Sutherland Shire Council v Benedict Industries Pty Ltd (No 8)

[2017] NSWLEC 4

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4

Hearing dates:

19, 20, 23, 24, 25, 26, 27, 30 November, 1, 2, 3, 4, 7, 8, 9, 10, 11, 15, 16, 17, 18 December 2015 and 10, 11, 14 and 15 March 2016

Date of orders:

24 January 2017

Decision date:

24 January 2017

Jurisdiction:

Class 5

Before:

Pepper J

Decision:

All charges dismissed.

Catchwords:

ENVIRONMENTAL OFFENCES: whether construction of a bund was prohibited development – whether the construction of a bund was development permissible with consent – purpose of construction of bund – whether bund constructed to dispose of waste – whether construction of bund ancillary to lawful quarrying activity – whether there was development consent granted by the council or some other regulatory authority to carry out extractive activity – charge dismissed.

 

ENVIRONMENTAL OFFENCES: whether trees and bushland vegetation injured contrary to a tree and bushland vegetation preservation order – whether injured vegetation was “bushland vegetation” for the purpose of the order – principles applicable to construction of subordinate legislation – injury of trees and bushland vegetation ancillary to construction of bund – charges dismissed.

 

DEVELOPMENT CONSENT: principles of construction of development consent – principles of characterisation of use of land – whether development constitutes ancillary development under planning instruments – inconsistency between planning instruments.

  EVIDENCE: application of presumption of regularity to infer existence of development consent – whether prosecutor’s expert evidence reliable and impartial.

Legislation Cited:

County of Cumberland Planning Scheme Ordinance, cls 4, 5,6, 23(1)(a) and (2), 26, 29, 32, 33(a), 41(2)

 

Crown Lands Act 1989, s 34A

 

Environmental Assessment and Planning Amendment Act 2008

 

Environmental Planning and Assessment Act 1979, ss 26, 36, 76A(1)(a), 76B, 76C, 100, 107, 109, 109B, 125, Sch 6, cls 5, 120

 

Environmental Planning and Assessment Regulation 2000, cl 264

 

Interim Development Order No 23 1991

 

Interim Development Order No 30 1976

 

Local Government Act 1919, ss 314(4), 342AA(2), 342AB(1) and (3), 342N(1), 342T(1), 342V, 530A

 

Local Government Act 1993, s 377(1)

 

Local Government (Amendment) Act 1951

 

Local Government (Town and Country Planning) Amendment Act 1945

 

Local Government (Town and Country Planning) Amendment Act 1962, cl 9

 

Miscellaneous Acts (Repeal and Amendment) Act 1979, cl 7 of Sch 2, cl 19(1)(a) of Sch 3

 

New South Wales Planning and Environment Commission Act 1974, s 18(1) and (2)(a)

 

Pittwater Tree Preservation and Management Order 1996, cls 3, 4

 

Protection of the Environment Operations Act 1997, s 50, 211(2)

 

State Planning Authority Act 1963, ss 26, 78

 

Sutherland Local Environmental Plan 1992

 

Sutherland Local Environmental Plan 1993

 

Sutherland Planning Scheme Ordinance 1980

 

Sutherland Shire Local Environmental Plan 2000, cls 5, 13, 17, 28, of Sch 4

 

Sutherland Shire Local Environmental Plan 2006, cls 4(c) and 7(2)(c)

 

Sutherland Shire Tree and Bushland Vegetation Preservation Order 2001, cls 1, 2, 4, 5, 7

 

Sydney Regional Environmental Plan No 9 – Extractive Industry (No 2 – 1995), cls 2, 4(1), 5, 7, 8, 19(1), Sch 1 and 2

  Town and Country Planning (General Interim Development) Ordinance 105, cls 3, 4, 7

Cases Cited:

Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107; (2011) 180 LGERA 343

 

Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75

 

Baiada v Waste Recycling and Processing Service of NSW [1999] NSWCA 139; (1999) 130 LGERA 52

 

Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404

 

Benedict Industries Pty Ltd v Sutherland Shire Council [2015] NSWCCA 272

 

Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147; (2013) 201 LGERA 116

 

Brickworks Ltd v Warringah Corporation (1963) 108 CLR 568

 

Calleja v Botany Bay City Council [2005] NSWCA 337; (2005) 142 LGERA 104

 

Certain Lloyd’s Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 379

 

Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400

 

Collector of Customs v Agfa – Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389

 

Commissioner of Taxation v Consolidated Media Holdings (ACN 009 071 167) Ltd [2012] HCA 55; (2012) 250 CLR 503

 

Community Association DP 270253 v Woollahra Municipal Council [2013] NSWLEC 184

 

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297

 

Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; (2006) 66 NSWLR 379

 

Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48; (2012) 188 LGERA 26

 

Director-General, Department of Planning and Infrastructure v Glass Recovery Services Pty Limited [2015] NSWLEC 49; (2015) LGERA 397

 

Dorrestijn v South Australian Planning Commission (1985) 59 ALJR 105

 

Egan v Hawkesbury City Council (1993) 79 LGERA 321

 

Environment Protection Authority v Anning (1998) 100 LGERA 354

 

Environment Protection Authority v N (1992) 26 NSWLR 352

 

Environment Protection Authority v Schon G Condon as liquidator for Orchid Holdings (NSW) Pty Ltd (in liq) [2014] NSWCA 149; (2014) 86 NSWLR 499

 

Environment Protection Authority v Terrace Earthmoving Pty Ltd [2013] NSWCCA 180; (2013) 84 NSWLR 679

 

Foodbarn Pty Limited v Solicitor-General (1975) 32 LGRA 157

 

Hastings Point Progress Association Inc v Tweed Shire Council [2009] NSWCA 285; (2009) 168 LGERA 99

 

Hill v Woollahra Municipal Council [2003] NSWCA 106; (2003) 127 LGERA 7

 

Jojeni Investments Pty Ltd v Mosman Municipal Council [2015] NSWCA 147; (2015) 208 LGERA 54

 

Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114

 

Liverpool City Council v Maller Holdings trading as Sydney Horse Transport [2014] NSWCCA 299

 

Liverpool City Council v Maller Holdings Pty Ltd [2013] NSWLEC 154; (2013) 211 LGERA 360

 

Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211

 

Macquarie International Health Clinic Pty Ltd v University of Sydney (1998) 98 LGERA 218

 

Master Education Services Pty Ltd v Ketchell [2008] HCA 38. (2008) 236 CLR 101

 

Newbury District Council v Secretary of State for the Environment [1981] AC 578

 

North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50

 

Pasminco Cockle Creek Smelter Pty Limited (subject to a Deed of Company Arrangement) v Lake Macquarie City Council [2016] NSWLEC 143

 

Pearse v Sharpe [2007] NSWLEC 710; (2007) 158 LGERA 21

 

Pearson v Leichhardt Municipal Council (1997) 93 LGERA 206

 

Pittwater Council v A1 Professional Tree Recycling Pty Ltd (No 2) [2008] NSWLEC 326

 

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

 

Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v State of New South Wales [2014] NSWCA 116

 

Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305

 

Selby v Pennings (1998) 102 LGERA 253

 

Shannongrove Pty Ltd v Environment Protection Authority [2013] NSWCCA 179; (2013) 84 NSWLR 668

 

Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529

 

Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2015] NSWLEC 101

 

Sutton v Warringah Shire Council (1987) 16 NSWLR 498

 

Taggett v The Council of the Shire of Tweed [1993] NSWCA 260

 

Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9; (2014) 88 ALJR 473

 

Thiess v Collector of Customs [2014] HCA 13; (2014) 250 CLR 669

 

Tovir Investments Pty Ltd v Waverly Council [2014] NSWCA 379

 

Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30

 

Weston Aluminium v Environmental Protection Authority; Weston Aluminium v Alcoa [2007] HCA 50; (2007) 239 ALR 641

 

Wingecarribee Shire Council v O'Shanassy (No2) [2014] NSWLEC 73

 

Wood v The Queen ([2012] NSWCCA 21; (2012) 84 NSWLR 581

Yeomans v Woollahra Municipal Council (1977) 36 LGRA 81

Texts Cited:

Macquarie Dictionary (on-line ed)

Category:

Principal judgment

Parties:

Sutherland Shire Council (Prosecutor)
Benedict Industries Pty Ltd (Defendant)

Representation:

Counsel:
Mr D Buchanan SC with Dr P Dwyer (Prosecutor)
Mr T Howard SC with Mr C Ireland (Defendant)

  Solicitors:
Pikes & Verekers Lawyers (Prosecutor)
Minter Ellison (Defendant)

File Number(s):

2016/155588, 2016/155519, 2016/155707

Judgment

TABLE OF CONTENTS

TABLE OF CONTENTS

The Council Prosecutes Benedict for Unlawfully Clearing Trees and Bushland Vegetation and for Building a Bund Wall [1]

The Offences as Charged [4]

The Prohibited Development Charge [8]

The Council Has Not Changed Its Case [25]

Evidence Relied Upon by the Parties [29]

The Construction of the Bund Wall [33]

History of the Use of Lots 1 and 2 for Quarrying [46]

Purpose of the Construction of the Bund Wall [69]

History of Relevant Applicable Planning Controls [77]

The SSLEP 2000 [97]

Sydney Regional Environmental Plan No 9 - Extractive Industry [106]

The Proper Characterisation of the Use of the Bund Wall [120]

Ancillary Use [132]

The Building of the Bund Was Permissible With Consent Under the SSLEP 2000 as Ancillary Development [137]

The Construction of the Bund Wall was Permissible With Consent Under SREP 9 [155]

The Bund Wall Was Not Built to Dispose of Waste [163]

Permissibility Under SREP 9 Prevails Over Prohibition in SSLEP 2000 [201]

The Absence of Development Consent for Quarrying on Lot 2 Has Not Been Proved Beyond Reasonable Doubt [206]

The Council Was Not the Only Consent Authority [210] 

Ministerial Authority to Grant Development Consent over Lots 1 and 2 Under Ordinance 105 Between 12 July 1946 and 26 June 1951 [226]

The Authority of the Cumberland County Council to Grant Development Consent over the Site Under the CCPSO Between 27 June 1951 and 1 July 1962 [236]

The Search Evidence of the Council [248]

The Searches of the Council's Records Were Inadequate [268]

Delegated Authority of the Council to Grant Development Consent [271]

Problems With the RECFIND and Minute Book Searches [284]

There Were Traces of a Development Consent for Lot 2 [309]

Summary [320]

The Existence of a Consent Granted for Quarrying on Lot 2 Can Be Inferred From the Facts and Circumstances [323]

Proof of a Grant of Consent by Conduct – the Application of the Presumption of Regularity [325]

The Council Has Not Disproved the Existence of a Consent to Quarry on Lot 2 [345]

The Conditions of the 1967 Consent Authorised the Construction of the Bund [347]

Applicable Principles of Construction of Development Consents [357]

The Prohibited Development Charge Must be Dismissed [362]

The TPO Charges [364]

Terms of the TPO [370]

Benedict Removed Trees as Defined Under the TPO [381]

Was the Vegetation Removed "Bushland Vegetation"? [384]

Principles Applicable to the Interpretation of the TPO [388]

The Meaning of “Bushland Vegetation” in the TPO [394]

The Expert Evidence [400]

The Natural Vegetation was Altered [405]

Structure and Floristics [417]

Vegetation Mapping [422]

The Council Has Not Demonstrated an Absence of Consent to Quarry on Lot 2 [476]

Conclusion and Orders [486]

The Council Prosecutes Benedict for Unlawfully Clearing Trees and Bushland Vegetation and for Building a Bund Wall

1. As is generally known, The Great Wall of China was not built to keep the rabbits out. Rather, it was constructed for the principal purpose of protecting the then Chinese states and empires against the raids and invasions of various nomadic groups of the Eurasian Steppe.

