Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Environment Protection Authority (No 9)

[2022] NSWLEC 29

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Environment Protection Authority (No 9) [2022] NSWLEC 29

Hearing dates:

28 October, 18, 19, 20, 21, 22 and 25, 26, 27, 28, 29 November, 2, 3, 4, 5, 6 December 2019, 6, 14, 22, 24, 30 April, 5 May, 21 September, 19, 20, 21, 22, 23 and 26, 27, 28 October, 2, 3, 4, 5, 6 November and 13 and 18 November 2020 (further written submissions)

Date of orders:

25 March 2022

Decision date:

25 March 2022

Jurisdiction:

Class 4

Before:

Pepper J

Decision:

See orders at [551].

Catchwords:

CIVIL ENFORCEMENT: whether consent orders made and entered in 2014 can be set aside on the grounds of illegality, improper purpose or contrary to public policy – whether the Court had jurisdiction to make the orders – construction of consent orders – construction of development consent – whether variations to environment protection licence issued by EPA modified the development consent – application of doctrines of res judicata, issue estoppel, Anshun estoppel and abuse of process – whether the Court has statutory or implied power to set aside the consent orders – whether as an exercise of its discretion the Court ought to set aside consent orders – delay – detriment, including to third parties – consent orders not set aside – agreement procuring consent orders not void or voidable for illegality – whether further development consent required to carry out the works the subject of consent orders – no further development consent required – whether development the subject of consent constitutes “development (whether existing or approved)” within the meaning of cl 35 of Sch 3 of the Environmental Planning and Assessment Regulation – meaning of “development (whether existing or approved)” – utility of granting declaratory relief – declaratory relief granted.

JUDICIAL REVIEW: whether variations made by the EPA to an environment protection licence were invalid – whether doctrines of estoppel, res judicata and abuse of process applied to a party not the subject of earlier related proceedings – meaning of “(other than on the initiative of the EPA)” – variations not on the initiative of the EPA but on the initiative of the licence holder – no power to issue the variations because no development consent for the works the subject of the variations as required – variations invalid – whether invalid variations can be severed – invalid variations severed.

Legislation Cited:

Civil Procedure Act 2005, ss 56

Environmental Planning and Assessment Act 1979, ss 1.4, 1.5, 9.45, 76A, 76C, 80(4), 96, 124

Environmental Planning and Assessment Regulation 1994, cl 45

Environmental Planning and Assessment Regulation 2000, cll 35, 37A

Interpretation Act 1987, ss 3(1), 32

Land and Environment Court Act 1979, ss 20(2), 20(2)(c)

Local Government Act 1919, Pt XIIA

Local Government (Council Amalgamations) Proclamation 2016, cl 17

Protection of Environment Operations Amendment Act 2005, item 9 of Sch 1

Protection of the Environment Operations Act 1997, ss 3(e), 45, 50, 58, 88

Protection of the Environment Operations(Waste) Regulation 2014, cl 92

Recovery of Imposts Act 1963, s 2(1)(b)

Uniform Civil Procedure Rules 2005, rr 36.15, 36.16, 59.10

Waste Reduction and Recycling Act 2011(QLD), s 36

Cases Cited:

A v Hayden (No 2) (1984) 156 CLR 532; [1984] HCA 67

Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd [2013] NSWLEC 122

Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103

Anastasiou v Wallace [2020] NSWLEC 14

Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317

Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; [1990] HCA 21

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6

AVS Group of Companies Pty Ltd v Commissioner of Police (2010) 78 NSWLR 302; [2010] NSWCA 81

Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9

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

Beck v Weinstock (2012) 8 BFRA 279; [2012] NSWCA 289

Blacktown City Council v Pearce [2013] NSWLEC 175

Blair v Curran (1939) 62 CLR 464; [1939] HCA 23

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

Botany Bay City Council v Saab Corp Pty Ltd (2011) 82 NSWLR 171; [2011] NSWCA 308

Brown Brothers Waste Contractors Pty Ltd v Pittwater Council (2015) 90 NSWLR 717; [2015] NSWCA 215

Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34

Cando Management and Maintenance Pty Ltd v Cumberland Council (2019) 237 LGERA 128; [2019] NSWCA 26

Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 2) (2010) 172 LGERA 25; [2010] NSWLEC 1

Casa v Ryde City Council (2009) 172 LGERA 348; [2009] NSWLEC 212

CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270

CBRE (V) Pty Limited v Trilogy Funds Management Limited [2021] NSWCA 316

Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; [1988] HCA 21

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

Chief Environmental Regulator of theEnvironment Protection Authority v The Forestry Corporation of New South Wales [2018] NSWLEC 10

City of Sydney Council v Waldorf Apartments Hotel Sydney Pty Ltd (2008) 158 LGERA 67; [2008] NSWLEC 97

Clark v Robards (No 3) [2016] NSWCA 354

Cudgegong Australia Pty Limited v Sydney Metro [2018] NSWCA 298

Cudgegong Australia Pty Ltd v Transport for New South Wales [2018] NSWSC 929

Cutcliffe v Lithgow City Council (2006) 147 LGERA 330; [2006] NSWLEC 463

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12

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

DEXUS Funds Management Limited v Blacktown City Council (No 3) [2011] NSWLEC 230

Director of Public Prosecutions (NSW) v Yigit [2008] NSWCA 226

Discount and Finance Ltd v Gehrig’s NSW WinesLtd (1940) 40 SR (NSW) 589

El Cheikh v Hurstville City Council (2002) 121 LGERA 293; [2002] NSWCA 173

Elanor Investments Limited v Sydney Zoo Pty Ltd (No 5) [2020] NSWLEC 93

Ex parte Amalgamated Engineering Union (Australian Section); Re Jackson (1937) 38 SR (NSW) 13

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

Ford Motor Company of Australia Limited v Tallevine Pty Ltd (as Trustee of the Thornleigh Trading Trust) [2019] NSWSC 1914

