rise to a reasonable hypothesis that raises reasonable doubt, namely, that the bulk earthworks were carried out pursuant to historical and existing consents, and not the Project Approval.

90. For the reasons given below, the Court rejects these submissions. In summary, first, it is not correct to characterise, as Leda does, these proceedings as wholly circumstantial. On the contrary, the Secretary’s case is based on direct evidence, namely, observational evidence from aerial photographs, from photographs taken on the ground, from site visits, and from records of interviews. Second, the Court finds that on the evidence before it the bulk earthworks the subject of the charges were carried out pursuant to the Project Approval. And third, that upon the proper construction of condition 21A b, even if the areas of bulk earthworks the subject of the pre-existing consents are excluded from the calculation of exposed disturbed area for the purpose of that condition, Leda has, in any event, breached the condition.

Principles of Construction Applicable to a Pt 3A Approval

91. All three charges give rise to the issue of the proper construction of the Project Approval in order to determine whether, on the evidence before the Court, the Council has demonstrated beyond reasonable doubt that the conditions were contravened by Leda during the charge period.

92. In Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4, the Court set out the principles of construction of development consents, which are no less apposite to the construction of approvals granted under Pt 3A of the EPAA (at [357]-[358]):

1. the ordinary rules of construction and principles of interpretation apply to a development consent as with a statutory instrument (Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 at [97]-[99]). As discussed in SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 367 ALR 206 (at [20], citations omitted):

20. The starting point for ascertainment of the meaning of a statutory provision is, of course, the text of the provision considered in light of its context and purpose. Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies. The majority of the Court of Appeal held that there was no reason to restrict s 10(1A)(b)(ii) to incapacity for work outside the police force caused by the member having been hurt on duty when a member of the police force. But, with respect, there are in fact a number of textual and contextual indications in ss 7, 10(1A)(b)(ii), 10(1A)(c) and 10B that the operation of s 10(1A)(b)(ii) is so limited.

2. a consent is to be construed according to its terms, having regard to its enduring nature. A consent has an enduring nature because it is not personal to the proponent but is a public document operating in rem for the benefit of third parties such as subsequent owners, occupiers and security holders, and in some respects is equivalent to a document of title (House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at [23]; Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 at [4] and Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277; (1970) 19 LGRA 321 at 324). The enduring nature of a consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money acting upon it and who is likely to wish to sell the land at some point in time (House of Peace at [41]);

3. a consent must be read as a whole. The effect of doing so may be to depart from the material and ordinary meaning of the words of a provision where it is necessary to do so to avoid absurdity or inconsistency with the rest of the instrument (Tempe Recreation (D.500215 and D.1000502) Reserve Trust v Sydney Water Corporation [2014] NSWCA 437at [53]–[54]);

4. the mere approval of a development application does not necessarily have the effect of incorporating everything stated in the application, such as assertions of intention (Royal Ryde Homes at 323);

5. the consent is to be construed not as a document drafted with legal expertise, but to achieve practical results (Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 at [36] and Ko-veda Holiday Park Estate at [96]–[99] and [105]);

6. as a general rule a consent should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it. That extrinsic evidence is not led to vary the consent but to identify a thing or place referred to in it. Evidence as to the nature or physical features of the land may also be admissible for that purpose (those features observable by a third party at the time of the consent) (Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 at [44] and Parramatta City Council v Shell Co of Australia [1972] 2 NSWLR 632 at 637);

7. plans and other documents may be incorporated into a development consent expressly or by necessary implication (Allandale at [24], [43]-[48] and [153]-[163]). A document attached to a development consent or referred to in it for the purpose of identifying or describing something dealt with in the consent, will for that reason be expressly incorporated in the consent (Allandale at [45]);

8. the nature and extent of the approved development must be determined by construing the document of approval, including any plans or other documents which it incorporates, aided only by evidence admissible in relation to the construction which establishes, or assists to establish, the true meaning of the document as the unilateral act of the relevant authority; not the result of a bilateral transaction between the applicant and the council. Evidence of the nature of the site is therefore generally admissible for this purpose, as is, in appropriate cases, evidence as to the meaning of the marks on plans, or indeed, the meaning of the absence of particular marks (Shell Co of Australia Ltd at 637);

9. communications between the parties do not form part of the matrix relevant to the construction of a consent (Westfield Management at[41]);

10. a consent that requires development to proceed “generally in accordance with” approved plans, allows for some latitude and deviation from the approved plans of a relatively minor nature (Oshlack v Irongates Pty Ltd (1997) 130 LGERA 189 at 196-197; Wingecarribee Council v CSR Limited (unreported, Land and Environment Court of NSW, no 40100 of 1993, Stein J, 11 November (1993) at 7; Katoomba Gospel Trust v Blue Mountains City Council [1994] NSWLEC 107 per Talbot J and Grace Bros at 406). However, the question of whether a development is “generally in accordance” with approved plans is one of fact and degree in the context of the overall development (Oshlack at 196 and Wingecarribee at [7]); and

11. the conditions attached to a project approval must be construed having regard to the desirable inherent flexibility that the statutory scheme in Pt 3A of EPAA promotes (Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396 at [23] per Jagot J; Ulan Coal Mines Ltd v Minister for Planning (2008) 160 LGERA 20 at [80] per Preston J and Pittwater Council v Minister for Planning (2011) 184 LGERA 419 at [48] per Pain J). The scale of the projects subject to approval under Pt 3A, which are often complex, extensive and multi-stage projects, make the retention of such flexibility appropriate and inevitable (Ulan Coal Mines at [80] per Preston J).