2. The less great, but nonetheless still imposing, bund wall built around part of the perimeter of the sandstone quarry owned and operated by the defendant to these proceedings, Benedict Industries Pty Limited (“Benedict”), was built principally for not dissimilar reasons, namely, to keep trail-bike riders and other potential trespassers out of the quarry premises and away from the dangerous quarry cliff face, and to protect and secure the site from vandals and thieves (there were other purposes as well).

3. Critically, it was not, as the evidence below discloses, built unlawfully in order to dispose of waste. Instead, I have determined that the bund wall was lawfully built and that the vegetation removed for its construction was lawfully cleared. As a consequence of all the charges brought by the prosecutor, Sutherland Shire Council (“the council”) against Benedict must be dismissed.

The Offences as Charged

4. In three separate matters heard concurrently, Benedict is charged by the council with five offences against s 125 of the Environmental Planning and Assessment Act 1979 (“the EPAA”) as a result of the clearing of vegetation for the purpose of, and the construction of, a bund wall, from between 1 August 2010 until 25 May 2012.

5. Benedict has pleaded not guilty to all five charges.

6. Two charges allege that between 3 June and 23 October 2011 Benedict injured trees and bushland vegetation without prior written consent contrary to the provisions of the Sutherland Shire Tree and Bushland Vegetation Preservation Order 2001 (“TPO”) made under the provisions of the Sutherland Shire Local Environmental Plan 2000 (“the SSLEP 2000”) in breach of s 125 of the EPAA (matter 2016/155707). Two further charges allege that between 1 August and 16 September 2010 Benedict injured trees and bushland vegetation contrary to the TPO and s 125 of the EPAA (matter 2016/155588) (the four charges collectively are the “TPO charges”).

7. The fifth and final charge is that between 1 August and 16 September 2010, and continuing to 25 May 2012, Benedict carried out development by building the bund wall that was prohibited by the SSLEP 2000 contrary to s 76B of the EPAA and in breach of s 125 of the EPAA (2016/155519) (“the prohibited development charge”). It is convenient to commence with a determination of this charge given its centrality to the three sets of proceedings.

The Prohibited Development Charge

8. Section 76B of the EPAA states as follows:

76B   Development that is prohibited

If an environmental planning instrument provides that:

(a)   specified development is prohibited on land to which the provision applies, or

(b)   development cannot be carried out on land with or without development consent,

a person must not carry out the development on the land.

9. Section 76C provides that:

76C   Relationship of this Division to this Act

This Division is subject to the other provisions of this Act, unless express provision is made to the contrary.

10. This includes s 109B (Liverpool City Council v Maller Holdings trading as Sydney Horse Transport [2014] NSWCCA 299 at [49]):

109B      Saving of effect of existing consents

(1)   Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force.

(2)   This section:

(a)   applies to consents lawfully granted before or after the commencement of this Act, and

(b)   does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and

(c) has effect despite anything to the contrary in section 107 or 109.

(3)   This section is taken to have commenced on the commencement of this Act.

11. Importantly, s 125(1) of the EPAA provides that:

125   Offences against this Act and the regulations

(1)   Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Secretary, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.

12. Accordingly, the four elements of the offence the subject of the prohibited development charge are that (Liverpool City Council v Maller Holdings Pty Ltd [2013] NSWLEC 154; (2013) 211 LGERA 360 at [3] per Pain J. This aspect of her Honour’s reasons were not disturbed on appeal in Maller Holdings trading as Sydney Horse Transport):

1. Benedict;

2. carried out specified development on the land;

3. such specified development was prohibited from being carried out on the land by an environmental planning instrument; and

4. in engaging in that conduct, Benedict did something that it was forbidden to do by or under the EPAA within the meaning of s 125(1) of that Act.

13. Having regard to these elements, the council put its case this way: that it must prove beyond reasonable doubt that Benedict carried out an activity which amounted to specified development under the EPAA on land to which the SSLEP 2000 applied, which was prohibited by the SSLEP 2000 “and which did not have any other form of development consent available”.

14. It is the council, and not Benedict, that bears the onus of proving beyond reasonable doubt that the use of land for the specified development was prohibited under the EPAA (Liverpool City Council v Maller Holdings Pty Ltd at [128]-[130] per Pain J. Clarified on appeal in Maller Holdings trading as Sydney Horse Transport at [49]).

15. The offence under s 76B is a wholly separate offence from that created under s 76A(1)(a) of the EPAA, which states that:

76A   Development that needs consent

(1)   General

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

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

16. That provision applies when an environmental planning instrument specifies that development can only be carried out with development consent. Or in other words, the development will be permissible with consent.

17. By contrast, s 76B mandates that the specified development cannot be carried out if the development is prohibited by an environmental planning instrument.

18. The elements of the offence are not the same. This means that if the council establishes the elements of the offence of carrying out development without consent under s 76A(1)(a) of the EPAA, this will not prove the elements of the offence of carrying out prohibited specified development under s 76B of that Act. As Benedict correctly, in my opinion, submitted, the elements of the offences are mutually exclusive, and thus, if specified development is permissible with consent, then the elements of s 76B cannot be made out.

19. Benedict was not charged with having done things forbidden by s 76A(1)(a) of the EPAA.

20. Accordingly, Benedict submitted, again, correctly, in my opinion, that if the Court were to find that the bund was permissible with consent under either the SSLEP 2000 or another environmental planning instrument, such as, relevantly, the Sydney Regional Environmental Plan No 9 – Extractive Industry (No 2 – 1995) (“SREP 9”), but that Benedict nevertheless carried out the development without consent, this could not result in a conviction.

21. In summary, Benedict contended that there were four alternative reasons why the prohibited development charge ought to be dismissed:

1. first, the building of the bund wall on Lot 2 was not prohibited development under the SSLEP 2000. It was permissible with consent under that instrument because it was an activity that was ancillary to quarrying on the site;

2. second, the carrying out of quarrying on Lot 2 was not prohibited development within the meaning of s 76B of the EPAA because it was permissible with consent under SREP 9, which prevailed over any prohibition in the SSLEP 2000;

1. third, even if the carrying out of development on Lot 2 was prohibited development upon a proper construction of the planning instruments, the council did not discharge its onus of proving that there was no development consent applying to both lots because either:

1. the council could not prove that a development consent had not been issued for quarrying on Lot 2; or

2. a grant of development consent in respect of quarrying on Lot 2 could be inferred, applying the presumption of regularity, in light of conduct evidencing the grant of such a consent, including the council’s own conduct; or

3. the 1967 consent was, upon its proper construction, a consent authorising the construction of the bund wall on Lot 2; and

4. fourth, the council is precluded from contending that there is no consent on the grounds that to do otherwise would be an abuse of process. Benedict agreed, however, that if it was successful on any of its three bases above, there would be no necessity to determine this last argument (T1166:40-49).

22. It is axiomatic that the council must negate all rational hypotheses consistent with Benedict’s innocence beyond reasonable doubt.

23. It should be noted that Benedict was not relying on the continuance of an existing use right which was, at the time of the alleged commission of the prohibited development offence, a prohibited use (see ss 107 to 109 of the EPAA). Rather, reliance was placed by it on s 109B of the EPAA (T1210:5-36).

24. Because I have accepted the first, second and third contentions (with the exception of (iii), concerning the scope of the 1967 consent), it is not necessary to determine Benedict’s fourth contention, and I decline to do so given the complex nature of whether a declaration of the type proved by Benedict by way of remedy can be granted in criminal proceedings.

The Council Has Not Changed Its Case

25. Benedict asserted that the council had sought to belatedly and fundamentally change its position at the close of its case. It did so, Benedict contended, in two ways. First, by resiling from its earlier statement in its opening address that the construction of the bund wall on Lot 1 was with consent or was otherwise lawful. And second, by reserving its right to contend, again contrary to its opening submissions, that it did not bear the onus of proving that there was no consent for quarrying on Lot 2.

26. No application was made by the council to amend its case (at least not in this respect) and such an application would have been required in light of the council’s opening (see paragraphs 49-54 of the council’s written opening address dated 19 November 2015).

27. Were the council to have changed course, contrary to its opening which posited that an essential element of the charge in respect of the construction of the bund wall on Lot 2 was the absence of a development consent for quarrying or extractive industry of the kind the council accepted applied to Lot 1, then I would have accepted the submission of Benedict that any such application ought to be rejected. This is because to do otherwise would have caused procedural unfairness to Benedict insofar as it specifically did not (because it was not required to) adduce evidence about the absence of a consent specifically for the construction of the bund wall, but instead challenged the council’s witnesses on the absence of a general development consent for extractive industry applying to Lot 2.

28. In the result, the debate is, in my view, moot for two reasons. First, because I do not understand the council to have altered its position in the manner contended by Benedict, a position made clear to, and accepted by, the parties during Benedict’s closing address (T1178:37). That is to say, this judgment proceeds on the basis that the council accepted that the use of Lot 1 for the construction of the bund wall was pursuant to a development consent, or was otherwise lawful, and that it bore the onus of proving that there was no consent for quarrying or the carrying out of an extractive industry on Lot 2. And second, because, in any event, as the reasons below reveal, I do not accept that the council has discharged its burden of proving beyond reasonable doubt the non-existence of a consent permitting the construction of the bund wall on Lot 2.

Evidence Relied Upon by the Parties

29. Numerous exhibits were relied upon by both the council, and, in particular, Benedict.

30. The council also sought to rely upon the following affidavit evidence:

COUNCIL WITNESSES

DATE AFFIRMED

DATE SWORN

Vanessa Bailey, Development Compliance Supervisor, (June 2006 to 4 November 2012), Change Manager (5 November 2012 to current – as at 1 August 2013) employed by the council

07/09/12

01/08/13

Karen Barrass, Executive Officer – Governance employed by the council

03/06/15

Ryan Church, Survey Technician employed by the council

07/09/12

Stephen Cook, Property Management Project Officer employed by the NSW Department of Trade & Investment – Metropolitan Office

22/04/15

Ian Drinnan, Manager of Environmental Science & Policy Unit and Principal Environmental Scientist employed by the council

07/09/12

04/07/13

30/10/13

04/02/14

Christine Edney, Environmental Assessment Officer – Planner employed by the council

29/11/12

03/06/15

Alyce Fisher, Solicitor employed by the council

03/06/15

02/11/15

Lucy Harries, Environmental and Building Compliance Officer employed by the council

04/12/12

Pamela Hazelton, Soil Scientist, Program Head, Coordinator and Lecturer in the Master of Environmental Engineering Management, University of Technology, Sydney

11/02/14

26/02/14

Stephen Heapy, Manager, Land Information Unit employed by the council

28/11/12

02/07/13

29/10/13

07/11/13

Todd Hopwood, Governance Manager (as at 19 July 2013), Manager, Administration and Risk (from 11 May 2015) employed by the council

19/07/13

05/06/15

17/11/15

Jordan Lewis-Stark, Information Management Officer, Records & Information Division employed by the council

01/06/15

Jeffrey Lucke, Surveyor employed by the council

07/09/12

Roslyn McCulloch, solicitor for the council

28/11/12

Beth Morris, Senior Policy Advisor employed by the council

07/09/12

Rachel Schimpf (later Zuhra), Supervisor Governance Support employed by the council

02/06/15

James van Breda, Tree Assessment Supervisor employed by the council

04/06/15

Gerhard Walz, Surveyor employed by the council

04/12/12

04/07/13

Patrick Weston, Tree Preservation Officer employed by the council

06/12/12

Ellen Whittingstall, (Executive Officer Privacy and Access to Information employed by the council

22/05/15

04/06/15

31. The council also relied upon the statutory declaration of Mr David Lane, the Vice President of NearMap Pty Ltd, dated 13 November 2012. NearMap creates and provides high resolution PhotoMaps from aerial photographs and it created 12 PhotoMaps for the council in the Menai area over the period from August 2010 to October 2012.