Great Lakes CouncilvLani [2007] NSWLEC 681; (2007) 158 LGERA 1

Harvey v Phillips (1956) 95 CLR 235; [1956] HCA 27

Hawkesbury City Council v Sammut (2002) 119 LGERA 171; [2002] NSWCA 18

Hill Top Residents Action GroupInc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6

Hornsby Shire Council v Vitone Devleopments Pty Ltd (2003) 132 LGERA 122; [2003] NSWLEC 272

House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44

Huang v Wong (No 2) [2019] NSWCA 18

Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147

James v Australia and New Zealand Banking Group Ltd [2020] NSWCA 101

JK Williams Staff Pty Ltd v Sydney Water Corporation (2021) 249 LGERA 109; [2021] NSWLEC 23

Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99

Kendell v Carnegie (2006) 68 NSWLR 193; [2006] NSWCA 302

Kouflidis v Corporation of the City of Salisbury (1982) 29 SASR 321

Kuligowski v Metrobus (2004) 220 CLR 363; [2004] HCA 34

Ku-ring-gai Council v Minister for Planning [2008] NSWLEC 174

Lizzio v The Council of the Municipality of Ryde (1983) 155 CLR 211; [1983] HCA 22

Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13

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

Makhoul v Barnes (1995) 60 FCR 572

Marshall Rural Pty Ltd vBasscave Pty Ltd (No 3) [2018] NSWLEC 62

Marshall, Inner West Council v Balmain Rentals Pty Ltd [2019] NSWLEC 24

Maurice Blackburn Cashman v Brown (2011) 242 CLR 647; [2011] HCA 22

Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193

Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154

Mison v Randwick Municipal Council (1991) 23 NSWLR 734

Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council (2010) 210 LGERA 126; [2010] NSWLEC 48

Newcastle City Council v Leaway Pty Ltd [2005] NSWLEC 619

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

O’Connor v State of New South Wales [2017] NSWCA 335

P E Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437

Page v Manningham City Council (2010) 27 VR 642; [2010] VSC 267

Patsalis v Attorney General for the State of New South Wales [2013] NSWCA 98

Pattni v Ali [2007] 2 AC 85; [2006] UKPC 51

Penrith City Council v Dincel Construction System Pty Ltd and Gaonor Pty Limited (OSSM case) [2019] NSWLEC 198

Penrith City Council v Waste Management Authority (NSW) (1990) 71 LGRA 376

Permanent Trustee Co (Canberra) Ltd (Executor estate of Andrews) v Stock & Holdings (Canberra) Pty Ltd (1976) ACTR 45

Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190; [2009] NSWCA 387

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45

Presrod Pty Ltd v Wollongong City Council [2010] NSWLEC 192

Queanbeyan City Council v Sun (No 2) (2013) 195 LGERA 14; [2013] NSWLEC 64

Rafailidis v Camden Council [2015] NSWCA 185

Ralph Lauren Pty Ltd v New South Wales Transitional Coastal Panel (2018) 235 LGERA 345; [2018] NSWLEC 207

Ramsay v Pigram (1968) 118 CLR 271; [1968] HCA 34

Randren House Pty Ltd v Water Administration Ministerial Corporation (No 4) [2019] NSWLEC 5

Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27

Regional Express Holdings Ltd v Dubbo City Council (No 2) [2013] NSWLEC 113

Reysson Pty Ltd v Roads and Maritime Services (No 4) [2016] NSWLEC 159

Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50

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

Settlers Estate Pty Ltd v Penrith City Council (2021) 247 LGERA 84; [2021] NSWCA 13

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

Somanader v Minister for Immigration and Multicultural Affairs (2000) 178 ALR 677; [2000] FCA 1192

St Alder v Waverley Local Council (2010) 172 LGERA 147; [2010] NSWCA 22

Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342; [1987] FCA 127

Telstra Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; [2006] NSWLEC 133

The Owners Strata Plan No 57164 v Yau (2017) 96 NSWLR 587; [2017] NSWCA 341

Timbercorp Finance Pty Ltd (in liquidation) v Collins (2016) 259 CLR 212; [2016] HCA 44

Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28

UBS AG v Tyne as Trustee of the Argot Trust (2018) 265 CLR 77; [2018] HCA 45

Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Verde Terra Pty Ltd (No 2) [2020] NSWLEC 10

Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Verde Terra Pty Ltd (No 3) [2020] NSWLEC 40

Verde Terra Pty Ltd v Environment Protection Authority [2018] NSWLEC 159

Verde Terra Pty Ltd v Environment Protection Authority (No 3) [2018] NSWLEC 161

Victoria v The Commonwealth (1996) 187 CLR 416; [1996] HCA 56

Walton v ACN 004 410 833 Ltd (formerly Arrium Limited) (in liquidation) [2022] HCA 3

Warlam Pty Ltd v Marrickville Council (2009) 165 LGERA 184; [2009] NSWLEC 23

Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170

Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146

Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10; [2004] FCAFC 242

Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710

Texts Cited:

J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane’s Equity Doctrines and Remedies (5th ed) (LexisNexis, 2015)

K R Handley, Spencer Bower and Handley Res Judicata (5th ed) (LexisNexis, 2019)

M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed) (Thomson Reuters, 2019)

Macquarie Dictionary (online ed)

Oxford English Dictionary (online ed)

Category:

Principal judgment

Parties:

Proceedings 2019/101279
Verde Terra Pty Ltd (Applicant/First Cross Respondent)
Central Coast Council (First Respondent/Cross Claimant)
Environment Protection Authority (Second Respondent)
Mangrove Mountain Landfill Pty Ltd (Second Cross Respondent)
Mangrove Properties (NSW) Pty Ltd (Third Cross Respondent)
Proceedings 2019/203552
Central Coast Council (Applicant)
Environment Protection Authority (First Respondent)
Verde Terra Pty Ltd (Second Respondent)

Representation:

Counsel:
Proceedings 2019/101279
P Larkin SC with G Tsang and J Stuckey-Clarke (Applicant)
T Howard SC with M Astill (First Respondent/Cross Claimant)
H El-Hage (Second Respondent)
P Larkin SC with J Stuckey-Clarke and G Tsang (First, Second and Third Cross Respondents)
Proceedings 2019/203552
T Howard SC with M Astill (Applicant)
H El-Hage (First Respondent)
P Larkin SC with J Stuckey-Clarke and G Tsang (Second Respondent)

Solicitors:
Proceedings 2019/101279
Ashurst (Applicant)
MBM Legal (First Respondent)
Proceedings 2019/203552
MBM Legal (Applicant)
Environment Protection Authority (First Respondent)
Ashurst (Second Respondent)

File Number(s):

2019/101279 and 2019/203552

Publication restriction:

Nil

Judgment

TABLE OF CONTENTS

TOPIC PARAGRAPH NO

The Central Coast Council Seeks to Set Aside 2014 Consent Orders [1]

The Development of the Mangrove Mountain Landfill and Golf Course [7]

The 1998 Consent and its Modification [13]

Environment Protection Licence History [42]

The 2012 Proceedings and the 2014 Consent Orders [47]

Events After the Making of the 2014 Consent Orders [82]

Subsequent Litigation [110]

Parties’ Pleadings [121]

VT Proceedings [122]

Prayer 1 [123]

Prayer 2 [125]

Remaining Prayers for Relief Are Abandoned [128]

The Council’s Cross-Summons [132]

The Council Proceeding Pleadings [137]

Issues for Determination in Both Sets of Proceedings [128]

Scope and Application of the 2014 Consent Orders [138(a)]

Estoppel and Related Doctrines [138(b)]

Development Consent [138(e)]

The 1998 Consent [138(g)]

Alterations and Additions [138(h)]

The Council Proceedings Issues [138(m)]

Discretion [138(p)]

Evidence [141]

Legislative Framework [147]

The Operation and Effect of the 2014 Consent Orders on the 1998 Consent (Issues 1 and 7) [153]

The Proper Construction of the 2014 Consent Orders [156]

The Proper Construction of the 1998 Consent [177]

What Development Did the 1998 Consent Authorise? [189]

The 1992 EIS [194]

The 1997 LEMP [208]

Was the Filling Restricted to Area B Under the 1998 Consent? [219]

Effect of the Variations to EPL 11395 [244]

The Volume of Fill in Area B Under the 1998 Consent [253]

The Effect of the Subsequent LEMPs and LMPs on the 1998 Consent [263]

Summary of Findings [270]

What Development is Permitted Under the 2014 Consent Orders? [272]

Are the 2014 Consent Orders Illegal, Irregular or Contrary to Public Purpose? [300]

Rule 36.15 of the UCPR [302]

Implied or Inherent Power of the Court [326]

Discretionary Factors Weigh Against Setting Aside the 2014 Consent Orders or Voiding the 2013 Heads of Agreement [336]

The 2014 Consent Orders Ought Not be Set Aside [359]

Setting Aside the 2013 Heads of Agreement [360]

Estoppel and Related Doctrines (Issues 2 to 6) [366]

Do the 2014 Consent Orders Operate in Rem or in Personam? [369]

Are Estoppel and Related Doctrines Applicable to the 2014 Consent Orders? [380]

Can Estoppel Apply to Exercises of Statutory Power? [387]

Res Judicata [402]

Issue Estoppel [417]

Anshun Estoppel [426]

Abuse of Process [433]

Summary of Findings on Estoppel and Related Doctrines [440]

Was the Development Existing or Approved Development? (Issues 8 to 12) [445]

The Meaning of “Existing or Approved” Development Under Cl 35 of Sch 3 of the EPA Regulations [450]

The Council’s Proceedings (Issues 13 to 15) [464]

Leave to Extend Time (Issue 13) [465]

Estoppel and Related Doctrines Do Not Apply [479]

Are the Variations to EPL 11395 Invalid by Reason of the Operation of s 50(2) of the POEOA? [490]

Proper Construction of s 50(2) of the POEOA [496]

Severance [516]

Discretion (Issue 16) [524]

Discretionary Considerations in Granting Declaratory Relief [526]

The Declaratory Relief Sought in the VT Proceedings [528]

Prayer 1 [530]

Prayer 2 [541]

The Declaratory Relief Sought in the Council Proceedings [544]

Relief [546]

The VT Parties Proceedings and the Council’s Cross-Summons [547]

The Council Proceedings [549]

Costs [550]

Orders [551]

The Central Coast Council Seeks to Set Aside 2014 Consent Orders

1. The present judgment concerns two sets of Class 4 proceedings by the applicant/respondent, Verde Terra Pty Ltd (“VT”) and related parties (“the VT parties”), and the respondent/applicant, the Central Coast Council (“the Council”).

2. This judgment is the culmination of what was described in an earlier decision in both sets of proceedings as a “long running and increasing complex dispute” (Verde Terra Pty Ltd v Central Coast Council; Central Coast Council v Verde Terra Pty Ltd (No 2) [2020] NSWLEC 10 (at [2]). As it transpired, this statement proved to be somewhat of an understatement, even for a dispute the genesis of which predates 2012.

3. Some of the complexity has arisen due to the duration that it took to run the proceedings – over a year – during which time the hearing was the subject of multiple interruptions, numerous applications by the parties, a global pandemic, and other vicissitudes. As may be expected in these circumstances, the issues for determination transmogrified, evidence adduced by the parties was rendered otiose or simply never referred to again, and very belated material changes of position in respect of critical aspects of the case occurred. Nevertheless, it must be acknowledged that the finalisation of this judgment has been the subject of delay.

