Tweed Shire Council v Wintour

[1988] NSWLEC 146

Land and Environment Court

of New South Wales

CITATION:	Tweed Shire Council v Wintour [1988] NSWLEC 146
PARTIES:	APPLICANT Tweed Shire Council RESPONDENT Neville Henry Wintour
FILE NUMBER(S):	40061 of 1988
CORAM:	Holland J
KEY ISSUES:	:-
LEGISLATION CITED:	Tweed Local Environmental Paln 1987 Environmental Planning and Assessment Act 1979
CASES CITED:	Wintour v. Tweed Shire Council (1987); Parisienne Basket Shoes Pty Ltd v Whyte (1938); Caltex Oil (Australia) Pty Ltd v Feenan (1980); Bailey v Marinoff (1971)
DATES OF HEARING:	07/08/85, 22/03/88, 08/10/88
DATE OF JUDGMENT:	11/22/1988
LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: The respondent, Neville Henry Wintour, owns a parcel of land at Hastings Point in the Shire of Tweed being Lot 156 in D.P.628026. The land has frontages at the South and East to Cudgara Creek and Christies Creek.

In 1981 Mr. Wintour obtained conditional approval to subdivide part of Lot 156. It was flood prone land. One of the conditions required the level of the land to be raised by filling it. Mr. Wintour wants to obtain the fill by dredging and pumping it to a suitable part of the site for stockpiling and then spreading it to achieve the stipulated level. He claims there is no other viable way to do it, viable in the sense of making a profit out of the proposed subdivision.

Mr. Wintour has over the years made a number of attempts to obtain his fill by dredging but each time the applicant, the Tweed Shire Council, has stepped in claiming that his dredging was unauthorised and unlawful. Mr. Wintour in litigation going back to 1982 has fought the Council for, amongst other things, the right to dredge for fill. He makes claims, in which he currently persists, that he has succeeded in this past litigation in establishing a right to dredge and needs no authority from the Council. On this basis Mr. Wintour recommenced dredging on 12th January 1988 and when the Council protested he maintained that he was acting within his rights. That led the Council to commence these Class IV proceedings on 22 March 1988 for injunctions and declarations to set the matter straight.

The history of the litigation between the parties preceding the present application is set out by Perrignon J. in the judgment he delivered on 8 October 1987 in Wintour v. Tweed Shire Council (1987) 65 L.G.R.A.22. I will repeat only the facts necessary to deal with the issues raised by the Council's present claims for relief and the points of defence filed on behalf of Mr. Wintour.

The applicant's present claims for relief are as follows:-

"1.____An order that the Respondent be restrained from extracting material from the land described in the schedule hereto by dredging or any other means without the consent of the Applicant.

2.____An order that the Respondent be restrained from filling that part of the land in the schedule hereto as is affected by subdivision approval of 24th November 1981 until he has obtained the approval of the Applicant's Shire Engineer to plans and specifications pursuant to clause (a) of the Applicant's letter of approval of 24th November, 1982.

3.____An order that the Respondent restore the area from which material has been extracted to the satisfaction of the Applicant's Shire Engineer.

4.____A declaration that the subdivision approval given by the Applicant to the Respondent by letter dated 18th September, 1985 is not a valid and subsisting approval.

5.____A declaration that any engineering plans and/or specifications approved by the Applicant pursuant to its letter of the 18th September, 1985 do not constitute compliance by the Respondent with clause (a) of the Applicant's letter of approval of a subdivision dated 24th November, 1981."

The points of defence make reference to, inter alia, an undertaking given to the Court by Mr. Wintour's counsel on his behalf on 7 August 1985 in proceedings 40130/84 and later go on to state:-

"4. The parties only remain in dispute in relation to the following issues:-

(i) Whether the Respondent already has the Applicants consent to dredge Lot 156 pursuant to the subdivision approval of 24.11.81;

(ii) Whether the Respondent is bound by, or alternatively should continue to be bound by the undertaking referred in paragraph 1.3 above.

(iii) Whether the Respondent requires any consent at all from the Applicant to dredge for fill from Lot 156, in view of the judgment given by Mr. Justice Perrignon on 8.10.1987.

(iv) Whether the Respondent should be required to restore the land as sought by the Applicant in paragraph 3 of its Application.

(v) The question of who should pay the costs of these proceedings."