32. With the exception of the oral evidence of Mr Roger Moona (discussed below), and the statement of evidence of Dr David Robertson (dated 27 May 2015), an ecologist and the director of Cumberland Ecology Pty Ltd, and Mr Denny Linker, a surveyor and strata certifier for Jeblon Pty Ltd (dated 3 December 2015), Benedict relied on a plethora of documentary exhibits.

The Construction of the Bund Wall

33. The clearing and construction of the bund wall has taken place on part of a sandstone quarry currently operated by Benedict.

34. The quarry is located at Sandy Point, Menai, in the local government area of the Sutherland Shire, at 14309 Heathcote Road, presently registered as Lots 1 and 2 in DP 1176153 (“Lot 1” and “Lot 2”, respectively. Together, “the site” or “the land”). The quarry has an area of approximately 38.12 ha.

35. The quarry has previously been known as “Benedict’s Quarry” or “Sandy Point Quarry”.

36. The land on which the quarry is located is, and historically has been, on the following lots:

Western side	Eastern side
Lot 1 in DP 1176153	Lot 2 in DP 1176153	Redefined and registered 26.6.12
Lot 7307 in DP 1162238	Lot 7308 in DP 1162238	Registered 18.2.11
Crown land not identified by Lot or Portion	Lot 456 in DP 752034
	Portion 456, Parish of Holsworthy, County of Cumberland

37. Importantly, Lot 2 is wholly within what was formerly Lot 456, or Portion 456.

38. The quarry, the clearing of the vegetation and the construction of the bund wall, are located both on Lot 2 (the eastern side of the quarry) and also Lot 1 (the western side of the quarry). No charges are brought by the council, however, in relation to the development on Lot 1 because of the existence of a prior consent permitting quarrying on Lot 1 (the 1976 consent). A survey plan of the location of the bund wall on Lots 1 and 2 is annexed to this judgment at “A” (the bund wall, insofar as it is located on Lot 2, is marked in yellow).

39. It was an agreed fact that on 14 July 1967, the council issued notice of approval 900/67 under the County of Cumberland Planning Scheme Ordinance or the Town and Country Planning (General Interim Development) Ordinance 105 in respect of the quarrying activity on Lot 1 (“the 1967 consent”).

40. It is the clearing of vegetation and the construction of the bund wall around the eastern, and small parts of the northern, perimeter of Lot 2 only, which has resulted in the alleged commission of all five offences.

41. It is not in contention that the trees and vegetation present within the footprint of the bund wall on Lot 2 were removed solely so that the bund wall could be constructed. It is the removal (and hence their ‘injury’) of these trees and vegetation that form the basis of the TPO charges.

42. It is not in contention that Benedict caused the bund wall to be built. Commencing on 8 September 2010 and continuing into mid 2012, substantial quantities of fill material were transported from Benedict Recycling Pty Ltd’s (“Benedict Recycling”) Chipping Norton depot to Benedict’s quarry and used to construct the bund wall. The directors, secretaries and shareholders in Benedict Recycling are also the directors, secretaries and shareholders in Benedict.

43. Weighbridge dockets (or tax invoices) were generated in respect of the fill transported to the quarry for construction of the wall. The net mass of the fill the subject of the dockets is 210,910 tonnes. The proportion of the bund wall that is located on Lot 2 is 40.6%, which amounts to a total net mass of 85,629 tonnes. The bund wall occupies 9.3% of Lot 2.

44. The approximate dimensions of the bund wall are 685m in length, 5m in height (average), and 5m in width at the top (average). It is approximately 20m wide at its base.

45. As referred to above in the table (at [36]), it is also not in dispute that Lot 2 is wholly within what used to be Lot 456 in DP 752034, or Portion 456, Parish of Holdsworthy, County of Cumberland.

History of the Use of Lots 1 and 2 for Quarrying

46. As the history of the site reveals, since at least the 1950s a number of permissive occupancies and, subsequently, licences, including environmental protection licences (“EPL”), have been granted to Benedict, and the prior owners and operators of the quarry, to permit quarrying or extractive activity to be carried out over both Lots 1 and 2:

1. commencing in 1953, Burfield Pty Ltd (“Burfield”) was the beneficiary of permissive occupancy 53/125 to use the land comprising Lot 2 for the purposes of quarrying ironstone gravel;

2. the council itself was the beneficiary of permissive occupancy 66/92 to use the land now known as Lot 1 and Lot 2 for the purposes of quarrying gravel for a period commencing in 1966;

3. in 1966 permissive occupancy 66/379 was granted to A H Walker to quarry in Lot 1;

4. from 1976 to 1980, Walker Quarries Pty Ltd was the beneficiary of permissive occupancy 76/31 to use the land comprising Lot 1 and Lot 2 for the purposes of a crushed rock quarry;

5. on 1 September 1980, the right to use the land comprising Lot 1 and Lot 2 for the purposes of a crushed rock quarry was transferred by the Crown to The Readymix Group Limited (“Readymix”) and Readymix used the land for that purpose until about 1998;

6. on 21 August 1998, licence L 309860 under the Crown Lands Act 1989 was granted by the Crown to the Chipping Norton Lake Authority (“CNLA”), which remained the beneficiary of that licence until 2005; and

7. on 2 March 2010 the Crown granted licence RI 454972 under the Crown Lands Act to Benedict to use the land comprising Lot 1 and Lot 2 for purposes that included quarrying. That licence continues to apply to the land.

47. In addition to the permissive occupancies granted by the Crown in the 1950s and 1960s to use the land for the purposes of quarrying gravel, the Sandy Point Quarry (Lot 1 and Lot 2) has been the subject of grants by the Crown of permissive occupancies and licences to use that land for the purposes of quarrying sandstone/crushed rock almost continuously for a period of approximately 40 years since the grant of permissive occupancy 76/31 in 1976.

48. As the evidence discloses, the council has known that the Sandy Point Quarry (Lot 1 and Lot 2) has been used for the purposes of quarrying under the permissive occupancies and licences throughout the period since the 1950s. The disturbance to the area was evident in aerial photographs on the council database.

49. At times the council used material from the quarry and had the right to quarry Lot 1.

50. Although the initial boundary of permissive occupancy 66/379 granted to A H Walker in 1966 did not include the land now known as Lot 2, but only included Lot 1, in 1973 the Crown (the Department of Land) re­considered the appropriate boundary of that permissive occupancy. The Department considered that the final surface levels suitable for subsequent residential development in the area should be incorporated into permissive occupancy 66/379 and that full development of the quarry could necessitate adjustment of the boundaries of the occupancy to allow the quarry floor to be blended with adjoining natural surface, and moreover, because any "existing use" would only permit the then present area (Lot 1) to be quarried, any adjustment ought to be resolved prior to residential zoning.

51. In 1974 the council gave its in-principle concurrence to the extension of permissive occupancy 66/379 over the land now known as Lot 2 on condition that it was provided with the details for its concurrence. In 1977, the council was provided with those details.

52. The details were provided in the Schedule of Conditions to permissive occupancy 76/31 (which replaced permissive occupancy 66/379), which included the “Quarry Plans” (or “Homesite Plans”).

53. The Homesite Plans set out details about the extension of the quarry over the land now known as Lot 2 and the implementation of a plan to have the finished surface levels set at acceptable grades by designed finished levels.

54. An internal council memorandum from its Deputy Town Planner to its Town Planner dated 31 May 1977 made it clear that the council was aware of the quarrying program extending into Lot 2 and was in possession of, and had seen, the Homesite Plans.

55. During the late 1970s, the council formed the view that there was no development consent for quarrying on the Sandy Point Quarry and that this should be regularised by the submission by Readymix of a development application and an environmental impact statement. However, when the Department of Lands wrote to the council reminding it that it had initially granted development consent in 1967, the council investigated the matter and concluded that its files were incomplete and the records beyond 1973 “obscure”. It informed both the Department of Lands and Readymix by letters sent on 3 April 1981 that no development application was required in order for Readymix to continue to use the Sandy Point Quarry for the purposes of a quarry.

56. In the period from April 1981 through to 2012, the Sandy Point Quarry (on Lot 1 and 2) was used for the purposes of quarrying with the knowledge of, and without any objection from, the council.

57. In 1982, the council granted building approval 647/82 for the relocation of a weighbridge, office building, storage tanks and car park area on Lot 1.

58. In granting the building approval, the council stamped as approved a plan prepared by Readymix entitled "Topographical Plan, Sandy Point Quarry Final Quarry Floor". This approved plan depicts the natural and design contours of the quarry operating across Lot 2, indicating that the proposed quarry floor would extend across that lot.

59. In 1983 and 1984, council officers attended meetings at the Sandy Point Quarry with representatives of Readymix and the Lands Office. On the council's file DC 975/WAL are minutes of meetings held at the Sandy Point Quarry on a number of occasions. For example, on 29 April 1983, Mr Des Hewitt attended a site meeting at the quarry at which the "restaging of areas 2, 4, 5 and 6” was discussed in detail. When regard is had to the staging contemplated by the conditions of permissive occupancy 76/31 and the Homesite Plans, it appears that this discussion concerned quarrying into Lot 2.

60. Memoranda on DC 975/WAL show that the council remained actively interested and aware of the quarrying operations in the latter half of the 1980s. For example:

1. in an internal memorandum dated 11 February 1986, it is recorded that the council had received a request from “DEP” (which it may be inferred was the Department of Environment and Planning) regarding the operations at the Sandy Point Quarry. The author of the memo “Informed them that the quarry did not operate under existing uses – though establishments had approvals. Lands Dept tightly controls operations within permissive occupancy”;

2. the minutes of the Sutherland Traffic Committee meeting addressed proposed “No Standing” restrictions at the entry to the Sandy Point Quarry. These minutes indicate that the council was aware that the Illawarra Mini Bike Training Club was situated within the Readymix quarry complex. The Illawarra Mini Bike Training Club was situated on Lot 2, suggesting that the quarry was considered to be an indivisible site over all of the land covered by permissive occupancy 76/31,namely, both Lot 1 and Lot 2; and

3. correspondence between the Department of Housing and the council in January 1987, indicating that the Department had determined that the site was considered to be suitable for future residential development and that the Department wished to resolve the issue of appropriate grades and backfilling compaction requirements with the quarry operator and requested that the council provide its requirements in that regard. The council provided its requirements and did not state that quarrying activities were restricted to Lot 1 only.