4. At the heart of the proceedings is whether earlier orders made by the Court pursuant to s 124 of the Environmental Planning and Assessment Act 1979 (“the EPAA”) (now s 9.46 of that Act) which have been entered and in respect of which there was no appeal, can and should be set aside.

5. The orders were made in Class 4 proceedings 2012/40900 that were conducted between 2012 and 2014 (“the 2012 proceedings”) in which the predecessor to the Council, Gosford City Council (“Gosford CC”), was a party.

6. The history and factual background giving rise to the present litigation is detailed below.

The Development of the Mangrove Mountain Landfill and Golf Course

7. The proceedings concern land situated at 1752 Wisemans Ferry Road, Central Mangrove, formerly identified as Lot 584 of DP 809570 (“the land”). At all relevant times, the land has principally been used as a golf course. It is now wholly contained within the boundaries of Lot 582 DP 1123656. At all material times, the land has been leased to Mangrove Mountain Memorial Club Ltd (“MMMCL”).

8. On 3 July 1973 Gosford CC resolved to grant consent under Pt XIIA of the Local Government Act 1919 (“the LGA”), subject to conditions, for the construction of an 18 hole golf course, club house, access roads and parking, together with associated amenities, on Lots 581 and 582 DP 517322.

9. On 4 September 1973 Gosford CC resolved to grant consent under Pt XIIA of the LGA to amended plans for the construction of the golf course.

10. On 3 June 1991 DP 809570 was registered. DP 809570 was a subdivision of Lots 581 and 582 DP 517322. The subdivision created two lots, namely, Lot 584 and Lot 583.

11. On 21 October 1992 G & H Todd Pty Ltd (“G & H Todd”) lodged development application DA 16452 with Gosford CC seeking development consent for the development described as the “Reconstruction of Existing Golf Club to Upgrade to 18 Hole Golf Course” (“the 1992 DA”). The 1992 DA described the existing development on the land as a “9 hole golf course”.

12. On 8 August 1995 Gosford CC resolved to grant a deferred commencement consent to the 1992 DA subject to conditions. And on 5 September 1995, Gosford CC issued a notice of determination of deferred commencement consent in respect of the 1992 DA (“the 1995 deferred commencement consent”). The 1995 deferred commencement consent subsequently lapsed.

The 1998 Consent and its Modification

13. On 16 March 1998 G & H Todd lodged development application DA 23042/1998 with Gosford CC (“the 1998 DA”).

14. The 1998 DA, under the heading “Description of Proposed Work”, identified the “Type of Work” as being “Alteration” and “Other (specify): Remodelling Golf Course”. The “Description of Proposed Development” was described as the “Reconstruction of existing Golf Course to upgrade to 18 hole Golf Course”.

15. The 1998 DA was accompanied by an environmental impact statement (“1992 EIS”) prepared by TGT Consulting Services Pty Ltd, dated 14 October 1992, entitled “Mangrove Mountain RSL Sub-Branch Environmental Impact Statement for the Reconstruction of the Mangrove Mountain Memorial Golf Course, Central Mangrove”.

16. On 6 October 1998 Gosford CC resolved to grant consent to the 1998 DA to remodel the golf course on the land, subject to 47 conditions (“1998 consent”). A notice of determination was issued on 14 October 1998. The instrument of consent was headed “Development Application No 23042 – Proposed Remodelling of Golf Course on Lot 584 DP 809570 Wisemans Ferry Road Mangrove Mountain”.

17. The 1998 consent authorised, among other things, the making of substantial changes to the contours of the land. To effect those changes, the consent authorised the operation of a waste facility on the land for the purposes of enabling the importation of waste as fill. The 1998 consent was in the following relevant terms:

CONDITIONS OF DEVELOPMENT CONSENT

Development Application No 23042 – Proposed Remodelling of Golf Course on Lot 584 DP 809570 Wisemans Ferry Road Mangrove Mountain

1    The operations of the waste facility are to be carried out in accordance with the Landfill Environmental Management Plan prepared by Perram and Partners except where modified by any conditions of this consent and the requirements of any relevant regulatory authority.

2   The operations of the waste facility and the remodelling of the Golf Course is to be carried out in accordance with the Environmental Impact Statement prepared by T.G.T. Consulting Services Pty Ltd except where modified by any conditions of this consent, the abovementioned Landfill Environmental Management Plan and the requirements of any relevant regulatory authority.

3   The applicant shall engage the Central Coast Waste Planning and Management Board to employ a person to oversee the disposal of waste on the site. All costs associated with this employee are to be borne by the Mangrove Mountain Memorial Golf Club.

No fill to be dumped without the presence of the Board officer, and it is a requirement that the applicant advise the Board and the officer well in advance of any proposed dumping of fill.

4   The following information is to be provided to the Central Coast Waste Planning and Management Board during the life of the waste disposal operations:-

a   Information and waste statistics compiled using a computerised system which is compatible with that of the Central Coast Waste Planning and Management Board.

b   Data produced daily and downloaded to the Board by electric means on a weekly basis.

c   A copy of the Section 72 report prepared for the EPA on a monthly basis.

d   A copy of the annual report required under the license conditions and Landfill Guidelines.

…

12   The operator of the waste disposal facility shall develop annual nutrient budgets to prevent excessive fertiliser or effluent applications causing eutrophic conditions developing in dams or watercourses located on or leading from the site. The nutrient budget should incorporate soil assessments to determine soil nutrient accumulation and nutrient absorption levels, and fertiliser requirements which will not leave to nutrient loss from the site. An amended Landfill Management Plan is to be submitted to Council prior to commencement reflecting this requirement.

18. Additional conditions authorised the operation of a “waste facility” or “waste disposal operations” (see, for example, condition 45).

19. It is not in dispute that the development the subject of the 1998 consent was designated development within the meaning of the EPAA.

20. As a consequence, the 1992 EIS was required to accompany the 1998 DA. The 1992 EIS confirmed that the proposed development was for the purpose of a golf course.