The Council's claims for relief in paras. 4 and 5 may be speedily disposed of after a short explanation. I have mentioned a conditional subdivision approval given in 1981. That was by letter dated 24 November 1981. Mr. Wintour appealed against the conditions (20683/82) and, before the appeal was disposed of, commenced dredging. The Council applied for an injunction to restrain the dredging (40130/84). Both proceedings were settled upon written terms of settlement signed by counsel for the parties when before the Court on 7 August 1985. Under the terms Mr. Wintour's appeal (20683/82) was ordered to be discontinued which, in the Council's present view, left the conditional approval of 24 November 1981 intact and in force. However, one of the terms (cl. 6) provided that the Council was to give Mr. Wintour a consent to subdivision in terms set forth in a letter it had written to Mr. Wintour dated 11 April 1984. The Council honoured that term by a letter dated 18 September 1985 giving the consent referred to in th

e terms of settlement. The subdivision and the conditions of approval under this consent differed in some matters of substance from those of the approval of 24 November 1981. On the same date the Council approved a set of engineering plans and specifications for the subdivision to which the letter of 18 September 1985 was directed that conformed to the conditions of that letter but not to the conditions of the letter of 24 November 1981.

Mr. Wintour, far from accepting the new consent, rejected and lodged an appeal against it (20626/85). He did not proceed with that appeal but on 24 November 1986 began, and on 5 March 1987 amended, a Class IV application (No. 40243/86) seeking, inter alia, declarations to the effect that the subdivision approval given by the letter of 24 November 1981 was a valid and subsisting approval and that the Council was not entitled to impose on that approval the conditions contained in the new approval it purported to give by its letter of 18 September 1985. This application was the matter dealt with by Perrignon J. mentioned above. At the hearing before Perrignon J. the Council acquiesced in these claims for relief and consented to the declarations sought by Mr. Wintour. Perrignon J. made declarations accordingly.

At the hearing of the present proceedings Mr. Wintour appeared in person but left me in no doubt that he adhered firmly to the position that the 24 November 1981 approval was still in force, that he had been relying and continued to rely upon it, and that he had rejected and continued to reject the approval contained in the letter of 18 September 1985. When his attention was drawn to the declaration claimed by the Council in para. 4 of its application he expressed his agreement with it. When his attention was then drawn to the relief sought in para. 5 he agreed also with that declaration and indicated that he made no claim that the engineering plans and specifications referred to therein constituted a compliance with the conditions of the subdivision approval of 24 November 1981.

In my opinion, independently of Mr. Wintour's acquiescence expressed at the hearing, the Council is entitled to the relief claimed in paras. 4 and 5. The declaratory orders made by Perrignon J. on 8 October 1987 are not compatible with the purported approval of 18 September 1985 having had or continuing thereafter to have any operative effect. His Honour's orders endorsed the validity and subsistence of the 24 November 1981 approval and the order discontinuing the appeal against the conditions of that approval left them intact and operative.

It follows, in my opinion, that the purported approval of the engineering plans and specifications pursuant to the purported approval of 18 September 1985 must be treated as nugatory and as being no compliance with the conditions of the earlier approval that was in force. Clause (a) of the earlier approval remains unsatisfied in relation to the proposed subdivision and requires to be satisfied for it lawfully to proceed. In due course I will order declarations as asked in paras. 4 and 5.

Turning to the first claim for relief, an order restraining the respondent from extracting material from Lot 156 by dredging or other means without the consent of the Council, up to 29 January 1988 development of the land was controlled by Interim Development Order No. 2, Shire of Tweed under which part was zoned Non-Urban (a), part 2a Village or Township and part was not zoned. After that I.D.O. came into effect, Mr. Wintour acquired title to additional land by natural accretion to the creek frontages at the southern boundary of Lot 156. Except for the unzoned part, the extraction of material from the land by dredging or other means required the consent of the Council.

On 29 January 1988, Tweed Local Environmental Plan 1987 made on 4 December 1987 was gazetted. Under this L.E.P. the whole of Lot 156 is zoned land, part 2(a) Residential, part 6(b) Proposed Open Space, part 7(a) Environmental Protection (Wetlands) and the remainder 7(e) Environmental Protection (Habitat). The part zoned 2(a) Residential is designated "Flood Prone Land". By cl.49 of the L.E.P. development may not be carried out for any purpose other than a home occupation on that land.