61. In October 1982 the council appointed Neil Bird & Associates Consultants (“Neil Bird”) to undertake an environmental impact study (“EIS”) under the direction of a steering committee representing the council, the Department of Environment and Planning and the Lands Office. Pursuant to that appointment, an environmental study for the West Menai Release Area was prepared by those consultants on behalf of the council. Although the council argued that it was not its document, in my view, it was (see the opening section of Volume 1 at pp i to ii).

62. It may be readily inferred that the council was aware of the contents of the study. The relevance of the study is that it was specifically prepared in the context of town planning in relation to the West Menai area and it contains numerous references to the quarrying use of the Sandy Point Quarry and its intended continuation and identifies the quarry as being on Lot 1 and Lot 2.

63. Mr Roger Moona, formerly the CSR Operations Manager for Sydney hard rock and sandstone quarries, including the Sandy Point Quarry, gave evidence by reference to a 1994 aerial photo, to the effect that by 1994 the main quarry pit had advanced well inside Lot 2 and the quarrying continued to advance to the east in Lot 2 up until April 1998.

61. In 1998 the council confirmed to Readymix that the scope of the development consent granted by council for the Sandy Point Quarry would have been consistent with the operational parameters and extent of permissive occupancy 76/31, which has at all times covered the whole of the Sandy Point Quarry, including Lot 2.

62. Finally, the various operators of the Sandy Point Quarry have held a series of pollution control licences or EPLs under the Protection of the Environment Operations Act 1997 (“POEOA”) and the since repealed environmental statutes which preceded the enactment of that Act (relevantly for present purposes, the Clean Air Act 1971 and the Noise Control Act 1970) since the 1980s, permitting extractive industry and crushing and grinding works on the Sandy Point Quarry. The land identified as the “premises” under those licences has consistently been described as “the Sandy Point Quarry” without limitation as to the land known as Lot 2. The current licence identifies the licensed premises as including Lot 2.

63. These licences were contained on council's file HB 975/WAL.

64. Since 1997 the Environmental Protection Authority (“the EPA”) has been precluded from issuing EPLs for activities unless there is a development consent authorising the scheduled activities (s 50 of the POEOA).

65. The council has never, prior to commencing these criminal proceedings, informed the EPA, or suggested to it, that there was no development consent for quarrying on Lot 2. The first notification to the EPA to this effect was by way of a letter dated 14 November 2012, sent after the commencement of these proceedings in September 2012.

Purpose of the Construction of the Bund Wall

69. Because the purpose of the construction of the bund wall is central to the determination of several of the core legal issues raised by the prohibited development charge, it is necessary to consider why the bund wall was built by Benedict.

70. The council contended that the bund was built in order to dispose of waste brought onto the land. This myth can be, upon consideration of the evidence, readily debunked (see additionally the reasons at [163] – [199]).

71. In a letter dated 19 July 2012 from Benedict to the council, the following reasons for the construction of the bund wall were given by Benedict:

1. Need for the bund i.e.

a.   Security

b.   Controlling Access

c.   OH&S issues - Compliance with mine site and workplace safety legislation

d.   Noise attenuation.

e.   Water management

f.   Protection of visual amenity

72. These reasons are, in my view, confirmed, absent any doubt, by the evidence put before the Court. This evidence consisted of:

1. evidence that there was a longstanding and persistent security problem at the Sandy Point Quarry including trespass onto the site by motorcycles and 4WD vehicles, theft, vandalism and illegal dumping. See:

1. the oral evidence of Mr Moona: T853:10-854:11 and 855:44-857:18;

2. documentary evidence of the CNLA (see memoranda dated 25 October 2001 and, in particular, 19 and 22 February 2002);

3. documentary evidence of the NSW Police (various COPS reports during 2011 detailing attempted, and actual, thefts of vehicles, machinery, break and enters and malicious damage to property at the quarry);

4. the evidence of Dr David Roberston in his statement of evidence dated May 2015; his Heathcote Ridge, West Menai – State Significant Site Ecological Assessment for Gandangara Local Aboriginal Land Council dated December 2011; and his oral evidence (at T824:35–38 and 832:34–50);

5. the evidence of Ms Lucy Harries (T279:5–7; 280:11-281:12 regarding illegal dumping and T282:10–27, regarding the use of the area by motorcycles);

6. evidence of Mr Ian Drinnan, who acknowledged that the site was known for vandalism, 4WD vehicles and trail bike riding, and illegal waste dumping (based upon his own observations) (T85:1–7 and 135:9–42); and

7. various aerial photographs of the quarry site over time showing what may be inferred are vehicle tracks;

2. inferences properly available from the evidence of the council’s town planner, Ms Christine Edney, that the bund was “associated with the quarrying” (T600:1-4);

3. evidence from Mr Moona that there previously existed a bund wall on the quarry (T848:20-849:20);

4. evidence from Mr Moona that the quarry was expanding in an easterly direction (T852.30);

5. evidence that other measures (such as fencing, placement of rocks and the erection of a smaller bund wall) were inadequate to address the security/trespass issue (the evidence of Mr Moona at T853:29-854:17; the documentary evidence of the CNLA referred to above; and the documentary evidence of the NSW Police, also referred to above, showing ongoing incidents, despite security measures);

6. evidence that the erection of perimeter bund walls was a recognised measure carried out by another unrelated quarry operator on a number of quarry sites for the purposes of security and visual amenity (evidence of Mr Moona at T855:44-856:9);

7. evidence that the bund wall had physical and locational characteristics which had the effect of impeding unauthorised access onto the Sandy Point Quarry, which included:

1. evidence of the location of the bund being on the perimeter (see the survey plan annexed to the affidavit of Mr Gerhard Walz sworn 4 December 2012, and a 2012 aerial photo with cadastral boundary overlay annexed to the affidavit of Mr Steven Heapy sworn 28 November 2012);

2. evidence of the physical dimensions and physical characteristics of the bund wall demonstrating that the bund wall was sizable with steep batters (see the evidence of Mr Walz referred to above and his oral evidence at T213:21, and the agreed facts referred to earlier in this judgment as to the dimensions of the bund);

3. the view of the bund wall and Lots 1 and 2 by the Court at a site inspection held on 23 November 2015;

4. various photographs of the bund showing its height, contours and slope, taken by Ms Edney and annexed to her affidavit sworn on 29 November 2012;

5. photographs taken by Ms Harries annexed to her affidavit dated 4 December 2012 and three other photographs taken by Ms Harries where she acknowledges that they show motorcycle or vehicle access: T286:10-34). The latter three photographs, tendered by the council, clearly depicted that for the bund to be traversed by a vehicle, its structure had to be altered and the drainage ditch filled to give the vehicle's tyres purchase. These photographs permit the inference that the bund was for the purpose of excluding such vehicles and that unless it was itself vandalised and physically altered, it was likely to be effective in this regard; and

6. evidence of Ms Harries that in her view the bund wall would present a very serious impediment to anyone wishing to drive or ride a vehicle onto the quarry site (T285:33-40);

8. evidence that sections of tree trunks and branches were placed on the top of the bund wall to restrict movement (see the evidence of Mr Drinnan contained in a diary note dated 17 April 2012 annexed to his affidavit sworn 4 July 2013 and his oral evidence at T83:30-50, 84:41-50 and 135:8-26. And see also the evidence of Ms Harries contained in her affidavit of 4 December 2012, including the photographs annexed thereto);

9. evidence that security of the quarry site was a requirement imposed on Benedict under its s 34A Crown Lands Act 1989 licence issued by the Department of Lands, RI 454972, dated 2 March 2010 (see, especially, conditions 38, 55 and 66);

10. evidence that the council’s officers perceived the structure to be a perimeter / bund wall / embankment (see the evidence of Mr Drinnan contained in his diary note of 17 April 2012, and his oral evidence at T83:25-84:8; the evidence of Ms Harries in her affidavit dated 4 December 2012, in particular the captions to some of the photographs she annexed to her affidavit and her oral evidence at T299:29-44 and 300:13-44; and the evidence of Ms Edney at T499:1);

11. evidence that the council's Manager of Environmental and Building Compliance, Mr Michael Ryan, perceived the bund wall to be a barricade and informed the council, including Ms Harries, of this (see also the oral evidence of Ms Edney at T492:20-45);

12. evidence that one of the purposes of the bund wall was for control of stormwater, site runoff, and drainage (see the evidence of Mr Drinnan in his diary note dated 17 April 2012, his affidavit dated 4 July 2013 and at T83:42-50, and the internal memorandum of Ms Harries dated 23 April 2012);

13. evidence that the bund wall had drainage channels at the base of its walls on the inside and outside, and that the effect of the placement of the bund wall was to change the drainage and natural flows of the quarry site (see the report of Mr Drinnan dated July 2012, annexed to his affidavit sworn 7 September 2012, and the evidence of Ms Harries at T285:10-13 and 296:1-15);

14. evidence that the need for the bund was for security, controlling access, occupational health and safety compliance with mine site and workplace safety legislation, noise attenuation, water management and visual amenity (see the letter from Benedict to the council dated 19 July 2012 and the oral evidence of Mr Drinnan at T135:7-35); and

15. the hearsay evidence, not admitted as truth of its contents, of statements made by Benedict’s representatives to council confirming that the purpose of the construction of the bund wall was as claimed by Benedict. This evidence put the council on notice that the purpose of the bund was allied to the use of the site as a quarry, rather than for some other nefarious purpose, such as the disposal of waste. The council did not adduce any evidence to the contrary notwithstanding this notice:

1. the oral evidence of Ms Edney at T484:40-44 and 489:41-491:30;

2. the evidence of Ms Harries contained in handwritten notes made on 17 April 2012, an internal memorandum from Ms Harries to Mr Ryan dated 23 April 2012, and her oral evidence at T280:41-49, 281:18-282:8, 283:27-47, 284:10-50; 285:1-19, 288:34-50, 289:1-7, 295:22-50, 296:41-44 and 297:5-24;

3. evidence of what Benedict said in a written response to statutory notices issued by the council (but excluding the letter from Benedict to the council dated 19 July 2012, for reasons explained below) as given by Ms Harries (T306:28-309:2, 318:23-319:45);

4. the oral evidence of Mr Drinnan where he accepted that he was told about the previous operator having the fence cut and other criminal acts (T140:16-50) and that he was advised of the stormwater and drainage purpose of the bund by Benedict (T141:5-8);

5. evidence of the location of the bund, namely, around the perimeter of Lots 1 and 2, rather than material dumped in a mound or placed on the quarry floor (more logical);

6. evidence of the size and slope of the bund; and

7. evidence of the significant cost to Benedict to build the bund (see the covering letter from Benedict to the council dated 19 July 2012).

73. Contrary to the council’s submission, the evidence as to the purpose of the bund wall cannot seriously be described as “tenuous”. Rather, it powerfully demonstrated that the bund was built as an important aspect of the quarry’s operations by securing the site, rendering it safe, deterring and preventing trespassers, and to assist with drainage.