93. Leda submitted that there was a further relevant principle of construction given the criminal character of the proceedings, namely, that any ambiguity or uncertainty in a condition of consent should be construed against the Secretary (as the prosecuting authority) (citing Ko-veda Holiday Park Estate at [95] citing Royal Ryde Homes at 297 and 324).

94. It is somewhat trite to note that development consents should be framed in clear terms and relevant conditions are to be specified with certainty (The Owners - Strata Plan No 4983 v Canny [2018] NSWCA 275 at [71] per Payne JA). This is particularly the case with respect to conditions of an approval granted under Pt 3A of the EPAA where persons who carry out development works under those conditions may be exposed to criminal liability if they are breached. Leda contended, that not unlike the construction of a criminal statute, the interpretation of a condition in Pt 3A of a project approval is informed by the canon of construction that any ambiguity or doubt contained in the condition must be resolved in favour of the accused (citing Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 at 576; Waugh v Kippen [1986] HCA 12; (1986) 160 CLR 156 at 164; Director General, Department of Land and Water Conservation v Bailey [2003] NSWCCA 361; (2003) 136 LGERA 242 at [24]-[25] and Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114; (2013) 298 ALR 532 at [111]).

263. It is therefore not correct to submit, as Leda did, that the Secretary failed to grapple with this, and other, existing consents with respect to bulk earthwork activities across the site.

The Bulk Earthworks Carried Out on the Site Were Carried Out Under the Project Approval

266. The proposition put by the Secretary that the relevant bulk earthworks carried out on the site from 2013 to 2017 were carried out for the purpose of the Project Approval (and not some other existing or historic consent) was consistent with Mr Shaw’s written evidence, especially with the works that he observed in Precincts 1, 2, 9 and 11, the COS and SSPP, during his site inspections and the work undertaken by him in issuing CC 107.

267. It is also consistent with the absence of any other consent with an extant CC relevantly applying permitting the carrying out of the same bulk earthworks in the same areas. In addition, documentary evidence exists demonstrating that Leda intended to, and actually did, implement the Project Approval on the site from the beginning of 2013 to the end of the second charge period.

268. In February 2013 Leda applied for MOD1 for the specific purpose of borrowing fill from Precincts 1 and 2 for use in the COS. The 2013 SMEC EAR which accompanied the application stated that the borrowing of fill from Precincts 1 and 2 for use in the COS had commenced before the modification was sought. Similarly, Leda applied for MOD2 in April 2014 in circumstances where Leda had already commenced using fill from Precinct 9 in the COS.

269. Leda’s express intention of using fill from these precincts for the purpose of implementing modifications to the Project Approval is consistent with the exposed disturbed areas in Precincts 1, 2, 9 and 11 having been occasioned as a consequence of implementing the Project Approval.

270. Another relevant document is the Phasing Plan which was provided to the DPE in support of the application to increase the permitted disturbed area to 5 ha on 12 June 2013. The Phasing Plan showed fill being taken from four cut areas in Precincts 1 and 2 to implement Stages 4 and 5, in the northernmost part the COS. Leda admitted in correspondence with the DPE in February 2016 that there was “excavation in borrow areas within Precincts 1 & 2 with this fill being transported in the Central Open Space”.

271. As stated earlier, the existence of historic and operative consents, and the bulk earthworks performed under those consents, was brought to the attention of Mr McLachlan by Leda’s employees and contractors during interviews that he carried out as part of his investigation (T161.18–161.28 and 161.38–161.44) (see the records of interview of Mr Hughes, Mr Shaw – especially at Q257 and 270, Mr Van Rij and Mr Yeats). For example, Mr Scotcher said (at Q109–113, 129, 130 and 266–270):

Q    --- that’s present in the room. I’m going to ask you some specific questions more around condition 21A.

A   Mm mm.

Q   What approvals were Leda working under in relation to bulk earthworks in precincts 1, 2, 9 and 11?

A   So, there’s the project approval which flowed on from the concept approval and then there were CCs issued by Mike Shaw under those project approvals.

Q   Are there any other approvals that Leda has worked under for precincts 1, 2, 9 and 11?

A   Yes.

Q   What are those approvals?

A   Off the top of my head, I couldn’t rattle off the numbers, but there are a number of live CCs across the estate, like historical ones, that we’re allowed to do earthworks under. So, for example, precinct 10, we’re doing some filling down there. The borrow pit was up on precinct 9 there on the – is it the western edge of the environmental area there. So, (indistinct) material out of there and placing it onto precinct 10 under one of the CCs – again, a historical one. I can’t rattle off the number off the top of my head.