21. Section 2.1 of the 1992 EIS described the need for the proposal as the configuration of an 18 hole golf course, with a new clubhouse and relocated greens. Contour lines identified the various earthworks proposed on the land.

22. Section 2.2 of the 1992 EIS stated under the subheading “Project Objectives”:

The primary objective of this proposal is to ultimately provide the Members and Public Players with the best possible course layout and playing conditions, in the most pleasant surrounding at no cost to the Golf Club.

23. Section 2.3 under “Project Description” relevantly stated:

The Executive of the Mangrove Mountain Memorial Golf Club has engaged G. & H. Todd Pty. Ltd., Waste Disposal Contractors and Golf Course Reconstruction specialists, to carry out the reconstruction and reinstatement of the Course to an 18 hole configuration… Plan No. 2 and Model No. 1 show the existing contours of the layout of the remaining 9 holes which are currently played. Plan No. 3 and Model No. 2 show the intended new layout and revised contours.

24. Section 2.6 explained the design relationship between the fairways, the proposed contours, and the mounds between the fairways. Section 2.8.2 stated that the importation of fill material was to occur.

25. Plans forming part of the 1992 EIS (especially Plan 3), identified, among other things, the final landform intended to be achieved, together with approximate areas across the land designated as Zones (or “Areas”) “A”, “B” and “C”, and a collection of mounds in Zone “D”, which were to receive most of the fill. A further area between Zones A and B was identified as the “cut area” where most of the excavation was to take place.

26. Under Section 4.4 of the 1992 EIS the volumes of fill required to carry out the golf course reconstruction were calculated to total 240,000 m³, with amounts of fill for each construction phase specified for Zones A, B, C and D. The nature of the fill material to be imported was described as “selected fill materials from the non-putrescible waste stream…collected by transfer stations within the Sydney Metropolitan area”.

27. A 1997 Landfill Environmental Management Plan (“1997 LEMP”) dated March 1997 and prepared by Perram & Partners, accompanied the 1998 DA but was not a legal requirement of the DA. Initially, the 1997 LEMP was prepared pursuant to the 1995 deferred development consent.

28. The 1997 LEMP was expressly incorporated by reference in conditions 1 and 2 of the 1998 consent.

29. The 1997 LEMP described the development on the land in terms that were the same as those contained in the 1992 EIS. That is, for the purpose of re-modelling the golf course.

30. Sections 1.2 and 1.4 of the 1997 LEMP foreshadowed reviews of the document over time in accordance with section 1.4. Any revised plan was to be forwarded to Gosford CC and the EPA prior to implementing any amendment.

31. There were subsequent Landfill Environmental Management Plans (“LEMP”), notably in 2013, but there is no evidence that these were forwarded to Gosford CC. Therefore, it appears that these revised versions of the 1997 LEMP did not form part of any application to modify the 1998 consent (see further the chronology discussed later in the judgment).

32. The 1998 consent was operative after 28 days in accordance with the provisions of the EPAA.

33. Thereafter, but before 2003, works began on the land pursuant to the 1998 consent. The waste facility became known as the “Mangrove Mountain Landfill” (“MM Landfill”). Over time it has been operated by different entities:

1. from 5 April 2002 to 31 October 2007 by G & H Todd; and

2. from 1 November 2007 to date by VT.

34. On 19 September 2002 Mark Hallinan of Planet Earth Support Company Pty Ltd (“Planet Earth”) lodged an application to modify the 1998 consent with Gosford CC (“the 2002 modification application”). The 2002 modification application described the development approved by the 1998 consent as “Remodelling of Golf Course”. It proposed modification to various conditions (3, 4 and 31) and the deletion of condition 45 of the 1998 consent.

35. On 25 February 2003 Gosford CC resolved to approve the 2002 modification application. And on 11 March 2003 it issued a notice of determination in respect of the 2002 modification application.

36. On 8 April 2008 DP 1123656 was registered. DP 1123656 was a subdivision of Lot 584 DP 809570 and Lot 48 DP 755244, creating Lot 581 and Lot 582.

37. Subsequently, on 6 May 2008 Central Mangrove Waste lodged an application to modify the 1998 consent with Gosford CC (“the 2008 modification application”).

38. On 1 May 2009 Gosford CC approved the 2008 modification application.

39. From 19 August 2014 to 15 September 2014 the registered proprietor of Lot 582 was RSL Custodian Pty Ltd (“RSL”).

40. From 15 September 2014 to the present date, the registered proprietor of Lot 582 has been Mangrove Properties (NSW) Pty Ltd (“Mangrove Properties”).

41. Finally, it is noted that part of the land currently identified as Lot 582 was formerly identified as Lot 584.

Environment Protection Licence History

42. On 2 March 2001 Planet Earth applied to the Environment Protection Authority (“EPA”) under the Protection of the Environment Operations Act 1997 (“POEOA”) for an environment protection licence (“EPL”) (“the 2001 EPL application”). On 21 November 2001 the EPA determined the 2001 EPL application and issued EPL 11395. From 21 November 2001 to 31 October 2007, Planet Earth was the holder of EPL 11395.

43. On 26 July 2002 Planet Earth made an application to the EPA to vary EPL 11395 (“2002 EPL variation application”) and on 11 July 2003 the EPA determined the 2002 EPL variation application and issued Notice of Variation of Licence 11395. EPL 11395 was further varied by the EPA on 5 April 2002, 9 September 2004, and 27 April 2006.

44. Subsequently, on 4 February 2008 the EPA approved a transfer of EPL 11395 from Planet Earth to VT, retrospectively coming into effect on 1 November 2007.

45. On 19 June 2008 the EPA issued Notice of Variation of Licence 11395, which recorded, among other things, the EPA's approval of the transfer of EPL 11395 to VT.

46. On 3 October and 8 December 2008 the EPA issued Notices of Variation of EPL 11395. Likewise, EPL 11395 was further varied by the EPA on 13 May 2009, 29 June 2010, 9 July and 30 August 2010, 7 November 2011 and 3 May 2012.