74. I specifically reject the council’s submission that the bund could not be for the purpose of securing the site given its location. To the contrary, it is constructed exactly where it is most logical to construct a fence or bund, namely, on the perimeter to the quarry. To construct it close to the quarry face would not be logical as it would impede the eastward advance of the quarry face, and would provide inadequate protection for the eastern parts of the site, which various aerial photographs admitted into evidence demonstrate, was riddled with car and bike tracks.

75. A submission by the council as to the “massive cost of transporting the material to the site and forming it into the structure it became”, notwithstanding the evidence by Mr Walz as to the bund’s volume, was entirely speculative.

76. I therefore find, without any doubt whatsoever, that Benedict constructed the bund for the purpose of securing the quarry from trespass, theft, vandalism and to ensure basic site security and safety, in addition to the other purposes related to the quarrying use of the land identified above, including water management.

History of Relevant Applicable Planning Controls

77. As set out in the affidavit of Ms Beth Morris (a Senior Policy Advisor in the council’s Environment Planning Division), sworn 7 September 2012, the following relevant town planning controls applying to the Sutherland Shire have been in force since 12 July 1946, in the form of the planning instruments listed below:

1. 12 July 1946 - Town and Country Planning (General Interim Development) Ordinance (“Ordinance 105”);

2. 27 June 1951 - The County of Cumberland Planning Scheme Ordinance (“the CCPSO”);

3. 5 March 1976 - Interim Development Order No 30 - Shire of Sutherland;

4. 24 April 1980 - Sutherland Planning Scheme Ordinance;

5. 1 November 1991 – Interim Development Order 23;

6. 27 March 1992 - Sutherland Local Environmental Plan 1992 (“SLEP 1992”);

7. 12 Nov 1993 - Sutherland Local Environmental Plan 1993 (“SLEP 1993”);

8. 15 Dec 2000 – SSLEP 2000; and

9. 29 Nov 2006 - Sutherland Shire Local Environmental Plan 2006.

78. In relation to applications for development consent, since 1951 each of the local schemes have followed the pattern established by the CCPSO. In what can analogously be regarded as a development control table, the CCPSO created zones and set out in tabular form the various purposes for which land could be used within those zones.

79. Ordinance 105 was made under the Local Government Act 1919. Under Ordinance 105, local councils were appointed as "interim development authorities".

80. Relevantly, cl 4 of Ordinance 105 permitted certain "interim development" in different classes including:

1. Class II - development by a person carrying on a public utility undertaking;

2. Class III - the "rebuilding, restoration or replacement" of what included war damaged buildings;

3. Clause IV - permitted "interim development"; and

4. Class V - development of any description specified in Sch 1.

81. All other development required the permission of the Interim Development Authority.

82. Schedule 1, cl 7 of Ordinance 105 included within the list of permitted interim development:

The carrying out by the owner or lessee of a mine, on the mine, of any development required for the purposes of the mine, except –

(a)   the erection of buildings (not being plant or other structures or erections required for the mine, working, treatment or disposal of minerals), and the reconstruction, alteration or extension so as materially to affect the design or external appearance thereof, of buildings;

(b)   the formation or alteration of any means of access to a road.

83. The definition of "mine" excluded a quarry (see cl 3).

84. Under the CCPSO councils were appointed as the "responsible authority" (cl 6(1)). The CCPSO applied to the land that is now known as Lots 1 and 2 of DP 1176153, formerly known as Lots 7307 and 7308 in DP 1162238 and Lot 456 (now Lot 2) in plan 6887-2030.

85. Maps under the CCPSO showed that the land now known as Lots 1 and 2 in DP 1176153 was included in land zoned "Special Uses Military".

86. Clause 23C(1)(a) and (2) contained in Pt IIA provided that certain land was reserved for "special uses" and could not be used to "erect a building or carry out work of a permanent character or make any permanent excavation on land reserved under this Part", other than that which was incidental to the reserved purpose, without the consent of the responsible authority. Under cl 26 and the relevant Table, buildings could be created or used with consent for any purpose.

87. Clauses 32 and 33(a) of Pt IV permitted the continuation of lawful existing uses. An existing work in the Special Uses zone could only be altered, enlarged or extended with consent.

88. On 2 April 1954, a notice was published in the New South Wales Government Gazette (No 58) (“the Gazette”) that the CCPSO was suspended with respect to land referred to in a Schedule to the notice. This applied to the Sandy Point residential area, but not to the site (Lots 1 and 2), so that the CCPSO continued to apply to the site.

89. Interim Development Order 30 applied only to waterfront areas, so the CCPSO continued to apply to the Site.

90. The 1980 Sutherland Planning Scheme Ordinance applied to all land within the Shire of Sutherland other than the land described in Sch 8, shown on the scheme map (cl 5). Because the site was shown on the map as "excluded", the CCPSO therefore continued to apply to it.

91. Interim Development Order 23 came into force in November 1991 and applied to the Menai Town Centre but not to the site.

92. Under the SLEP 1992 the site was zoned 1(b) Rural (Future Urban), that is, "rural land capable of future urban development". In the Development Control Table, in Zone 1(b) Rural (Future Urban), “extractive industry” was prohibited.

93. The term "extractive Industry" was defined in the SLEP 1992 as:

An industry or undertaking, not being a mine, which depends for its operations on the winning of extractive material from the land upon which it is carried on.

94. The SLEP 1992 changed the nature of the development for which consent could be granted on what is now known as Lots 1 and 2 of DP 1176153.

95. By reasons of ss 107 and 109 of the EPAA, Lot 1 could continue to be used in accordance with the 1967 consent granted to A H Walker, however, after the SLEP 1992 took effect, and because of the zoning of the land, quarrying could not be consented to on Lot 2.

96. The following year, the SLEP 1993 came into force. The zoning for the land remained the same and “extractive industry” was prohibited (see the Development Control Table).

The SSLEP 2000

97. As stated above, the SSLEP 2000 came into force on 13 December 2000. By virtue of cl 28 and Development Control Table, the site was similarly zoned 1(b) Rural (Future Urban). The objective of that Zone is stated as:

The maintenance of land in an undeveloped state until appropriate assessments are made of the sustainability of the land for urban development.

98. Under the SSLEP 2000 “ancillary development” is defined in cl 5 to mean “a building, work or use which is used or carried out in conjunction with the primary use of the site”.

99. The term “extractive industry” is defined in cl 5 to mean “an industry or undertaking, not being a mine, which depends for its operation on the winning of extractive material from the land upon which it is carried on”.

100. The term “exempt development” has the same meaning as it does in the EPAA (cl 5) (it is further defined in cl 17 and Sch 4 of the SSLEP 2000).

101. Pursuant to cl 28, the only development permitted in Zone 1(b) Rural (Future Urban) without consent is "exempt development" (item 2). Development that requires development consent is:

3    Development that requires development consent

Ancillary development not included in item 2.

Development for the purpose of:

drainage,

recreation areas,

roads,

utility installations, other than gas holders or generating works.

Demolition not included in item 2.

Subdivision.

102. Otherwise, any development other than development included in item 2 or 3 is (item 4) prohibited development.

103. It was not in dispute that the construction of the mound/bund wall on Lot 2 was not within the meaning of "exempt development" under the SSLEP 2000.

104. The Sutherland Shire Local Environmental Plan 2006 (“SSLEP 2006”) was gazetted on 29 November 2006.

105. The SSLEP 2006 excluded the land on which the quarry was located (see cls 4(c) and 7(2)(c)), including Lot 2. Thus SSLEP 2000 continued to apply to the land on which the quarry was located.

Sydney Regional Environmental Plan No 9 - Extractive Industry

106. SREP 9 is an environmental planning instrument made in 1995 under the EPAA. As at the date of the prohibited development charge, SREP 9 applied to land in the Sutherland Shire.

106. The aims and objectives of SREP 9 are stated as:

2   Aims, objectives etc

This plan aims:

(a)   to facilitate the development of extractive resources in proximity to the population of the Sydney Metropolitan Area by identifying land which contains extractive material of regional significance, and

(b)   to permit, with the consent of the council, development for the purpose of extractive industries on land described in Schedule 1 or 2, and

(c)   to ensure consideration is given to the impact of encroaching development on the ability of extractive industries to realise their full potential, and

(d)   to promote the carrying out of development for the purpose of extractive industries in an environmentally acceptable manner, and

(e)   to prohibit development for the purpose of extractive industry on the land described in Schedule 3 in the Macdonald, Colo, Hawkesbury and Nepean Rivers, being land which is environmentally sensitive.

108. Significantly, by reason of cl 7, extractive industries were permissible with consent:

7   Extractive industries permissible with consent

(1)   This clause applies to land described in Schedule 1 or 2.

(2)   A person may, with the consent of the council, carry out development for the purpose of an extractive industry on land to which this clause applies.

(3)   The council must not grant such a consent unless:

(a)   it has considered the effect of the development on flood behaviour, the water quality, quantity and hydrodynamics of any watercourse or underground waters and also the effect of flood behaviour on the development and operations associated with the development in the vicinity, and

(b)   it has considered a rehabilitation plan prepared in accordance with the Guidelines for Rehabilitation Plans in the Extractive Industry Report, and

(c)   it is satisfied that, while the development is being carried out, noise and vibration levels will generally be in accordance with the guidelines in the State Pollution Control Commission Environmental Noise Manual (1985 edition) available at the offices of the Environment Protection Authority and the councils of the areas specified in Schedule 4, and

(d)   it is satisfied that rehabilitation measures will be carried out in accordance with the guidelines in the Urban Erosion and Sediment Control Handbook (1992) prepared by the Department of Conservation and Land Management and available at the offices of the Department of Land and Water Conservation.

109. By cl 5 of SREP 9, the "council" was defined as “the area in which the development is or is proposed to be carried out”.

110. Clause 5 of that instrument also defined “extractive industry” to mean:

extractive industry means:

(a)   the winning of extractive material, or

(b)   an undertaking, not being a mine, which depends for its operations on the winning of extractive material from the land on which it is carried on, and includes any washing, crushing, grinding, milling or separating into different sizes of that extractive material on that land.

111. The term “extractive material” is further defined to mean “sand, gravel, clay, turf, soil, rock, stone or any similar substance”. It was not in dispute that the sandstone extracted from the quarry the subject of these proceedings constituted “extractive material”.

112. Clause 8 listed certain steps that had to be followed by the council upon receipt of an application for consent. This included forwarding a copy of any development application to the Director-General of the Department of Mineral Resources within seven days of receipt, and taking into account any response received by the Director-General within the relevant time frame.

113. By item 4 in Div 8 of Sch 1 to SREP 9, the Sandy Point Quarry site (Lots 1 and 2) was identified by the following words:

The land covered by Licence Number 76/31 Metropolitan, Sandy Point, CSR.

114. Importantly, cl 19(1) of SREP 9 stated as follows:

19   Extractive industry and waste

(1)   Nothing in this plan allows the use of land for the disposal of waste brought on to the land from other land, whether or not such a use is ancillary to the use of land for the purpose of extractive industry.