Q   No worries. Are there any other areas where there’s historical CCs in relation to 1, 2, 9 and 11?

A   They’re across the estate. They are literally everywhere. We actually got a plan that shows where all our CCs are and they’re all outlined and coloured and everything, that our surveyor did for us and it pretty much covers almost the whole estate. There are very small gaps where there aren’t any CCs, but – yeah, as I said, most of those historical CCs cover the entire estate.

…

Q   That's fine. In relation to Cobaki Estate, how much area do you believe was exposed at any one period of time?

A   Well, again, we've got multiple CCs across the whole site and those CCs are valid and ongoing, so – I know that we're limited to 5 hectares under the project approval, but then those CCs outside of that project approval allows to - to carry out works lawfully.

Q   So, the question was, how much area do you believe was exposed in any one period of time at Cobaki Estate?

A   I don't know. It was probably – I think it would be more than the 5 hectares of the project approval, but that, as I said, doesn't account for the CCs that we're allowed to operate under.

…

Q   Have you ever had any discussions about the condition [condition 21A b.] and compliance with it?

A   Yes.

Q   Who were those discussions with?

A   Internally, with Brandon and Reg.

Q   And what were the - specifically, what were the discussions about?

A   That we are limited to 5 hectares within our project approval, but our CCs across the site allow us to open up those other areas, so therefore if you look at an aerial map like this, the area of the site will have probably greater than the 5 hectares exposed, but it doesn't mean those areas aren't allowed to be open under our CCs.

MS O’REILLY

Q   Whose interpretation of that condition was that?

A   That was just a discussion we had. We hadn’t sought any legal advice, that was our discussion we had internally.

Q.    Between the three of you, Brandon, Reg and yourself?

A   Yeah, I believe so.

272. However this is not the end of the matter. As quoted above, Mr Yeats admitted to Mr McLachlan during a site visit on 21 July 2015, that the purpose of works being carried out in Precincts 1 and 2 observed by Mr McLachlan was to “borrow material for the Central Open Space”. The conversation is significant because it is consistent with the proposition that, although Precincts 1 and 2 were disturbed prior to the grant of the Project Approval, that is, during the carrying out of works under pre-existing consents, they were redisturbed by reason of those precincts being used as borrow pits for the purpose of constructing the COS. This is what was sought and granted under MOD1, and was the subject of an application for, and issue of, CC 107. Put another way, the works Mr McLachlan observed, as confirmed by Mr Yeats, were bulk earthworks being carried out under the Project Approval, as distinct from works being carried out to get to finished levels for the subdivision in those precincts (authorised by DA 10/0800) or some other historical consent. That Precincts 9 and 11 were also being used as borrow pits at the time of the inspection (see Mr Shaw’s email report dated 7 August 2015 of his inspection of the day before) does not matter.

273. In addition, as referred to above, Mr Shaw’s evidence is consistent with the conclusion that the activity that was occurring in the relevant precinct borrow areas from at least August 2013, was as a result of carrying out the Project Approval. As stated in his affidavit, Mr Shaw was engaged by Leda in approximately July or August 2012 for the purpose of issuing CCs and to act as PCA for the Project Approval. During his inspections from February 2014 to 29 April 2016, he observed fill being transported from Precincts 1, 9 and 11 to the COS and the SSPP.

274. According to his record of interview, Mr Hughes (a civil manager employed by Ecovale Pty Ltd (“Ecovale”) as a contractor to carry out bulk and civil earthworks for Leda at Cobaki Estate) has worked as a site foreman since 2004. When Mr McLachlan asked him about the purpose of earthworks in Precincts 1 and 2, Mr Hughes replied that, “the filling was taken from here into here [within Precinct 1] and this was built up”. When asked whether fill from Precinct 1 had gone anywhere else, he said “no, because I believe they’re short of fill”. When asked for further clarification, he said (see his record of interview at Q223 and 224):

Q   So, in relation to those orange polygons, has any material gone from those areas    anywhere else?

A   No – no, because I believe they’re short of fill.

Q   Sorry, what do you mean by that?

A   Well, I – I believe that there was an excess of fill here – because there’s been so many levels and different things happen, I can’t keep up myself. So, there was no fill taken out of this area to anywhere else, to my knowledge – unless it happened on the site when I wasn’t there. Now, it – I know that the fill went from here to here because we had to do some – a lot more cutting here because the levels were changed again and they lowered the levels. …

275. Mr McLachlan then asked if fill had been moved from Precincts 1 and 2 into the COS. Mr Hughes agreed that some material had been transported there, but stated that this had occurred “way before ‘13”.