The 2012 Proceedings and the 2014 Consent Orders

47. In July 2011 Verde Terra (NSW) Pty Ltd, a corporate entity associated with Tony Tartak, purchased all of the shares in VT in the sum of $3 million. According to the VT parties, a principal motivation driving the purchase was that VT had, by that time, procured a contractual right from MMMCL (with consent from the then landowner) to carry out the works contained in both the 1998 consent and EPL 11395. These instruments permitted VT to carry out waste landfilling activities on the land.

48. On 3 September 2012 Gosford CC commenced the 2012 proceedings in this Court against VT and others. The EPA was not a party to those proceedings. By this time, a substantial fill mound was situated in the north-western part of the land in Zone B.

49. The summons relevantly alleged that VT had breached the EPAA by carrying out development on the land otherwise than in accordance with the conditions of the 1998 consent. In particular, it was alleged that the amount of fill imported onto the land exceeded what was permitted under the approval.

50. Prayer 7 of the summons sought injunctive relief expressed as follows:

a.   subject to c. below, cease to threaten or carry out work that is not in accordance with the Consent without having obtained prior development consent according to law; …

c.   do or cause to be done all things and works necessary to remove the stockpiled materials and grade the land, restoring it to the finished land levels in accordance with the Consent to prepare it for its approved use as a golf course in accordance with the Consent (“the Works”). The Works shall include …

i.   Transfer 165,000 m³ of waste material from the waste mound located in Zone B…into…Cell W…

ii.   Transfer 60,000 m³ of waste material from the waste mound located in Zone B…into Zone A…

iii.   Transfer 30,000 m³ of waste material from the waste mound located in Zone B…into the Zone C…

iv.   Transfer 50,000 m³…into the Zone D…

v.   Import 20,000 m³ of clean soil to create the tees and greens…

51. In other words, the relief sought included both a general injunction against carrying out further works outside of the 1998 consent without first having obtained a further development consent, and an exception to the need to obtain approval for certain specified works, namely, reducing the height of the fill mound and using the excess fill to complete the remodelling of the golf course.

52. Although amended versions of the summons and supporting points of claim were later filed, this regime of injunctive relief remained.

53. The 2012 proceedings sought orders for remediation. Gosford CC asserted that the breaches referred to in its pleadings had caused environmental harm, including impacts on surface water and ground water. It further asserted the potential for “additional significant environmental effects” to occur if the mound in Zone B was unstable.

54. The 2012 proceedings were ultimately resolved by consent orders made on 29 August 2014 (“the 2014 consent orders”) following a lengthy period of negotiation between the parties.

55. While the EPA had some involvement in the 2012 proceedings, it was not a party to the 2012 proceedings or the 2014 consent orders, and it was not involved in the negotiation or formulation of the 2014 consent orders prior to their making. Rather, following the commencement of the 2012 proceedings, the EPA was consulted by both VT and Gosford CC regarding iterations of LEMPs and Leachate Management Plans (“LMP”) applicable to the development being carried out on the land by VT, and it provided feedback and comments on both.

56. The EPA did not, however, approve or endorse any version of the LEMP or LMP. It explicitly stated its position to VT on 3 February 2014 in a written communication. A similar letter was sent to Gosford CC on 6 February 2014.

57. VT, Gosford CC, MMMCL and Mangrove Mountain Landfill Pty Ltd (“MML”) participated in a mediation before the Hon Angus Talbot, a former judge of the Court. The mediation precipitated an agreement. Relevantly, on 20 September 2013, Gosford CC, VT, MMMCL and MML entered into a written agreement entitled “Heads of Agreement” (“the 2013 Heads of Agreement”). The then owners of the land, RSL, were also parties to the 2013 Heads of Agreement.

58. The 2013 Heads of Agreement detailed an arrangement to be sanctioned by Court orders involving:

1. VT performing certain works on the land and preparing revised versions of its LEMP and LMP;

2. the EPA issuing a revised EPL 11395; and

3. the golf course being completed within 10 years from the date of the EPA approving the lining of an area known as “Cell W”.

59. The 2013 Heads of Agreement did not express any requirement for VT to obtain a further development consent to carry out these works.

60. On 29 August 2014 Gosford CC, VT and MML made joint written and oral submissions to the Court and proposed the making of consent orders. Neither the joint written or oral submissions, or the consent orders, contained any stipulation for VT (or any other entity forming part of the VT parties) to obtain further development consent before carrying out the works specified by the agreement or proposed in the consent orders.

61. On 29 August 2014 the Court was directed to the pleadings and was provided with a copy of a document entitled Amended Landfill Environmental Management Plan 2013, prepared by Consulting Earth Scientists, dated 4 February 2014 (“the Amended 2013 LEMP”) and three artists’ impressions of the site.

62. The pleadings set out details of the breaches of the 1998 consent relied upon by the Council, including references to existing fill volumes and fill locations which were compared to that which was said to be authorised by the 1998 consent.

63. In the context of explaining a proposed increase in truck movements, the Court was told this was “to enable remediation of the site within a reasonable timeframe”. The Court was told in joint oral submissions that the EPA had approved in principle the Amended 2013 LEMP and a 2013 Land Management Plan (“2013 LMP”) and the further modifications contemplated by the 2014 consent orders, and moreover, that the 2014 consent orders provided “appropriate controls and monitoring”. The joint written submissions noted that the EPA had advised that “the amended LEMP 2013 dated 4 February 2014 is appropriate” and that it set out “certain processes to manage risks that may arise from leachate and to enable regular monitoring”. The Court was also told that the lining of cell W would “be done to best industry practice”.