Mr. Wintour has claimed the right to dredge without consent on land unzoned to obtain fill for his zoned land. However, he himself tendered an affidavit by a surveyor employed by him to establish the location of the dredging in January 1988 that led the Council into taking these present proceedings. He wished to prove that he was not dredging sand from Christie's Creek as suggested by the Council, but from within the boundaries of Lot 156. The surveyor's evidence proved that; but also that Mr. Wintour was then dredging from zoned land, as to which the Council's consent was required under the I.D.O. which was then in force. As I have said, since the L.E.P. came into force on 29 January 1988, the whole of the land is zoned and dredging may not be done on any part of it without consent.

The first point for consideration is whether consent to dredging for fill has been given because one of Mr. Wintour's arguments is that consent has already been given by implication from the conditional consent conveyed by the Council's letter of 24 November 1981. That letter, in approving the then proposed subdivision on specified conditions, made no mention at all of dredging; but Mr. Wintour points to condition (j) which was in these terms:-

"(j) Filling the subject land to a minimum RL of 2.10 on Datum. Evidence is required that such filling will not adversely affect the adjoining land."

He argues that, because by this condition an obligation is imposed on him to fill the land and no means for doing so are either laid down or excluded, he must be held to be at liberty to choose the means. As dredging is a suitable, feasible and, according to him, the only viable method of filling the land, it must be implied that he was given permission to fill the land by dredging.

Mr. Wintour's argument cannot be sustained. Dredging for fill is an extractive industry. The application conditionally approved was for a subdivision, not the conduct of an extractive industry. The condition requiring the level of the land to be raised by filling it is not an endorsement of and does not import consent to each and every method by which that might be done. If it is desired to use a particular method which is an unlawful activity if done without consent then an application for that consent is necessary. Moreover, an extractive industry is designated development under the Environmental Planning and Assessment Act, 1979 an application for approval of which must be accompanied by an environmental impact statement and attracts the need for public notification and receipt of objections and related procedures to be followed before consent to it may be validly given. None of these requirements were met in respect of Mr. Wintour's subdivision application or even called for by it so it is quite impossibl

e to construe the consent that was given as a consent to dredging. I need not refer to the detail of the legislation just mentioned because , in my opinion, the whole question of Mr. Wintour's alleged right to dredge is determined against him by the undertaking I referred to earlier and Perrignon J's. judgment with respect to it.

In the written terms of settlement by which 40130/84 and 20683/82 were settled on 7 August 1985 there were undertakings given on behalf of Mr. Wintour that were noted in the orders of the Court made on that date in 40130/84 in the following terms:-

"THE COURT NOTES THAT:-

"1. The Respondent undertakes to carry out the work referred to in the Schedule below within 6 months from the date hereof.

2.The Respondent undertakes to not carry out by either himself his servants or agents any further work or dredging on lot 156 in D.P. 628026 without the consent of the Applicant apart from the work described in the Schedule.

....

SCHEDULE

1. The Respondent be at liberty to receive approximately 2,000 cubic metres from the existing area of excavation on lot 156 in D.P. 628026 for the purpose only of fill on lot 153 in D.P. 627026 to the satisfaction of the Applicant's Deputy Town Planner.

2. The Respondent shall level and spread existing stockpiled material in lot 156 to the satisfaction of the Applicant's Deputy Town Planner."

On 29 April 1985 the Council received from Mr. Wintour a development application for consent to the "extraction of sand for fill required for approved subdivision of part of lot 156". The application related to an area in the western portion of Lot 156 where Mr. Wintour had commence dredging operations in 1984. The Council treated the application as one for approval of designated development. As it failed to comply with the legislative requirements for consent to be given to such development the Council did not proceed to determine it and it remains undetermined.

On 24 November 1986 Mr. Wintour began the proceedings No. 40243/86 earlier mentioned that were heard by Perrignon J. In addition to the declarations claimed therein to which I have already referred, Mr. Wintour claimed the following relief:-

"4. A declaration that no development consent is required from the Respondent for:

(a) the dredging of sand from that part of Lot 156 which is not zoned under the provisions of IDO-No. 2 in the Shire of Tweed;

(b) the stock piling or placing and levelling of the said sand on so much of Lot 156 aforesaid as is the subject of the approval for subdivision referred to in paragraph 1 hereof, so as to fill the land.