115. Section 36 of the EPAA relevantly states that:

(1)   In the event of an inconsistency between environmental planning instruments and unless otherwise provided:

(a)   there is a general presumption that a State environmental planning policy prevails over a local environmental plan or other instrument made before or after that State environmental planning policy and

116. This was also effectively provided for by cl 4(1) of SREP 9 which provided that:

4   Relationship to other environmental planning instruments

(1)   This plan prevails to the extent of any inconsistency between it and another environmental planning instrument, except a State environmental planning policy.

117. While the Environmental Assessment and Planning Amendment Act 2008 converted regional environmental plans into State Environmental Planning Policies under Div 2 of Pt 3 of the EPAA, some existing SREPs were grandfathered and it appears that SREP 9 was one of them (see cl 120 in Div 2, Pt 21, Sch 6 of the EPAA).

118. The council submitted that the consequences of the historical planning controls applicable to Lot 2 were that:

1. as a result of the provisions of Ordinance 105, and subsequently the CCPSO, until 1992, in certain circumstances, use of what is now Lot 2 for quarrying was permissible with consent;

2. but under SREP 9, while the use of Lot 2 for quarrying was permissible with consent, cl 19(1) of that instrument excluded its operation; and

3. otherwise, the use of Lot 2 for quarrying was prohibited under the SSLEP 2000, and along with it the construction of the bund.

119. By contrast, Benedict argued that, first, the development the subject of the charge (the building of the bund) was not prohibited under the SSLEP 2000. Rather, it was permissible with consent under that instrument because it constituted ancillary development to the primary legal use of the site. And second, that the bund was development for the purpose of an extractive industry within the meaning of SREP 9.

The Proper Characterisation of the Use of the Bund Wall

120. Whether the bund is for the purpose of an extractive industry within the meaning of SREP 9 or ancillary to the primary legal use of a site for the purposes of SSLEP 2000, depends on the proper characterisation of the purpose of the bund.

121. The term purpose in planning law describes the character which is imparted to the land at which the use is pursued; it is not a reference to the subjective intention of the user (Shire of Perth v O'Keefe [1964] HCA 37; (1964) 110 CLR 529 at 534-536 per Kitto J, Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 309-310 per McHugh JA and Macquarie International Health Clinic Pty Ltd v University of Sydney (1998) 98 LGERA 218 at 221 per Stein JA, with whom Mason P and Meagher JA agreed).

122. As Preston J opined in Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 (at [27]-[28], [34] and [36]. Affirmed in Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107; (2011) 180 LGERA 343 at [50]-[55] and see more recently Jojeni Investments Pty Ltd v Mosman Municipal Council [2015] NSWCA 147; (2015) 208 LGERA 54 at [75]):

27   In planning law, use must be for a purpose: Shire of Perth v O’Keefe (1964) 110 CLR 529 at 534-535 and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGRA 173 at 188. The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued: Shire of Perth v O’Keefe (1964) 110 CLR 529 at 534.

28   In determining whether land is used for a particular purpose, an enquiry into how that purpose can be achieved is necessary: Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 at 499-500. The use of land involves no more than the “physical acts by which the land is made to serve some purpose”: at 508.

…

34   However, the nature of the use needs to be distinguished from the purpose of the use. Uses of different natures can still be seen to serve the same purpose: see Shire of Perth v O’Keefe (1964) 110 CLR 529 at 534, 535 and Warringah Shire Council v Raffles (1978) 38 LGRA 306 at 308.

…

36   The characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes: Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310.

123. His Honour elaborated upon the principles of the characterisation of the purpose of development of land in Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147; (2013) 201 LGERA 116 (at [24]-[32]):

24   Planning law turns on the characterisation of the purpose of development of land. The threefold classification in the EPA Act and environmental planning instruments made under it in regard to the carrying out of development depends on the characterisation of the purpose of the development. The threefold classification is of development that may be carried out without development consent, development that may be carried out with development consent, and development that is prohibited or cannot be carried out with or without development consent: Chambers v Maclean Shire Council at [33].

25   That threefold classification is manifested in the land use table for the various zones identified in environmental planning instruments, particularly at the local level (referred to currently as local environmental plans). The land use table for each zone identifies, by reference to the purpose of the development, the categories of development that fall within each of the three classifications. The purpose of a development is objective in the sense that it is the end which is seen to be served by the carrying out of the development, not subjective in the sense that it is the object in the minds of the persons carrying out the development: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534.

26   Commonly, the environmental planning instrument containing the land use table with the threefold classification of developments describes each purpose, either directly in a definitions clause or indirectly by incorporating definitions in other statutory instruments. Each purpose is indicated in the instruments by means of a description of a character which the purpose imparts to land or buildings on land in which it is pursued. This may be done at varying degrees of particularity. In some instances, the purpose is described at a level of generality (such as "industries"), so that the purpose may be pursued in a variety of specific ways (such as the variety of specific types of industries). In other instances, the purpose is described at a level of particularity, connoting a narrow range of choice, such as specifically defined types of shops: Shire of Perth v O'Keefe at 534-535; Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 at [27].

27   The nature of the use needs to be distinguished from the purpose of the use. Uses of different natures can still be seen to serve the same purpose: Shire of Perth v O'Keefe at 534-535; Warringah Shire Council v Raffles [1979] 2 NSWLR 299 at 301; (1978) 38 LGERA 306 at 308.

28   A use of land can also be for two or more purposes. The purposes may or may not be conflicting. Non conflicting purposes have similarities in character. An example of non conflicting purposes are those which have a genus-species relationship: one purpose is a genus (such as "industries") and the other purpose is a species falling within that genus (a particular kind of industry such as "extractive industry" or "rural industry"). Conflicting purposes are different in character. Where land is used for two conflicting purposes, difficult questions of construction and characterisation can arise when the environmental planning instrument permits one purpose but prohibits the other. It may be necessary to ascertain, having regard to the character, extent and other features of the uses, whether the prohibited purpose can be regarded as subsumed in the permissible purpose, so that it is legitimate to disregard the prohibited purpose and treat the permissible purpose as that for which the land is used, or whether they are independent of each other so that the land is being used for both prohibited and permissible purposes.

29   There are two means by which the environmental planning instrument and land use table for each zone may identify the purpose of development falling in each of the three classifications, namely, identification as either a nominate purpose or an innominate purpose. A nominate purpose is one which the environmental planning instrument expressly nominates by name as being within one of the three classifications. Hence, the land use table for a zone may nominate particular categories of purposes of development as being within the classifications of development that may be carried out without consent, development that may be carried out with consent, or development that is prohibited.

30   An innominate purpose is one which the environmental planning instrument does not nominate by name as being within one of the three classifications, but rather identifies as falling within a particular classification by reason of it not being nominated in other classifications; it is development other than development in the other classifications. Hence, the land use table for a zone may classify as prohibited development, development for a purpose other than a purpose nominated as being able to be carried out without consent or with consent.

31   In answering the question of the characterisation of the purpose of development, it is important to determine how, in relation to the particular environmental planning instrument, the question arises. Frequently, the question is whether development consent is necessary and can be obtained to carry out particular development. If the environmental planning instrument provides that development for a particular purpose may be carried out without development consent or is prohibited, development consent cannot be granted for such development: The Council of the City of Parramatta v Precision Rubber Service Pty Ltd (Unreported, Land and Environment Court of NSW, Pearlman CJ, 10 March 1995) at 6-7 (development that was permissible without consent); Chambers v Maclean Shire Council at [37], [38] (prohibited development).

32   In this situation, the question of characterisation is to be answered by reference to the particular terms of the environmental planning instrument and the land use table for the zone in which the development is to be carried out. The inquiry is whether the development can be characterised as being for a purpose that the instrument identifies as being permissible with consent and not for a purpose that the instrument identifies as being permissible without consent or as being prohibited. The focus of this inquiry is whether the development is within a nominate or innominate purpose, the terms of which are specified in the instrument. It is not to determine, at large, the category of purpose into which the development should be seen as falling and to formulate a description of that category. The latter task may be required when determining whether a development is an existing use under the EPA Act: see C B Investments Pty Ltd v Colo Shire Council at 280. But it is not the task to be undertaken when determining whether development is for a purpose that may be carried out with consent.

124. Applying the legal tenets set out above, I agree that the council has characterised the purpose of the bund too narrowly when it described it merely as "to keep out motor cycles and 4WD vehicles", without considering that that exclusionary function serves the purpose of use of the Sandy Point Quarry as a quarry. That is, the role of this barricade structure around the perimeter of the quarry is to exclude trespassers from the quarry and to allow the quarry to operate safely and in accordance with its licence conditions.

125. The characterisation of the purpose of a use of land must be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried out upon it, and not simply in terms of individual activities (Chamwell at [36] citing Royal Agricultural Society at 310). To characterise the purpose of the use of land served by the bund as "the exclusion of motor cyclists and 4WD vehicles" is, in my view, to mistakenly characterise the purpose by reference to individual activities rather than by reference to the activities, transactions and processes carried on across the whole site.

126. The council misunderstands the distinction between a use of part of an area of land and the purpose of that use, which is the end designed to be served by the use of a particular component. Thus in Chamwell, the land was not properly characterised as being used for the separate purposes of a car park, driveway, access ways and landscaped forecourt, but for the more general overall purpose of retail development (at [31]).

127. The quarry development, which includes the bund, the quarry face, the works compound, the access road, the internal access roads, the stockpiles, the machinery and equipment areas, the weighbridge and the truck washing area, constitutes one integrated and indivisible activity and is not capable of artificial subdivision into "the bund" and "the rest of the quarry". It would not be appropriate or correct, for example, to characterise the internal access roads or the works compound as for their specific purposes rather than for the overall quarry purpose.

128. Furthermore, the council erroneously, in my opinion, discounts the deterrent effect that the bund wall ought reasonably be inferred to have in relation to vandals and thieves, especially those in vehicles, given the height and slope of the walls.

129. As Mr Moona’s evidence made tolerably clear, cyclone fences, security guards and lower bunds had been tried in the past and had failed effectively to secure the quarry (T853:15-50; 854:1-17; 856:33-40).

130. There was no evidence supporting the council’s submissions that "obviously, a purpose of deterring or preventing vandalism and theft would have been more effectively and cheaply achieved if, rather than construct the mound/bund, the defendant had employed security guards, as had been done in the past". If anything the evidence was to the contrary.

131. The council submitted that the bund wall was not necessary for the carrying out of quarrying. However, this is not the test for determining what the bund's purpose is, and necessity is not determinative of whether a building or component of a land use serves a purpose. The bund serves the quarrys’ purpose even though other means may have been available to address the security issue, such as signage or security guards.

Ancillary Use

132. In respect of the concept of ancillary use, a use will be ancillary if it is use of part of land for a purpose that is subordinate to and subserves another dominant purpose (Foodbarn Pty Limited v Solicitor-General (1975) 32 LGRA 157 at 160-161 per Glass JA and Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404 at 409-410 per Meagher JA).

133. Where part of premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, the former may be disregarded and treated as the dominant purpose for which the whole is being used (Foodbarn at 161 and Abret at [50]-[55] citing Chamwell). However, where the whole premises is used for two or more purposes, none of which subserve the other, it is irrelevant to enquire as to which is the dominant use (Foodbarn at 161 and Abret at [68]). That is, there is no relevant ancillary use where premises are used for two or more purposes, none of which subserves the others, if any one purpose which is independent is not incidental to the other purpose.