64. With minor qualification, the pleaded breaches of the EPAA were admitted to by the respondents. The Court was unequivocally told that there was “no dispute” that “breach of the Consent occurred”. The parties’ joint written submissions specifically drew the Court’s attention to the pleadings which set out details of the breaches of the 1998 consent relied upon by Gosford CC, including by reference to unlawful fill volumes and fill locations under the 1998 consent.

65. The qualification was that there was no admission that the breach had taken place as a result of the actions of the current shareholders.

66. The Court was told that works began after 5 April 2002 and from that time up until 31 October 2007, the landfill was operated by G & H Todd. The Court was informed that from 1 November 2007 the landfill had been operated by VT, and that shares in VT were transferred to the current shareholders on 1 July 2011. The admissions of breach therefore related to the period between 5 April 2002 and 1 July 2011.

67. The written submissions set out the connection between the breach and the works contemplated by the putative 2014 consent orders:

There is no dispute between the applicant Council and the first and third respondents [VT and MML] that there has been a breach of the Act and that those parties have reached agreement that would result in the remediation of the site to achieve the following...

68. A range of outcomes were specified and that:

The Consent Orders have been drafted to achieve the outcomes set out above…

69. Thus, the Court was informed of the relevant breaches of the EPAA and the connection between those breaches and the proposed 2014 consent orders.

70. The Court was also told how the works required by the 2014 consent orders compared in nature, scope and purpose to that approved by the 1998 consent. This was described in paragraphs 12 to 23 of the parties’ joint written submissions, including by reference to conditions 1 and 2 of the 1998 consent and its relationship with the 1992 EIS and 1997 LEMP. It was submitted that the 1998 consent had “3 component parts being: 1. An extractive industry … 2. A waste facility …; and (3) Golf course remodelling”.

71. The nature, scope and purpose of the 1998 consent was also referred to in paragraphs 10, 16 and 17 of the pleadings, including that it “authorised part of the Land to be used for the purposes of a “waste facility” and permitted non-putrescible waste to be imported onto the Land to be used for filling and land reshaping”. Further, that “the EIS provided that a total volume of 240,000 m³ of fill would be required to complete the reconstruction of the golf course”. The nature, scope and purpose of the works approved by the 1998 consent was also specifically addressed in the parties’ joint oral submissions.

69. Similarly, the Court was directed to the nature, scope and purpose of the works required by the 2014 consent orders in both the parties joint written and oral submissions, including but not limited to, by reference to volumes and areas.

70. Importantly, the Court’s jurisdiction to make the consent orders was addressed in the submissions, this having been a concern raised by the Court previously. Gosford CC, VT and MML all submitted that the proposed orders were within the powers of the Court under s 124(1) of the EPAA (as it then was).

71. The 2014 consent orders were said to result “in remediation of the site” and also to achieve “appropriate controls and monitoring during the course of the construction of the golf course to minimise risk of environmental harm”.

72. Gosford CC, VT and MML signed the draft consent orders and the Court made orders in accordance with the agreed consent orders on 29 August 2014 as applied for by the parties. The other respondents to the 2012 proceedings did not oppose the making of the 2014 consent orders.

73. The terms of the 2014 consent orders were as follows:

TERMS OF ORDER MADE BY THE COURT

Development Consent DA23042/1998 for the landfill and proposed remodelling of the Mangrove Mountain Golf Course on Lot 584 DP809570, Wiseman's Ferry Road, Mangrove Mountain shall be carried out in accordance with the following and pursuant to s.124 of the Environment Planning & Assessment Act 1979 (as amended):

1.   The first and third respondents are to comply with the terms of the    Amended Landfill Environmental Management Plan 2013 prepared by    Consulting Earth Scientists (CES110703-VDT-AR) (“the Amended LEMP    2013”) subject to order 4 below.

2.    The first and third respondents are to comply with the terms of the    Leachate Management Plan 2013 prepared by Consulting Earth    Scientists (CES110703-VDT-60) (“the LMP 2013”) subject to order 4    below.

3.   The Amended LEMP 2013 and the LMP 2013 referred to in orders 1 and    2 cannot be further altered except to:

(a)    amend the documents to reflect the consequences for a 6m reduction in the Mound on Area B in lieu of a 7.4m reduction, and

(b) subject to subparagraph (a), any future amendment will only occur with the consent of Gosford City Council pursuant to operation of the statutory process available under the Environmental Planning and Assessment Act 1979 (or any equivalent replacement statutory scheme in the future);

4.    Works to be carried out on the subject land in accordance with the Amended LEMP 2013 and the LMP 2013 be as follows, and subject to the following conditions and timeframes:

4.1   6 metres of waste from the fill mound on Area B be moved to    Cell W and a 2.4 metre thick permanent final capping be    placed thereon to result in a maximum height for the final    landform in Area B of RL341.4;

4.2   The removal of waste and capping of the mound on Area B as    set out in subparagraph 4.1 shall be completed no later than    31 August 2017 and otherwise in accordance with the    Amended LEMP 2013;

4.3   The time for completion of the golf course and closure of the    landfill operation will be 10 years from the date of approval of    the lining of Cell W by the Environment Protection Authority of    NSW, and the granting of an amended Environment Protection    Licence No, 11395 to reflect the content of the Amended    LEMP 2013 and LMP 2013, whichever last occurs.

4.4   The contours for the finished level of closure of the landfill and    the golf course are set out in the golf course design by McKay    & Sons Pty Limited which is Appendix III to the Amended    LEMP 2013. The tolerance to the finished levels are plus 0.5    metres and minus 1.5 metres to enable best practice for the    golf course design and are to be adjusted to reduce the Mound    in Area B by 6m not 7.4m as shown, such plans to be    delivered to all parties;

4.5   The total amount of VENM and ENM to be placed over the    whole of the land outside the Regulated Area to construct the    golf course referred to in 4.4 is 1,137,614m³. The operator of    the landfill, and constructor of the golf course, shall deliver a    survey of the whole of the land to Council and the EPA of NSW    every six months until the golf course is completed when a    final survey shall be delivered which demonstrates that there is    1,137,614m³ or less of VENM or ENM on the golf course    outside the Regulated Area in situ.

