Udy v Hornsby Shire Council

[2007] NSWLEC 614

Land and Environment Court

of New South Wales

CITATION:

Udy v Hornsby Shire Council [2007] NSWLEC 614

PARTIES:

APPLICANT
Yelena Udy

RESPONDENT
Hornsby Shire Council

FILE NUMBER(S):

11296 of 2006

CORAM:

Hussey C

KEY ISSUES:

Appeal :- against Section 96 Direction to take preventative action: Remove unauthorised filling that has been placed on the subject property causing possible harm from contaminated material, leaching of pollution into the natural watercourses, destruction of mature trees due to placement of filling and rehabitate area.

LEGISLATION CITED:

Protection of the Environment Operations Act 1997

DATES OF HEARING:

13/09/2007 and 25/09/2007

EX TEMPORE JUDGMENT DATE:

13 September 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr M. Stevens, barrister
Instructed by A R Walmsley & Co

RESPONDENT
Mr T. Howard, barrister
Instructed by HWL Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

13 September 2007

11296 of 2006 Yelena Udy v Hornsby Shire Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

1 This appeal is against a Direction to Take Preventative Action under the provisions of s 96 of the Protection of the Environment Act 1997. The direction applies to unauthorised filling that has been placed on the subject property at 6 Belbowrie Close, Galston. This property is described as Lot 11 DP 810918 and it is partly in the Rural (Br) Small Holdings and Rural Landscapes Zone (about 50%) and the other part is in the Environmental Protection B (River Catchment) Area.

2 The council contends that development consent would be required for any filling in this area but no consent has been granted. Accordingly there are significant concerns about likely environmental harm from this unauthorised filling. This includes possible harm from contaminated material, leaching of pollution into the natural watercourses and the destruction of mature trees due to placement of filling in close proximity to their trunks and root system.

3 The Direction incorporates 10 specified actions for remediation and revegetation of the areas interfered with. The applicant acknowledges that filling has been placed on the upper sections of the land and that was delineated on the view as follows:

Stage I. - which was the initial and upper level filling near the roadway and adjacent to the property access way, this filling has been spread and it has regenerated with some grass cover;
Stage II. - is the second fill area adjacent to Stage 1 and extending to generally around the vicinity of the garage. This filling has been spread and again there is grass cover.
Stage III. - the most recent filling, generally around the perimeter of Stages 1 and II but extending the embankment to the lower, level fire trail. It was observed on the view that some filling had been placed adjacent to a number of trees in Stage III and some of these mature trees are now dead.

4 An associated issue of vegetation removal was raised in connection with the necessity to provide adequate bushfire asset protection zones.

5 Detailed evidence on the matter was presented by:

• Miss R Maiden, council’s environmental protection officer,
• Mr C Martin, council’s arboricultural officer,
• Mr P Lamrock, council’s fire management office.

6 For the applicant, evidence was presented by:

• Mr Caranopolou, consulting environmental science,
• Mr M Jones, bushfire consultant and there were statements from the property owners/occupiers
• Ms Y Udy and Ms D Dee.

7 At the commencement of the proceedings the parties acknowledged ongoing discussions about the extent of the filling, its impacts and possible rehabilitation options. Whilst the applicant considers that the specified actions are unreasonable and that the Direction should be dismissed, nevertheless the applicant acknowledges that the placement of the some of the unauthorised fill and it is prepared to remove portion of this filling.

8 Following the site inspection and consideration of the evidence presented at the view, I understand that the council officers accept that the majority of the fill within Stages 1 and 2 can be retained, that is subject to adequate clearances being given that the material is not contaminated and particularly does not contain asbestos.

9 Under these circumstances, I consider it is reasonable to vary the existing Direction, which requires all the filling material to be removed. Consequently, the respective environmental arboricultural and landscaping engineering experts have conferred further to consider the extent of fill removal and associated rehabilitation. This process has resulted in the revised draft direction, for consideration.

10 I note that there are 10 actions required and I am satisfied that they cover the main matters of concern. I accept that some further detailing work is appropriate to fine-tune the actions and also to impose reasonable timeframes to deal with the various actions. With the investigations already undertaken by the experts so far, they should be in a position to present an agreed timetable for the required work.

11 On this basis, the amended prevention notice details now seem to reasonably cover the removal of fill and restoration of particularly the Stage III area. This prescribes levels to which the unauthorised fill is to be removed and extraordinary care taken in excavating in the vicinity of the trees. Also, the excavation is to be undertaken on the basis of instructions issued by the consulting aborist, again to maintain security of the existing vegetation.

12 I am therefore satisfied that it is reasonable to make a new Direction incorporating final detailing covering the concept details presented. This may require a further site inspection by the appropriate officers to prepare a plan of attachment to the Direction delineating Stages I, II, III. Such plan should clarify the extent of work and identify the trees and associated rehabilitation works.

13 Subject to the finalisation of these details, I intend to make the new Direction after receipt of written submissions on the aforementioned matters by the parties. If there is anything arising, the parties will be notified, otherwise the Direction made in chambers.

1. The appeal is allowed.
2. A revised Direction to Take Preventative Action be issued as set out in Annexure ‘A’.

___________________

R Hussey
Commissioner of the Court
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