276. Mr Hughes’s evidence that no fill was taken out of Precincts 1 and 2 to anywhere else on the site appears to support the proposition put by Leda that works within those precincts were being undertaken pursuant to a historic consent (which involved permissible cut and fill within those precincts) as distinct from the Project Approval (which involved the extraction of fill from those precincts and the movement of it within the COS). But Mr Hughes’s evidence was equivocal. Only limited reliance can be placed upon it insofar as he later qualified his testimony by saying that he could not recall what had occurred (Q255):

Q.    Approximately, when did that material go to that area?

A.   That’s what I’ve been trying to work out. I – without trying to look up records when – when we actually done the central open space here, what year, I can honestly say I don’t remember. I’d have to look up records.

277. Mr Rose, an earthworks supervisor for CD Excavations, worked on the Cobaki Estate from January 2014 to June 2016. During his period of employment he was on the site every day. He gave evidence to the effect that the movement of fill was from Precinct 1 to Precinct 2, but none was from Precincts 1 or 2 into the COS. He also said that (Q97):

Q   What was the purpose of the material that was removed? So, the material has been cut or borrowed, what was the purpose of that?

A   The purpose was – from P11, we needed rock to fill the central open space to get up above the water, so we used the rock through from P11 into central open space. P9 was the – obviously, the clay fill to bring it up to level above the rock. School site was – obviously we had to preload down there, so the material come from P9 into the school site. And P1 to P2, I was instructed that any excess to go from P1 to put it to P2.

278. Notwithstanding Leda’s submission that Mr Rose’s evidence was consistent with Dr Martens’s evidence, evidence of Mr Hughes and Mr Rose, together with the documentary evidence, including the modification applications and Mr Shaw’s site inspections, indicates that what was occurring was that fill was taken from Precinct 1 or 2 for use in the northern part of the COS between 15 June and 5 October 2013, but by the time Mr Rose commenced work in January 2014 all movement of fill from Precincts 1 and 2 into the COS had ceased. Mr Watts’s analysis of the aerial photographs showed extensive new disturbance in both of these areas during this period. There is no other area from which fill could have been sourced, with the exception of a very small area in Precinct 11. After that date, Precincts 9 and 11 were extensively worked, providing a new source of fill for the new areas further south in the COS. While these factual findings appear to be inconsistent with Mr Hughes statement that any filling from Precincts 1 and 2 to the COS occurred “way before ‘13”, he later qualified this evidence by indicating that he could not remember when this had occurred.

279. Mr McLachlan also observed new works being carried out on the Cobaki Estate from his first visit to the site on 2 July 2015. As noted above, he saw in Precinct 9 (on 2 July 2015 and 27 April 2016), Precinct 11 (on 2 July 2015), the Wallum Froglet area (on 2 November 2015), Precincts 1 and 2 (on 23 February 2016 and 30 March 2016), evidence of fresh dozer and tyre tracks which indicated to him that these areas had been worked in the weeks preceding his site visit. On some visits he saw earthworks in progress in the borrow pits, including earth being loaded onto an earthmoving truck in Precinct 9, and earthmoving trucks carting soil from Precinct 9 towards the SSPP. Importantly, with the exception of CC 107A, which was granted under the Project Approval, there was no other CC authorised filling works in the SSPP during the relevant charge periods. The SSPP did not fall within the area of any of the historic CCs identified by Dr Martens on the aerial photograph of the site attached to his affidavit dated 22 June 2018.

280. It is beside the point to submit, as Leda did, that no concession has been made by it (or anyone on its behalf) that the historic consents were either complete or exhausted. It must be accepted that these consents were preserved, in the sense that they were not surrendered, under the Concept Approval and Project Approval. That there is evidence indicating that bulk earthworks occurring in precincts subject to an extant consent does not, however, matter. Because, in my opinion, the Secretary is able to prove beyond reasonable doubt that the bulk earthworks were undertaken in furtherance of the Project Approval, then any exposed disturbed area created as a result of those earthworks was required to comply with condition 21A b.

281. This conclusion is consistent with the content of the Mills Oakley letter dated 19 April 2017. Put another way, the admission made in that letter is inconsistent with the contention by Leda that the impugned bulk earthworks were carried out lawfully under some other approval than the Project Approval. While the admission is not contemporaneous with the charge periods for the first and second summons, and moreover, it was made, in part, with respect to another related charge to which Leda has pleaded guilty, it cannot, as Leda asserted, be ignored. While not determinative, it has nevertheless been taken into account and accorded some weight.

282. Finally, and in any event, there were no historic or existing consents authorising an exposed disturbed area in excess of the limit prescribed by condition 21a b. of the Project Approval with respect to any of the bulk earthworks relevantly carried out in the COS.

Leda Exceeded the 5.59 ha Limit and is Guilty as Charged in the First and Second Summons

283. It is only if the Court were prepared to, first, disregard areas of fill from “the site” as defined above, and second, if the Court were prepared to excise from the areas of cut those areas which Leda attributes to pre-existing consents, that Leda can be exonerated. A finding in Leda’s favour of either, proposition will be insufficient having regard to the proper construction of condition 21A b. and evidence before the Court.