5. An order that the Applicant be released from the undertaking he gave in proceedings No. 40130 of 1984 not to carry out any further work or dredging on Lot 156 in D.P. 628026 without the consent of the Respondent herein.

6. Alternatively a declaration that the Respondent is bound to deal with the development application submitted by the Applicant dated the 29th April 1985 for the extraction of sand for fill required for the approved subdivision of part of Lot 156.

7. In the alternative a declaration that consent to the said application is deemed to have been refused pursuant to Section 96 of the Environmental Planning and Assessment Act."

In giving his reasons for judgment Perrignon J. quoted the undertakings set out above. (I should note that in the report of the case in (1987) 64 L.G.R.A.22 at p.24 there is an error in the second undertaking which reads "undertakes to or carry out" instead of "undertakes to not carry out"). His Honour, at p.24-25 of the report, summarised the submissions made on behalf of Mr. Wintour in support of the above relief as follows:-

"As to the relief sought in par 4 of the application the applicant submits that no development consent is required to dredge sand from the part of lot 156 which is presently unzoned. The applicant wishes to dredge sand from such unzoned part in order to comply with a condition of the subdivision consent of 24 November 1981 which requires that the subdivided land be filled to a reduced level of 2.1 metres. It is further submitted that no development consent is required for the stockpiling of sand on that part of lot 156 which is the subject of the said subdivision consent and the filling and levelling of the said part in order to comply with the said condition.

As to par 5 of the application the applicant asked the court to release him from the undertaking contained in par 4 of the terms of settlement because it was an undertaking which he gave under the misapprehension that the council's consent was necessary for such dredging and that the consent of 24 November 1981 had lapsed, leaving the respondent without any authority to fill lot 156 which was the subject of the lapsed consent.

As to the prayer for relief in par 6 of the application the applicant says that after he gave the undertaking not to dredge on lot 156 without council's consent, he made a development application for the extraction of sand from the unzoned part of lot 156 for the purpose of providing fill to satisfy the condition of the subdivision approval that the land be filled. He further says that the application has not been dealt with by the council.

As to par 7 of the relief claimed in the application the respondent concedes that the said application is deemed to have been refused."

In considering the questions raised by the relief sought in paras. 4 and 5 His Honour said, at p.25:-

"The first question which I propose to consider is the question whether development consent is required in respect of the dredging, stockpiling and levelling of sand referred to in par 4 of the application. The difficulty which is in the applicant's way in connection with this part of his case is the undertaking which he gave to the court on 7 August 1985 that he would not carry out any further work or dredging on lot 156 without the consent of the applicant, apart of course from the work described in the schedule to the order. In this respect the applicant says that on the evidence which has been adduced in the present proceedings it is clear beyond doubt that the relevant part of lot 156 is unzoned and is above mean high water mark. In those circumstances it is argued that there cannot validly be any requirement for consent to dredging from the unzoned part of lot 156 because although such unzoned part is within the area of the Shire of Tweed it is not governed by any environmental planning instrument and i

n particular is not within any zone under Interim Development Order No. 2 - Shire of Tweed. In response to this argument it is said on behalf of the council that the applicant cannot be heard to say that no consent is required for such dredging because of the undertaking which it gave to the court on 7 August 1985. In reply to this argument the applicant, although recognising that he is bound by the undertaking unless and until the court releases him from it, says that in the circumstances the court should so release him because the undertaking was given under a misapprehension of the facts. There was, it was said, no obligation upon the respondent to give any undertaking to the court in respect of any matters for which he either already had consent or did not need consent. If he did not need the court's consent, and it was submitted that he did not, the undertaking was meaningless and unnecessary."