Q. What about your mapping in 2011? Can we take that as accurate?

A. Well, accurate and appropriate for the purpose to which we put it, yes, in 2011.

Q. Indeed, you've told us, haven't you, that it's the finest – that is to say the smallest detail mapping available to your knowledge in that area?

A. That's right.

Q. We've got to use some sort of standard by which to assess floristics and structure, don't we?

A. Yes.

Q. Mapping, recognised mapping, acceptable mapping, is the accepted way of judging floristics and structure of a vegetation community, isn't it?

A. That's too open a question, I think, given the nature of different – or the accuracy and scale of different forms of mapping. I would prefer to agree that the regional mapping by OEH is a good indication of what is either there or might be there on site. It's not absolutely correct, and I've drawn the court's attention to some examples where I believe it's not correct in this instance.

440. According to the council, the comparator inherent in the second limb of cl 4(ii) is vegetation mapping (T1136:35-43). Put simply, it was the council’s position that if a scientific study of the natural vegetation undertaken prior to alteration mapped the relevant area as Dwarf Apple Heath Woodland, and a study taken after alternation immediately prior to its removal revealed the presence of the same vegetation community, then the removed altered vegetation was representative of the structure and floristics of unaltered natural vegetation.

441. But as Benedict correctly submitted, in my view, just because two units of vegetation can be classified as the same for the purpose of vegetation mapping as a form of Dwarf Apple Heath Woodland, this does not mean that the floristics and structure of one is axiomatically the floristics and structure of the other. This was not Dr Robertson’s evidence. Dr Robertson opined that there were a number of possibilities as to the structure and floristics of the natural (that is, pre 1955, prior to the area being subjected to quarrying and mining) vegetation, and because of the extent to which the vegetation in the study area had been, and still was when he carried out his study, disturbed and modified by the extractive industry, the trail bikes and the 4wheel drive vehicles, there was considerable uncertainty as to whether the vegetation was still representative of the structure and floristics of the natural vegetation.

442. It must be acknowledged that an area of vegetation may be significantly modified or degraded and still be classified as the same vegetation community for mapping purposes (as Dr Robertson conceded: T783:3-6). But it may not share sufficient floristic and/or structural attributes for the purposes of cl 4(ii) of the TPO (T765:37-767:14). One reason, for example, might be because the relative abundance of species within the subject area may no longer be present. Mr Drinnan did not obtain any data as to abundance when giving his opinion as to the floristics and structure of the subject vegetation.

443. Thus (in addition to the passage quoted above: T833.48) Dr Robertson gave the following evidence (T765:37-767:12):

Q. It, nevertheless, was the case, just to give an example, that Angophora Hispida provided in 2015 sufficient cover and was sufficiently abundant to be, as I understand your evidence, the predominant or most distinctive diagnostic species for a classification of the vegetation as belonging to the Hinterland Sandstone Dwarf Apple Heath Woodland vegetation community?

A.    It wasn't particularly abundant, but it was present on the site.

Q.    Sufficient to satisfy the diagnostic criteria for the presence of that species for the purpose of mapping it as Hinterland Sandstone Dwarf Apple Heath Woodland?

A. I think there are other Heath species or other woody shrubs that were sufficiently present for that to occur. Strangely enough I don't think that that particular small tree species was that prevalent. It was prevalent. It was present, I should say.

Q.    Because you couldn't have classified it as Hinterland Sandstone Dwarf Apple Heath Woodland, could you, if the species had been absent?

A.    If the species had been well, theoretically you can. If it's a degraded you can identify it as a degraded or modified form, and a number of the species can be missing from that community. In its healthy, undisturbed form it's described as having certain species present as dominance, but they can drop out or disappear in a disturbed form. So you can theoretically identify vegetation without one or more of the dominance.

Q.    It would be very unusual to do so where it the species has been adopted has part of the name of the community so as to identify that community, would you?

A.    No. It's not unusual.

Q.    Not unusual?

A.    Not unusual, so. I'll give you an example. I'll just explain to the Court, there's an endanger vegetation community called White Box Grassy Woodland and it's critically endangered across south eastern Australia and it's one of the predominant woodland types that was present at the time of European settlement. It's being used for our wheat, sheep country, and it's some of our most common farming you know, sort of habitat, I suppose, and it's listed as critically endangered now because such a big proportion has been cleared. The listing for that community actually recognises that it can be converted into another form of community, so it can be converted to what's called derived native grassland. So all of the trees can be removed and you can have a rich assemblage of native grasses in the grounds stratum, and that's sufficient for it to be identifiable as part of that community if certain habitats are there. I use this as an example of how modification by such things as farming and quarrying and sometimes selective logging can, for example, take out one or more of the dominant species, and you can still recognise an example of that from a you know, from a modified sample because of the presence of other species that typify that community.

Q.    That's because the listing permits it, you just told us so?

A.    Well, it's not purely because the listing permits it. It's because you can understand as an ecologist that some of these species can drop out under certain conditions.

Q.    Nevertheless, the listing does permit it?

A.    In the example that I gave, the listing permits it. Yes.

Q. Does the listing for Hinterland Sandstone Dwarf Apple Heath Woodland permit the listing of a vegetation unit, or the classification of a vegetation unit as of that vegetation community in the absence of Angophora Hispida?

A.    Yes.

Q.    It does?

A.    Yes.

Q.    That's in the Sydney Metropolitan Catchment Management Authority

mapping, is it?

A. I'd have to check. I don't know that it expressly mentioned that, but the practice that we have permits that because there are what they call "condition states of vegetation". You can have vegetation it can be pristine or it can be degraded to various levels, and it is appropriate to take a precautionary approach, for example, as we've done in the 2011 study, and even in degraded areas of the site you could recognise certain types of vegetation, you can map them, even though certain species of plant might be absent, or largely absent. You can still tie your identification to a particular vegetation type because the descriptions that are given in the DECCW 2009 publication and the more recent one in 2013, they give you a description of the vegetation the best examples of the vegetation in good condition.

444. In other words, and at the risk of repetition, the mapped name of a vegetation community is not necessarily determinative of whether the structure and floristics of one unit is representative of the structure and floristics of the other. Rather, what is determinative is a substantive comparison between structure and comparison of the respective vegetation units. The more modified or “altered” one unit is, the less likely it will still be representative of the structure and floristics of the other.

445. This was the gravamen of Dr Robertson’s evidence. He concluded that the uncertainty as to the structure and floristics of the natural vegetation in the subject area prior to alteration in the 1950s due to an absence of data, and the degree to which the vegetation had been modified prior to its removal by Benedict, meant that he could not be confident that the removed vegetation was still representative of the natural vegetation prior to alteration in terms of structure and floristics (T832:14-32).

446. There were several specific aspects of the modification that were of concern to Dr Robertson. The first was the alteration of the geology caused by the earlier quarrying activities (the removal of the ironstone gravels); the second was the modification of the drainage of the area; and the third was the removal and destruction of some proportion of the seedbank that would have existed in the top soil.

447. This was in contrast to Mr Drinnan who gave evidence that, although strip mining for ironstone road gravel in the 1960s had meant that the majority of vegetation was cleared from the area in and around Lot 2, small remnants of vegetation were left and the vegetation on Lot 2 and surrounds had naturally regenerated. Although there had been some minor replanting of the area with species that were not locally occurring, all other vegetation on the site and adjoining area had naturally regenerated, either from seed fall, or remnants of vegetative material such as lignotubers of native plants. Mr Drinnan drew the comparison with regeneration after a bushfire and opined that the natural bushland on Lot 2 had regenerated since the 1960s in much the same way that native vegetation responds to a severe bushfire that removes or damages the majority of above ground vegetation.

448. The council submitted that, as a consequence, it could be inferred that the natural vegetation of the site prior to disturbance in the 1950s to 1970s was that which presently exists within the adjacent unmined areas with the same elevation, slope, aspect, and soils, namely, Dwarf Appeal Heath Woodland. The presence of significant numbers of the same species on the site as were present in the adjacent plateaux to the south indicated that the same vegetation community was present on the mined sites as existed previously, so that floristically the site was still representative of the Dwarf Apple Heath Woodland community and was therefore representative of the natural vegetation. The council emphasised that replacement vegetation communities did not have to be a facsimile of historical communities and the community on the site could nevertheless be representative of the natural community.

449. On the assumption - based on the conditions attached to relevant permissive occupancies - that during the 1950s to the 1970s in the area where the bund wall was constructed, the topsoil was removed during the mining process, the ironstone gravel was removed, and the topsoil was returned having had roots and sticks removed from it, Dr Robertson accepted that the returned topsoil would have likely included some sort of seed bank and that the natural vegetation would have grown back (T761:7-23 and 764:15).

450. Although, as a matter of ordinary language, there is nothing about the word “representative” in the context of cl 4(ii) that requires the vegetation that was removed to be the successor vegetation to the natural vegetation, as Benedict noted, there was no evidence of any conditions attaching to any permissive occupancy during that period that required the topsoil to be restored in a manner that would preserve a vestiginal seed bank on the site after the quarrying of gravel.

451. For example, cl 30 and 31 of permissive occupancy 66/92 provided for the following:

1. excavation to a depth of six to 10 feet;

2. extraction of the ironstone gravel mantle;

3. upon completion of each section, the spreading of the overburden evenly over the surface in order to ensure uniformity of the finished surface with adjoining sections; and

4. the removal of dead timber and other vegetation so that it did not accumulate on the premises.

452. Irrespective of whether the overburden was or was not spread over the quarry site (there was some debate about this given the areas identified on Diagram ‘C’), as Dr Robertson explained, the spreading of the overburden did not involve the setting aside and restoration of the topsoil. There was no condition requiring this to be undertaken or the seed bank reserved in either permissive occupancy 66/92 or 66/281 (see Diagram ‘C’). In all likelihood the topsoil would have been mixed with the overburden. This creates doubt as to the viability of the seek bank for the purpose of vegetative regeneration.

453. There was, Benedict submitted, no cogent evidence therefore, at least to the criminal standard, that the vegetation that was present had regrown from the original unaltered natural vegetation for the purposes of cl 4(ii) of the TPO (either limb). Based on the state of the evidence, I agree.

454. Mr Drinnan suggested that, in addition to historical data showing the vegetation community prior to clearing, a comparison of the geographic and topographic context of the mined and unmined areas could also be meaningfully made. This was because the geographic and topographic context did not change.

455. The significance of the fact that the geographic and topographic context were said to remain static after mining was that the same vegetation community, namely, Dwarf Apple Heath Woodland, was found by SMCMA and by Cumberland Ecology in 2011 to be present not only on the immediate eastern side of the quarry but also on the other plateaux to the south, until the soils changed to soils which do not contain a significant quantity of ironstone.

456. As noted by Mr Drinnan, the majority of the Sandy Point Quarry site comprises residual soils of the Lucas Heights soil landscape, which is residual of the Mittagong formation and comprises fine to medium grained sandstone with interbedded shale. The surface soils tend to contain ironstone, and are highly permeable with low fertility, and the subsoils tend to have low permeability, very low fertility, and high erodibility. The mix of shale and sandstone tends to support low forest and woodland communities.

457. As is known, during the 1950s, 1960s and 1970s, the Sandy Point Quarry was used for the extraction of ironstone gravel because it was an area where there was a high concentration of this material.