284. Even if the Court were to accept Dr Martens’s methodology of excluding areas the subject of prior CCs (which it does not for the reasons given earlier), there was nevertheless a breach of condition 21A b. on his own calculations if, as must occur, both cut and fill areas are to be included. Thus excluding the bulk earthworks the subject of pre-existing consents, the combined cut and fill area as at the date of each aerial photo analysed by Dr Martens was:

1. as at 21 April 2014, 29.2 ha;

2. as at 25 June 2014, 31.8 ha;

3. as at 6 October 2014, 33 ha;

4. as at 9 April 2015, 30.4 ha;

5. as at 18 May 2016, 24.2 ha; and

6. as at either 24 February or 7 March 2017 (although Dr Martens and Mr Watts analysed the same image, its precise date was uncertain), 21.9 ha.

285. On any view, therefore, the 5.59 ha limit prescribed by condition 21A b. was exceeded during the charge periods resulting breach.

286. However, for the reasons given earlier in this judgment, the Court does not accept that it was correct to exclude the areas covered by the prior consents issued in respect of bulk earthworks carried out in Precincts 1, 2, 9 and 11, in the SSPP or COS. This is because, notwithstanding a coincidence of approvals, the works were not carried out in furtherance of the historic consents, but pursuant to the Project Approval.

287. According to the evidence contained in the second Watts affidavit, the total area of the COS, SSPP and Precincts 1,2,9 and 11 exposed and disturbed since 21 June 2013 (that is, from when bulk earthworks were approved under the Project Approval and after Mr Shaw had issued CC 107) was:

1. as at 21 April 2014, 63.91 ha;

2. as at 25 June 2014, 65.65 ha;

3. as at 6 October 2014, 85 ha;

4. as at 9 April 2015, 71.42 ha;

5. as at 18 May 2016, 68.27 ha; and

6. as at either 24 February or 7 March 2017, 62.59 ha.

288. Even erring on the side of caution by accepting Dr Martens’s calculations for the total active cut and fill works across the site, the combined exposed disturbed area for the purpose of condition 21a b. was:

1. as at 21 April 2014, 47.6 ha;

2. as at 25 June 2014, 52.6 ha;

3. as at 6 October 2014, 55.4 ha;

4. as at 9 April 2015, 54 ha;

5. as at 18 May 2016, 46.9 ha; and

6. as at either 24 February or 7 March 2017, 40.3 ha.

289. These all comfortably exceed the permissible 5.59 ha limit in condition 21A b.

290. There is, therefore, no doubt therefore, that Leda is guilty as charged in the first and second summons.

Condition 41 of the Project Approval

291. In the third summons, the Secretary alleges that Leda has failed to comply with condition 41 of the Project Approval insofar as bulk earthworks in the nature of excavation and removal of an earthen mound and associated works were undertaken outside the areas approved by that condition.

292. The evidence of Mr McLachlan was that there was a mound of earth approximately two metres high covered with vegetation located to the east of Cobaki Parkway, near the northern intersection of Cobaki Parkway and Sandy Lane. The earthen mound was not located in the COS as defined in the Project Approval, nor was it located in any of Precincts 1, 2, 9 and 11, being areas identified as those in which the winning of fill was permitted under condition 41.

293. Rather, the earthen mound was located in an area identified by him as Wallum Froglet forage habitat in the Cobaki Estate Environmental Assessment Report Southern Special Purpose Precinct (SSPP) Bulk Earthworks dated July 2014.

294. The Secretary alleges that between 1 September 2015 and 2 November 2015, earth from this mound was moved in bulk earthworks operations to the SSPP or COS in contravention of condition 41 of the Project Approval.

The Meaning of “Bulk Earthworks” for the Purpose of Condition 41

295. Leda argued that condition 41 did not apply to the movement of topsoil for finishing purposes because this did not fall within the concept of “bulk earthworks” contained in that condition. It relied on Dr Martens’s evidence that the existence of the “earthen mound” was not consistent with “bulk earthworks” because it could not be equated with “larger scale ‘bulk’ earth forming activities required to undertake the land development”.

296. In Dr Martens’s unchallenged opinion the earthen mound was a “pre-existing temporary stockpile”. Its removal constituted no more than a “return to pre-stockpile natural ground levels, as part of outstanding works under construction certificate CC10/0717” (dealing with the construction of Cobaki Road). Accordingly, the works “did not form part of the final design landform” and the removal of the mound formed part of the works carried out under that CC.

297. Leda submitted that Dr Martens’s evidence was consistent with that of several witnesses. First, Mr Shaw's characterisation of the earthen mound was not as fill but as a “stockpile” of “topsoil being used for environmental purposes, i.e. stabilising the work areas”. As he stated in his record of interview dated 5 September 2016 (Q146-153):

Q    Are you aware of any approval that allows that stockpile? You've drawn an approximate location.

A   Yeah.

Q    That it would allow that stockpile to be removed?