Later, at p.26-27, he went on to say:-

"The issue before the court in proceedings No 40130 of 1984 was whether the council's consent was required for clearing, dredging or filling on lot 156. It is said that the applicant and those advising him in those proceedings were under the misapprehension that he required council's consent for dredging or filling on lot 156 and that it was inconceivable that an undertaking in the form of par 4 of the terms of settlement would have been proffered to the court, an undertaking which was meaningless because on the true facts the consent of the council was not required for those activities. It is said that the council's contention in relation to the non-commencement of subdivision work was accepted by the respondent's legal advisers and that that was a fundamental mistake. The court, if it had known the true facts, would never have accepted the undertaking. It seems to me that cases where the court has discharged an order or released a party from an undertaking in interlocutory proceedings can be set to one side

. They do not govern the present case. Here the parties were at issue on the very matter that was the subject of the undertaking. It was a matter which, in my opinion, the court had jurisdiction and power to decide: see Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369. It was entitled to determine the facts which went to the exercise of its jurisdiction: Caltex Oil (Australia) Pty Ltd v Feenan (1980) 1 NSWLR 724. The parties by their authorised legal representatives reached an agreement that consent was necessary. This was no doubt related to whether there had been a relevant commencement under the subdivision consent of November 1981. But the filling of the subdivided land did not necessarily depend on dredging from the unzoned land and even if it did the applicant was under no obligation to concede that he needed consent to dredging from the unzoned part even if he were prepared to concede that the consent of November 1981 was no longer in existence. I am of the opinion that the undertaking in par

4 of the terms of settlement was one which the court had jurisdiction and power to accept. In those circumstances, on the authority of Bailey v Marinoff (1971) 125 CLR 529 the court had no power to release the applicant from his undertaking.

....

Even if there is power in the court to release the applicant from his undertaking I do not think that I should do so in the particular circumstances of this case. I think that the concession now made by the council as to the existence and validity of the consent of November 1981 would, without any order of the court, relieve the applicant from that part of his undertaking which would otherwise have prevented him from filling or levelling the land the subject of the subdivision consent, provided of course that such filling or levelling is done in pursuance of that consent or any condition or conditions thereof.

In relation to the relief sought in pars 6 and 7 of the application I understand that there is now no issue between the parties and I do not propose to make any declaration in terms of those paragraphs.

....

I declare that no development consent is required in respect of the activities of stockpiling or placing or levelling of sand on so much of lot 156 DP 628026 as is the subject of the subdivision consent of 24 November 1981 provided that such activities are carried out in accordance with the said consent and the conditions thereof. I refuse the order sought in par 5 of the application. I do not propose to make any declaration in terms of pars 6 or 7 of the application."

As appears from the above the grounds put before Perrignon J. for release from the undertaking were that it was given under a misapprehension of the facts on the part of Mr. Wintour and his legal advisers and a fundamental mistake on the part of the Council's legal advisers. In the present application, Mr. Wintour further claims that the undertaking was given by his counsel without instructions and contrary to his own views and interests. He contends that on a correct interpretation of the judgment of Perrignon J. he was, in effect, released from the undertaking; but, if not, should no longer continue to be bound by it and should now have an order of the Court releasing him from it.

Only in rare circumstances such as an order procured by fraud does the law allow a party to re-litigate an issue that has been clearly raised and finally decided by a Court. The question whether Mr. Wintour ought to be released from his undertaking not to dredge on Lot 156 without the consent of the Council apart from the work described in the undertaking was clearly and precisely raised by him in para. 5 of the proceedings before Perrignon J. There he asked expressly to be released from that undertaking. That question was fully argued on his behalf by his counsel and fully considered by Perrignon J. in his judgment. As appears in the extracts quoted above, Perrignon J. held that he had no power to release Mr. Wintour from his undertaking; but he went on to say that even if he had the power he thought that he should not exercise it in the circumstances of the case. Then, putting beyond all doubt what he decided, he expressly said, "I refuse the order sought in par 5 of the application".

The question is res judicata. It may not be litigated afresh. Both parties are bound by the Court's decision. It is not open to Mr. Wintour to ask again for that which the Court has refused even on a ground not taken at the time. His claim that the undertaking was given by his counsel without instructions was, for what it was worth, available to him at the hearing before Perrignon J. Presumably it was not made at that time or, if made, was not pursued by his counsel. As regards the Council as respondent to the litigation, Mr. Wintour is bound by the acts of his solicitor and counsel done on his behalf. Just because he has now chosen to appear in person does not entitle him to reopen the question upon grounds then available whether they were put forward or not. Whatever grounds for argument were open, the issue itself is finally laid to rest by the judgment and orders of Perrignon J. The result is that Mr. Wintour remains bound by his undertaking as expressed in the Court's order of 8 October 1987 and his pres

ent claim to be released from it must be rejected.