458. The council submitted that the ironstone gravel removal did not, contrary to Dr Robertson’s evidence, alter the geology or drainage of the subject area.

459. The council relied on the expert evidence of Dr Hazelton, a soil scientist with an extensive history of studying soils of the region. Dr Hazelton reviewed aerial photographs from 1955 to 1984 to determine which sites had been disturbed and which sites were undisturbed by quarrying.

460. Dr Hazelton accepted that the area immediately to the east of the bund wall (referred to by her as “site 1”) was the subject of ironstone gravel mining during the 1950s through to the 1970s, and that this process involved the use of bulldozers to clear the land and to strip the top soil and other layers of soil necessary to reach the layer of ironstone gravel.

461. Dr Hazelton investigated the soil at site 1 to determine its texture, structure and chemical characteristics. She took samples from holes dug at site 1 and also from sample holes at a nearby site of the south, referred to by her as “site 2”. Site 2 contained both areas which had been disturbed and which were undisturbed.

462. As a result of the soil investigation and analysis carried out by her at sites 1 and 2, and based on her extensive experience and previous surveys of the area, Dr Hazelton opined that the soils which had been disturbed because of gravel extraction immediately to the east of the location of the bund wall (site 1) had a similar textural, structural and chemical characteristic as the soils investigated at site 2, in both the disturbed revegetated and undisturbed areas.

463. In her analysis of the soil holes in undisturbed locations in site 2, Dr Hazelton found ironstone pisoliths (round balls of ironstone gravel) in one of the holes. A soil hole in close proximity, and with the same vegetation cover, had no gravel present. That analysis supported her conclusion that the presence of gravel was not essential for vegetation growth.

464. The council therefore submitted that the Court should reject the suggestion of Dr Robertson that the gravel mining on the site of the quarry would have altered the vegetation community.

465. Dr Robertson acknowledged that, although he had an understanding of soil and the way they interact with vegetation, he was "by no means a specialised soil scientist” (T745:25-30). He conceded that he had not taken any soil samples of the site. I have taken both concessions into account in assessing his evidence in this regard.

466. However, in comparing the soil and vegetation at site 1 with the soil and vegetation at site 2, Dr Hazelton gave the following evidence (T57:5-26, emphasis added):

A.   ... I mean, really and truthfully, if I can just say what I saw as a field person. When I went onto this site, regardless of who was there, I can honestly say that the top of the soil on the site 1, which was the site that had been worked over for the mine, was entirely different from the topsoil site that eventually in 9, 10, 11 and 12 because here you're looking at something that is a real mess with the gravel on top of it and you still get sandy clay loam and work being done because it's been there for such a long time so you're getting fossilisation occurring, but in actual fact the drainage on that particular site number 2 if you look at it would be impeded just going into that soil because it's covered almost like a blanket, so in actual fact it's not as easy to write it down, but if you have a look at it honestly even if you knew nothing about soils at all, if you went on to site 1 and you compared it with site 2 you'd see they were entirely different types of soil.

467. Therefore, not only did Dr Hazelton observed that the appearance of the top of the soil at site 1 was distinctly different from the appearance of the top of the soil at site 2, she noted that they were different types of soils. Dr Hazelton also noted that the disturbance at site 1 was impeding the drainage at that site. This is significant because it supports the evidence of Dr Robertson that the historical disturbances in that area would have altered the drainage.

468. More importantly, given that what is at issue is the vegetation, was the evidence Dr Hazleton gave about how different the vegetation was at the disturbed site 1 compared to the undisturbed site 2 (T57:5-26, emphasis added):

Q.   Entirely different types of site in terms of their soil structure?

A.   Just in their appearance, not talking about structure, just their absolute appearance because in this sort of situation where you've got this ironstone because he said something about devoid of vegetation these areas [disturbed areas in site 1] tend to be devoid of vegetation and that was true. You only had large trees, very minimum if any ground cover compared with site 2, not site 2, 9, 10, 11, 12 had groundcover a completely different sort of site all together. I mean it couldn't take anyone who knows nothing about soils or anything to see they were entirely different sites.

469. The evidence of Dr Hazelton was therefore in conformity with that of Dr Robertson insofar as both experts stated that the modification to the site caused by successive decades of extractive activity had the consequence of, at the very least, altering the drainage of the area with the correlative effect that the vegetation on the area, mined for ironstone gravel was different to the vegetation on the areas that had not been disturbed.

470. The council submitted that Dr Robertson’s opinion that he could not say with a suitable degree of scientific confidence that the vegetation present in the footprint of the bund was, prior to its removal, still representative of the structure and floristics of the natural vegetation, was an attempt to supplant the ultimate factual question for the Court under the second limb of cl 4(ii) of the TPO.

469. I do not agree. Dr Robertson was doing no more (and no less) than expressing his legitimate scientific opinion that he could not be certain of the central tenet of cl 4(ii) of the TPO for the reasons he gave. As an appropriately qualified expert he was entitled to do so. Given that, as explained above, I have determined to prefer the evidence of Dr Robertson over that of Mr Drinnan, I accept his opinion. This means that the council has failed to discharge the criminal burden of proof on this issue. I am unwilling to find to the requisite degree that the vegetation that was there prior to its alteration commencing in the 1950s, was the same vegetation community, in terms of its structure and floristics, even taking into account its inherent variability, as that removed by Benedict in 2010.

470. The council was also critical of Dr Robertson’s uncertainty in the face of no properly conducted scientific survey of the natural vegetation before alteration in the West Menai area prior to the 1950s (it was agreed that the 1949 aerial photograph depicted unaltered natural vegetation whereas the 1955 photographs did not) for the purpose of the comparison of the structure and floristics of the vegetation that was removed by Benedict (T1136:7-49). According to the council, the logical corollary of the absence of such data would mean that the second limb of cl 4(ii) of the TPO was unenforceable in the West Menai area.

471. There are three responses that may be made to this submission. The first is that without such data, this may in fact be the practical effect. To so find is consistent with the text and context of the TPO. Bushland vegetation will still be protected by the first limb of cl 4(ii) of the TPO. Second, this was not the only basis which led Dr Robertson to express a lack of confidence about the comparative structure and floristics of the vegetation units. The modified state of the vegetation he examined in 2015 in his statement of evidence was also a factor. And third, and in any event, as quoted above (T831:43-832:33), Dr Robertson was not convinced that all of the vegetation present in the disturbance footprint of the bund wall prior to 1955 was Dwarf Apple Heath Woodland.

472. In my opinion, having regard to the evidence of Dr Robertson and Dr Hazelton, I am not satisfied beyond reasonable doubt that the vegetation in the disturbance footprint of the bund wall was representative of the structure and floristics of the unaltered natural vegetation that was previously present in 1949 at that location. The council has accordingly failed to prove that the vegetation that was removed was “bushland vegetation” within the meaning of cl 4(ii) of the TPO.

473. If follows that the bushland vegetation TPO charges must be dismissed.

The Council Has Not Demonstrated an Absence of Consent to Quarry on Lot 2

476. As stated above, the TPO was made pursuant to the power conferred on the council by cl 13 of SSLEP 2000. Relevantly for present purposes, cl 13(3) of SSLEP 2000 specified with particularity the content of any order made under that clause, both in respect of the terms of the general prohibition contained within it, and also in respect of the content of the exceptions from the prohibition. That is to say, the general prohibition set out in any order made under cl 13, including the TPO, was subject to the exception expressed by the words, "except with development consent or the permission of the Council'.

477. Clause 2 of the TPO prohibits the injuring of any tree or bushland vegetation described in cl 4 of the TPO, "unless written consent is obtained in accordance with this clause."

478. Clause 5 of the TPO includes the following statement:

A development consent granted pursuant to the Environmental Planning and Assessment Act 1979 may also constitute by express words a Consent by Council to Prohibited Actions.

479. By way of a collateral challenge to the validity of the TPO - which was dismissed by this Court in Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2015] NSWLEC 101 and on appeal in Benedict Industries Pty Ltd v Sutherland Shire Council [2015] NSWCCA 272 the council argued that the combined effect of cls 2 and 5 of the TPO was to impermissibly purport to exclude from the ambit of the exception to the prohibition mandated by cl 13(3) of SSLEP 2000, any accrued ancillary rights under a development consent if the development consent did not by "express words" permit conduct which would otherwise be prohibited under clause 2 of the TPO.

480. In dismissing that contention, the Court held in Benedict Industries Pty Ltd (No 4) at [92] (undisturbed on appeal):

Favouring an interpretation of cls 2 and 5 that promotes the validity of the TPO, the exercise of properly characterised ancillary rights (and, for that matter, any other right, including the duration of the development consent: see cl 5 of the TPO) to carry out development concomitant upon the grant of approval by the council that would otherwise be caught by the general prohibition in cl 2, is preserved. In other words, if the council intended to prohibit activities that would ordinarily be permissible pursuant to the grant of a valid development consent (or some other form of permission), it would have been incumbent upon the council to expressly and unambiguously state this in the TPO.

481. It follows that it was also necessary for the council to prove that there was no development consent in force which, whether by express words or otherwise, permitted the removal of the trees and vegetation in the Sandy Point Quarry in the footprint of the perimeter bund wall on Lot 2.

482. In this regard, cl 5 of the TPO may be construed as including within the ambit of exception contained within it not just development consents granted under the EPAA, but also development consents issued under the LGA 1919, and ordinances made under that Act, including Ordinance 105 and the CCPSO.

483. In order words, the council must exclude as a rationale hypothesis that during the charge periods there was one or more development consents in force permitting Lot 2 to be used for the purposes of quarrying (mining or gravel extraction), otherwise the council will have failed to prove the absence of a consent permitting the construction of the bund wall on Lot 2, and the consequential removal of trees and vegetation for that purpose.

484. The council was therefore required to prove that:

1. there was no development consent granted under Ordinance 105 in the period during which that ordinance was in force to use the land now known as Lot 2 for the purposes of quarrying, or mining, or gravel extraction;

2. there was no development consent granted under the CCPSO during the period from June 1951 to 1 September 1980 (the date of the commencement of the EPAA) to use the land now known as Lot 2 for the purposes of quarrying, mining or gravel extraction; and

3. there was no development consent granted under the EPAA up to and including the charge periods to use the land now known as Lot 2 for the purposes of quarrying, mining or gravel extraction.

485. As disclosed above in relation to the prohibited development charge, the council has failed to exclude the rational hypothesis that there was such a consent in force with respect to the land now known as Lot 2. Put another way, the council has failed to establish beyond reasonable doubt that for the purposes of the TPO no consent was granted which in effect permitted the removal of the trees and the vegetation for the purposes of constructing the bund wall.

Conclusion and Orders

486. For the reasons given above, the council has failed to prove beyond reasonable doubt all of the elements of the five charges brought against Benedict. It therefore follows that all five charges against Benedict must be dismissed.

487. The formal orders of the Court are therefore that:

1. in proceedings 2016/155519 the charge is dismissed;

2. in proceedings 2016/155707 the charges are dismissed;

3. in proceedings 2016/155588 the charges are dismissed; and

4. the exhibits in all proceedings are to be returned to the parties.

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Annexure A (188 KB, pdf)

Amendments

26 November 2018 - Paragraph numbers added to Table of Contents

Decision last updated: 26 November 2018