A   I - no, but I didn't see that as a major issue. I did know that, you know, they were doing that when we came outside. That was a stockpile where topsoil was being reused to stabilise other parts of the site. Certainly it's not within the boundaries of you know where they're permitted to do bulk earthworks, but to me that was - it was a stockpile that was there from previous works. So it's topsoil that's been located on private property in an area outside of the central open space. And my understanding was that that topsoil was being reused for the purpose of stabilisation of areas within the central open space. It was quite obvious that it was a stockpile. It wasn't virgin material. It was all topsoil sitting in a big mound. I'm aware that there's a number of topsoil stockpiles throughout the site of a similar nature. Some other areas that they reused topsoil as well.

Q   Can you mark those areas in pink on MS2 please?

A   Ah I think there was an area over here that was a topsoil stockpile. Yeah, probably the only two that are jumping out at me right now.

Q    Can you mark in pink as well with an arrow where the material from those two stockpiles went?

A   I would not know. I would not know, no. All I was – I was made aware by Leda that the material was being reused to stabilise areas within the central open space, so the approved areas of central open space topsoil. So it was excess topsoil that was stockpiled off site on private land that was being reused to stabilise the exposed surfaces in the central open space.

Q   I’m going to introduce document entitled “Cobaki Estate Central Open Space Project Approval 08_0200 consolidated approval for information”.

A   Mm mm.

Q    Title it MS8 and sign and date the top. Can you please do the same? Can you please – I’m going to direct you to page 25. I’ll label the top MS9 and sign and date. Would you please do the same?

A    Yep.

Q   Can you read condition 41c. please?

A   41C, “Notwithstanding A and B above, fill material required for the central open space area sourced from elsewhere on/off the site requires separate development approval unless otherwise approved by the Director General”.

Q   What’s your understanding of that condition?

A   If entered in fill material was required then – and it was outside of the central open space or the approved mod areas that it would need a separate approval. This is different. This is topsoil, it’s not fill. So it’s topsoil being used for environmental purposes, i.e. stabilising the work areas. So I wouldn’t classify that as fill.

298. Second, when questioned on site by Mr McLachlan on 2 November 2015, Mr Yeats said that the earthen mound was a topsoil stockpile and that it had been used for the topsoiling of the COS. He identified the earthen mound as a possible topsoil stockpile during his interview with Mr McLachlan on 6 September 2016 (Q232).

299. Mr Yeats stated that the topsoil stockpile was not “bulk earthworks” because topsoil was not, in his opinion, structural fill. Instead, the topsoil “was placed, as a final layer, to stabilise finished earthworks”, however, if moved, it could be “exposed" (Q263-270):

Q   Okay. Are you aware where the area that I marked in black on BY10, where that material was used?

A   Not in particular. I would imagine that material, being topsoil, was used potentially for either the temporary preload of the missing link, an SSPP or and for stabilisation of the exposed areas within the central open space.

That's what I would think, but I cannot confirm any of that.

Q   Okay. In your opinion, would you say that is bulk earthworks?

A    Topsoil.

Q   Undertaking a removal of vegetation or - - -

A   No, that’s – that is - in my opinion, as an engineer, topsoil not structural fill. Topsoil is placed, as a final layer to stabilise finished earthworks.

Q   Okay, so would you say it would be exposed though, once - if it was a topsoil stockpile - am I correct in saying it's a topsoil stockpile?

A   From my understanding, it's topsoil.

Q   So if it was taken - - -

A   Away?

Q   - - - away or moved - - -

A   What is left there

Q   - - - would it be exposed?

A   It would be topsoil that's left there

Q   So is that an exposed area?

A   It depends whether it's been seeded or not or there's a vegetation strike on that. And topsoil is your first - obviously your first port of call with respect to stabilising finished earthworks areas, you need your topsoil down and then you either seed or allow things to naturally vegetate, depending on the risk and the requirements, yeah.

300. Third, Mr Scotcher, the Development Manager for Leda, identified the earthen mound as a stockpile of topsoil that was to be used in part as preload over marine clays in the SSPP. According to Mr Scotcher, the works were in the nature of placing topsoil, and not fill (Q242-244):

Q   Okay. If the material did go to the SSPP as preload, would that be authorised – from your understanding of DS1 to 4, the approval documentation, would that be authorised under the approval?

A   Well, it’s a stockpile of – we’re not placing fill, so it’s a stockpile of topsoil to go over the top, which would be removed down the track. So, its not actually placing a fill, it’s – it’s preload to – for those – for that fill that had been placed to consolidate over those marine clays down there.

Q    So, to bring you back to the question of your understanding of DS1 to 4, the approval documentation, would that be permitted?

A   I don’t see why it wouldn’t be permitted.

Q   Okay. Are you aware of any specific condition within the documentation that does permit it?

A   No, I’m not, but I’m also not aware of one that excludes us from doing it. Because as I said, it’s not placing fill, it’s placing topsoil. Subtle difference.

301. Likewise, Mr Shaw stated in his record of interview that (Q146-153):

Q   Are you aware of any approval that allows that stockpile? You've drawn an approximate location.

A    Yeah

Q   That it would allow that stockpile to be removed?