In spite of the clear rejection by Perrignon J. of his claim to be released from it, Mr. Wintour, from the statement in the judgment that His Honour thought that the Council's concession as to the subsistence of the November 1981 consent would, without any order, relieve Mr. Wintour from that part of his undertaking that would otherwise have prevented him from filling or levelling the land the subject of that consent (provided it was done in pursuance thereof and subject to its conditions), tried to extract the conclusion that Perrignon J. had held that he was entitled to dredge for filling. Mr. Wintour seemed unable to perceive any distinction between a permission or requirement to fill land and obtaining fill by dredging for it. He contended that the statement just mentioned was an implied authority from the Court to dredge the land in order to fill it because Perrignon J. referred to relief from his undertaking with respect to filling or levelling.

It is apparent that Mr. Wintour is either confused or deceiving himself as to the import of that reference. The undertaking in question was not to carry out "any further work or dredging" without consent. Para. 4 of the relief claimed referred, in sub-para. (a), to dredging of sand from non-zoned land and, in sub-para (b), to stockpiling, placing or levelling of such sand on such part of Lot 156 as was the subject of the November 1981 approval and sought a declaration that no development consent was required for either activity. His Honour, consistently with refusing relief from the undertaking not to dredge without consent, made no declaration that consent was not required for dredging as sought by para. 4(a); but, consistently with the Council's acceptance that the consent of November 1981 was valid and subsisting, declared in respect of para. 4(b) that no consent was required for the activities of stockpiling or placing or levelling of sand to fill the part of Lot 156 in respect of which subdivision had be

en approved by that consent. The significance of the reference to relief from the undertaking in respect of filling or levelling was no more than saying that, while the undertaking required Council's consent to be obtained for "other work", consent to filling and levelling was in fact in existence by virtue of Council's acceptance that the November 1981 consent was operative as to the relevant part of Lot 156.

Mr. Wintour further claimed to have been given implied consent to dredging by the way in which Perrignon J. dealt with his claims for relief in paras. 6 and 7. They related to his application of 29 April 1985 for development consent to the extraction of sand for fill. As stated in the passages from the judgment quoted above, Perrignon J. declined to make any declarations in terms of those paragraphs because he understood that there was then no issue between the parties in relation to that relief. Mr. Wintour submits that this must be understood to mean no issue (a) in the sense that the Council had consented to dredging by conceding that the November 1981 consent was subsisting when that consent required the land to be filled, the result being that the development consent applied for on 29 April 1985 was unnecessary, or (b) in the sense that the parties were in agreement at the date of the hearing before Perrignon J. that Mr. Wintour did not require the Council's consent to dredging to fill Lot 156.

In my opinion, read in the context of the litigation before his Honour and the whole of his Honour's judgment, the passages quoted will not bear the meaning put on them by Mr. Wintour. Apart from the fact that the declarations sought by paras. 6 and 7 were statements of a legal position that was obvious and did not require a declaration to establish it, his Honour had noted in relation to para. 7 that the Council conceded that the application was deemed to have been refused. Para. 6 argued that the Council was bound to deal with the application and para. 7 argued in the alternative that it was deemed to have been refused. The Council's concession disposed of both arguments by agreeing with the latter. In that sense, there was then no issue to be determined in relation to those claims for relief and this is obviously what his Honour meant in declining to make any declarations because there was "now" (by reason of the Council's concession) "no issue between the parties".

In my opinion, none of Mr. Wintour's contentions answer the Council's claim for an injunction to restrain him from extracting material for fill by dredging on Lot 156 without the Council's consent. I propose to grant the injunctive relief sought against dredging.

The next question is whether there should be an injunction restraining filling of the land until plans and specifications have been approved by the Shire Engineer pursuant to clause (a) of the approval of 24 November 1981, which condition reads as follows:-

"a) The construction of all roads, drainage and sewerage reticulation to plans and specifications, prepared by a practicing qualified Civil Engineer, and submitted to and approved by the Shire Engineer."

I have quoted condition j) already. Mr. Wintour's short point is that condition a) does not mention filling of the land and therefore the submission for approval of plans and specifications is not required in connection with compliance with condition j); condition j) is an entirely separate subject matter in which no such approval is stipulated. Therefore, according to him, he can fill without obtaining approved plans and specifications.