A   I - no, but I didn't see that as a major issue. I did know that, you know, they were doing that when we came on site. That was a stockpile where topsoil was being reused to stabilise other parts of the site. Certainly it's not within the boundaries of you know where they're permitted to do bulk earthworks, but to me that was - it was a stockpile that was there from previous works. So it's topsoil that's been located on private property in an area outside of the central open space. And my understanding was that that topsoil was being reused for the purpose of stabilisation of areas within the central open space. It was quite obvious that it was a stockpile. It wasn't virgin material. It was all topsoil sitting in a big mound. I'm aware that there's a number of topsoil stockpiles throughout the site of a similar nature. Some other areas that they reused topsoil as well.

Q   Can you mark those areas in pink on MS2 please?

A    I think there was an area over here that was a topsoil stockpile. Yeah, probably the only two that are jumping out at me right now.

Q   Can you mark in pink as well with an arrow where the material from those two stockpiles went?

A   I would not know. I would not know, no. All I was -1 was made aware by Leda that that material was being reused to stabilise areas within the central open space, so the approved areas of central open space topsoil. So it was excess topsoil that was stockpiled off site on private land that was being reused to stabilise the exposed surfaces in the central open space.

Q   I'm going to introduce document entitled "Cobaki Estate Central Open Space Project Approval 08_0200 consolidated approval for information".

A    Mm mm.

Q    Title it MS8 and sign and date the top. Can you please do the same? Can you please - I'm going to direct you to page 25. I'll label the top MS9 and sign and date. Would you please do the same?

A   Yep.

Q   Can you read Condition 41c. please

A    41c. Notwithstanding A and B above, fill material required for the central 'open space    area sourced from elsewhere on/off the site requires separate development    approval unless otherwise approved by the Director General".

Q   What's your understanding of that condition?

A   If entered in fill material was required then - and it was outside of the central open space or the approved mod areas that it would need a separate approval. This is different. This is topsoil, it's not fill. So it's topsoil being used for environmental purpose, i.e. stabilising the work areas. So I wouldn't classify _ that as fill.

302. Leda further submitted that to the extent that the stockpile existed and was later removed, this was an activity that was carried out under a pre-existing development consent.

303. Consistent with condition 21A b, condition 41 must be read in context and as a whole. In doing so, it becomes apparent that the condition is concerned with the process of filling the COS and SSPP, and extracting fill from certain areas for this purpose.

304. As discussed above in relation to condition 21A b, the term “bulk earthworks” involves the movement of large quantities of earth in the course of cutting and filling. This includes both earth which is moved to create subsoil layers and earth which is moved to create the topsoil layer of a filled area. On this basis, it includes the earthen mound to the extent that it was a stockpile of topsoil. Having regard to the proper construction of the term “bulk earthworks”, I do not accept Dr Martens’s opinion that “temporary stockpiles” do not form part of the bulk earthworks on the site because they do not form part of the final design landform.

305. Dr Martens’s evidence was contradicted by Mr Macleod’s evidence (which is to be preferred), namely, that bulk earthworks in the construction industry are understood to include “stockpiling large quantities of soil or rock material”.

306. In any event, even if Dr Martens is correct in asserting that stockpiles do not constitute “bulk earthworks” because they do not form part of the final contours of the site, the activity of excavating topsoil from a stockpile and moving it to a final destination plainly constitutes bulk earthworks because it is an activity which contributes to the finished level in a filled area. The action of excavating earth, topsoil or otherwise, from a stockpile is therefore an activity forming part of “bulk earthworks” for the purpose of condition 41.

307. Even if the Court were to accept Dr Martens’s evidence that “bulk earthworks” do not include the creation and excavation of a temporary stockpiles, this qualification does not assist Leda because the earthen mound was not a stockpile created during the Project Approval. Rather, the earthen mound was a stockpile created approximately 10 years ago under a different consent which had long since naturally revegetated, thereby becoming part of the existing landscape surrounding the Project Approval area.

308. Having regard to the proper construction of condition 41 referred to above, the Secretary must, therefore prove to the requisite standard that the material comprising the earthen mound was taken from outside the approved Project Approval area as specified and was used in the SSPP or COS during the course of implementing the Project Approval. As the evidence demonstrates beyond reasonable doubt this is in fact what occurred.

Leda Has Breached Condition 41 of the Project Approval

309. On 2 November 2015 Mr McLachlan observed that the earthen mound had been removed leaving behind two exposed disturbed areas to the east of Cobaki Parkway.

310. On 23 November 2015 Mr McLachlan caused the boundaries of this disturbed area to be mapped using GPS coordinates. The map shows two areas of disturbance, one approximately 1.2 ha in size and the other about 0.5 ha in size, which, irrespective of any erroneous proposition to the contrary by Mr McLachlan in his oral evidence, are areas that are outside the COS approved bulk earthworks under the Project Approval.

311. A reduction in the amount of dark green vegetation can be seen in the same location in the aerial photographs annexed to the first Watts affidavit. That the disturbed area is not bare earth in a later photograph taken by Mr Watts can be explained by the fact that the latter photograph was taken five months after the mound was excavated, providing sufficient time for vegetation regrowth. Even allowing for some imprecision in mapping, it is beyond reasonable doubt that these works were outside the approved work areas under condition 41. The closest work area authorised under the Project Approval was the “minor open drain 5/fauna corridor” within the COS running in an east-west direction and terminating on the western side of Cobaki Parkway. The removal of the earthen mound occurred to the north of this entirely on the eastern side of Cobaki Parkway.

312. In his record of interview Mr Yeats speculated that the earth had been previously stockpiled in order to be used later but that he was unaware if there were any approvals in operation permitting the removal of the mound (Q238):

Q    So in your opinion, based on those two maps that I’ve presented, are you aware of any approvals that would allow you to operate within that area that identified on BY10?

A   I’m just not certain where it sits in relation to plan BY11. I could only imagine that that material was stockpiled under previous earthworks activities, under a construction certificate with the intent that it’s a temporary stockpile to be reused later on. Other than that, I cannot comment and I’m uncertain what you’re aiming at here.

313. Later, however, he said that he had no direct knowledge of how or where the material that was removed from the mound was used (Q263):

A    I would imagine that material, being topsoil, was used potentially for either the temporary preload of the missing link, an SSPP or and for stabilisation of the exposed areas within the central open space. That’s what I would think, but I cannot confirm any of that.

314. Mr Scotcher expressed similar sentiments in his record of interview (Q231–244).

315. Mr Van Rij, employed by Leda Management Services, a company who hired people to work the Leda group of companies, and who worked on the project, said no discussions had taken place about the works that had occurred in the SSPP (Q278):

A    No. Oh, there was - there was discussion a little while ago about using that material for preloading of - of the what we call the SSPP, and I think - I know where the material - there's material stockpiled there. I'm not sure where it came from, it might've come from - a considerable amount of topsoil came out of the central open space, you can imagine, being a low lying swampy area, a lot of topsoil of value had accumulated there. That had to be removed, because the filling requires it for a geotechnical reason…. So it may have come from the central open space, where it went to, it might have gone back to the central open space, not as structural fill but as topsoil and/or it might have gone to preloading of the - of the SSPP. I'm not sure. Those are matters that Dennis can answer.

316. Mr Hughes and Mr Rose, however, were certain that the material had been used in the SSPP. Mr Rose said in his record of interview that he had moved soil from this stockpile to the “school site” at the direction of Mr Hughes (Q216-220). The “school site” was a former name for the SSPP. Mr Hughes said that the soil was moved to the SSPP about 12 months before the date of his interview on 15 September 2016, that is, around September 2015 (Q316-331 of his record of interview). Mr Hughes said that the earthen mound was a mound of topsoil which was created in connection with roadworks in around 2006 (Q318 and 324). That is, prior to the grant of the Project Approval.

317. Mr Hughes’s and Mr Rose’s accounts are reliable because they were the people directly involved in the movement of fill on the site. By contrast, although Mr Van Rij and Mr Yeats posit an alternative explanation, namely, that the earthen mound may have been used for topsoiling in the COS, they did not have direct knowledge of these facts. I therefore prefer the evidence of Mr Hughes and Mr Rose, which was consistent with that of Mr Scotcher. Their evidence permits a finding that the topsoil was used for a structural purpose, namely, as preload in the SSPP, and not, as Leda submitted, for the purpose of topsoiling as a precursor to revegetation. In this regard, their evidence is consistent with Mr Van Rij’s evidence about using the material for preload. In other words, the fill was moved for an engineering purpose and not for the purpose of mere topsoiling and rehabilitation. In so doing, condition 41 was breached.

318. Finally, although Leda’s submission that condition 41 did not apply to the movement of the earthen mound because it was an activity derived from a pre-existing development consent was, strictly speaking, factually correct, as the evidence above demonstrates, notwithstanding that the stockpile was created during the course of implementing another consent, its removal and placement in the SSPP was clearly a “bulk earthwork” activity related to the implementation of the Project Approval, and therefore, subject to, and in contravention of condition 41 (see the reasons explained earlier in this judgment).

Conclusion and Orders

319. For the reasons given above, the Court finds Leda guilty as charged in respect of the first, second and third summonses.

320. The orders of the Court are therefore that:

1. in matter no 186631 of 2017 the defendant is guilty as charged;

2. in matter no 186632 of 2017 the defendant is guilty as charged;

3. in matter no 186634 of 2017 the defendant is guilty as charged;

4. all three proceedings are stood over to the List Judge on 3 May 2019 for further directions with respect to sentencing; and

5. the exhibits are to be returned.

**********

Amendments

12 June 2019 - The following paragraphs have been amended pursuant to Rule 36.17 of the Uniform Civil Procedure Rules 2005 (“the Slip Rule”) on 12 June 2019:

(a) [238], the words “prefer the evidence of Mr Martens” are replaced with “prefer the evidence of Mr Watts”; and

(b) [284], the words “which it does” are replaced with “which it does not”.

Decision last updated: 12 June 2019