I would have appreciated some expert engineering evidence to assist me in this question but none was tendered by either party. The applicant Council's attitude was that it was obvious that condition a) had to be complied with prior to the filling of the land but Mr. Wintour disputed the necessity for that. I can only call on what is common knowledge and draw inferences from the subject matter and its context.

The land is flood prone and the purpose of filling it is to raise its surface to a minimum reduced level of 2.10 to put it above some selected estimated flood level. There is nothing to prohibit filling it to a higher level - R.L.2.10 is only the minimum. Raising the level of land affects run off and drainage and may be detrimental to adjoining land if adequate drainage is not provided. Condition j) required evidence to be given of no adverse effects to adjoining land from filling it. The levels established by filling are of obvious importance in relation to construction of roads, drainage and sewerage as to which condition a) expressly requires the submission of plans and specifications for approval by the Shire Engineer. The type of material used, the manner of placing it, the degree of compaction, the slope, the permeability may also be important in relation to such works. In my opinion, upon the proper construction of the conditions of approval read in relation to the proposed subdivision, it was contempl

ated thereby that approved plans and specifications of all roads, drainage and sewerage reticulation would be obtained in accordance with clause a) before the filling of the land was carried out. Therefore, Mr. Wintour should be restrained by injunction from proceeding to fill the land without obtaining the approved plans and specifications required by that clause.

Finally, the Council seeks an order that Mr. Wintour restore to the satisfaction of the Shire Engineer the area from which material has been extracted. In my opinion, there is insufficient evidence before me at present to justify such an order. It was based solely upon the fact that Mr. Wintour had carried out unauthorised work and, so it was suggested, had done so knowlingly and aware of the risks involved. That may well be but I am not presently expressing any conclusion about his state of mind in doing it. I am more concerned with the practical aspects of the matter and the effects on the neighbouring area and the public. What Mr. Wintour did was done to his own land. He claims that in the course of carrying out the subdivision the extracted areas would in due course be restored. There is no evidence presently before me that any other land or person or the public generally are in any degree affected by the state in which he has left the land. There are some photographs but these do not demonstrate that the

affected land is an intolerable eyesore or, if thought to be, is visible to neighbours or the general public. There is no evidence that the state of the land is a health hazard or a danger or nuisance to anyone or endangers the environment. The Court is loath to make a mandatory order to carry out expensive works unless there is reason to do so and it needs to be a better reason than just flexing the Court's muscle. There may be in existence better reasons than that for ordering restoration of the land here and, therefore, I will not formally refuse that relief. I propose to defer that claim for further consideration on appropriate evidence to support it. I will reserve liberty to the applicant Council to renew the application for that form of relief by Motion on 21 days' notice supported by affidavits. It may then be dealt with by any Judge of the Court available to hear it as a separate claim for additional relief.

I should mention that on 26 November 1987 the Council gave Mr. Wintour notice pursuant to s.99(5) of the Environmental Planning and Assessment Act, 1979 to complete all work pursuant to the subdivision approval granted on 24 November 1981 within 12 months from the date of the notice. That period is almost up. Mr. Wintour did not appeal pursuant to s.99(8) nor had he at the date of the hearing applied under s.99(10) for an extension of the time. The notice clearly and fully pointed out what rights of appeal and application for extension were afforded to Mr. Wintour by the legislation and it was pointed out to him at the hearing that he had to look to his own interests in relation to that matter as the question of any extension of time was not presently before the Court or open to the Court to deal with.

No reason has appeared why the Council should not have its costs against Mr. Wintour. He elected to contest the Council's application and persist in claims on which he has failed. No costs of any substance were saved in respect of the claims for relief which he conceded.

For the foregoing reasons the orders of the Court are as follows:-

1. Orders as asked in paras. 1 and 2 of the Application filed 22 March 1988 amended by inserting the words "by himself his servants and agents" after the word "Respondent" in each case.

2. Declarations as asked in paras. 4 and 5 of the above Application.

3. Order that the Application for the relief claimed by para. 3 be deferred for further consideration with liberty reserved to the Applicant to renew its application for that relief by Motion on 21 days' notice to the respondent supported by affidavits to be brought before any Judge of the Court to be heard as a separate claim for further relief.

4. Order that the respondent pay the applicant's costs of the proceedings.

5. Exhibits may be returned.