4.6   The number of truck movements permitted in connection with    the landfill operation and construction of the golf course will be    55 per day on average, and the operator of the landfill shall    report quarterly to Council, on the periods ending 31 March, 30    June, 30 September and 31 December during the operation of    the landfill and the construction of the golf course on the    number of trucks transporting waste, VENM and ENM on a    daily basis;

4.7   The total volume of waste material imported to the site to    achieve the approved golf course design in the 10 years from    the date of approval of the lining of Cell W and approval of the    amended EPL 11395 will not exceed the volume required to fill    1,317,503 m³ of space available for filling with waste, whether    that space comprises void space created by excavations or    whether it comprises air space between the existing ground    level and finished ground levels (excluding capping) in the    Regulated Area in accordance with the approved golf course    design;

4.8    VENM and ENM can be imported to the site for the    construction of the golf course to achieve the approved golf    course design;

4.9    No VENM or ENM can be exported off the site.

4.10    The surveys to be given to the EPA pursuant to EPL no. 11395    shall be delivered to the Council within 7 days of delivery of the    survey to the EPA.

5.   All previous orders as to costs in favour of the first and third respondents    are set aside, but any costs orders made in favour of the 2nd, 4th and 5th    respondents stand.

6.   Otherwise, all parties will pay their own costs of the proceedings.

7.   The Consent Orders hearing set down for 17 October 2014 be vacated.

The Court notes the following:

1.   The space available for filling with imported waste material referred to in    Order 4.7 is to be within the area regulated by the Environment Protection    Authority in accordance with the Environment Protection Licence no    11395 (“the Regulated Area”).

2.   VENM and ENM will be excavated in the Regulated Area, and used both    within and outside the Regulated Area to build the golf course in    accordance with Order 4.4 above.

3.   The estimated waste to be imported to the Regulated Area over the 10    year period is 1,029,299 tonnes. This estimate has been derived from the    average compaction rate of one tonne to 1.28 cubic metres calculated    over the 10 year period at the Mangrove Mountain Landfill from 2003 to    2013.

4.   It is estimated that the lining of Cell W will be completed by 30 April 2015.

77. There was no requirement expressly stipulated in the 2014 consent orders for VT (or any other entity) to obtain further development consent in order to carry out the works specified by the orders.

78. It was not in dispute that prior to the making of the 2014 consent orders, the Council sent its own waste to the landfill on the land.

79. Conditional upon the 2014 consent orders being made, Mangrove Properties purchased the land from the RSL for the sum of $750,000. The transaction was completed on 12 September 2014. Tony Tartak’s stated motivation for the purchase was to give him more control of the subject site (T1006:29-37). Tony Tartak stated that he would not have allowed this transaction to proceed to completion had the 2014 consent orders not been made.

80. The sale transaction itself was precipitated by an approach received by Tony Tartak from a consultant acting on behalf of the RSL in December 2013, shortly after the 2013 Heads of Agreement had been made. The RSL wanted to sell the land because “the RSL is concerned about potential bad press in relation to the landfill and the current Court proceedings, as well as environmental issues created before you came on the scene. The site is a headache. The RSL wishes to sell the site and wants to know if you might be interested in buying it”.

81. The 2014 consent orders were entered on 10 November 2014.

Events After the Making of the 2014 Consent Orders

82. The VT and associated entities responded to the making of the 2014 consent orders by preparing revised versions of the management plans, namely the 2014 LEMP (dated 3 November 2014) and the 2014 LMP (dated 6 November 2014).

83. The 2014 LEMP and 2014 LMP were submitted to the Council under cover of the Hunt & Hunt letter of 7 November 2014. The letter stated:

We refer to the Consent Orders dated 29 August 2014. In conformity with those Consent Orders we served the LEMP 2014 on 6 November 2014 and the LMP 2014 today…

84. The 2014 LEMP and 2014 LMP were not consistent with the 2014 consent orders. First, the final landform and golf course layout proposed under the 2014 LEMP was materially different from the landform and the golf course layout proposed under the Amended 2013 LEMP referred to in the 2014 consent orders. Second, the 2014 LEMP included major landform changes to the non-licensed (or non-regulated) area of the land when compared with the Amended 2013 LEMP. Third, the 2014 LEMP proposed a much greater area and volume of fill in the southern section of the golf course than the Amended 2013 LEMP.

85. The VT parties therefore conceded in Court that there were “differences in the later 2014 documents [2014 LEMP and 2014 LMP] not referred to in the Court orders” (T226:05-19). These changes were acknowledged to go beyond those referred to in order 4 of the 2014 consent orders (T226:15-19). This concession caused the VT parties to amend their points of claim in their proceedings to exclude from the definition of “Magic Mountain Landfill and Golf Course” the changes made by the 2014 LEMP and 2014 LMP.

86. The VT parties acknowledged that the changes to the works described in the Amended 2013 LEMP purportedly effected by the 2014 LEMP and the 2014 LMP did not fall within order 3(a) of the 2014 consent orders. Likewise, they accepted that Gosford CC never formally approved the 2014 LEMP or the 2014 LMP pursuant to order 3(b) of the 2014 consent orders.

87. On 23 September 2015 VT made an application to vary EPL 11395 pursuant to the 2014 consent orders (“the 2015 EPL variation application”). The 2014 LEMP and 2014 LMP were submitted in support of its 2015 EPL variation application.

88. Under the 2015 EPL variation application, VT sought permission to carry out the scheduled activities of waste processing and waste storage. These activities were not previously permitted under EPL 11395. Only landfilling had been permitted.

89. By way of letter dated 23 December 2015, the EPA notified VT that it had assessed the 2014 LEMP, the 2014 LMP and various sub-plans submitted by VT. The EPA stated that additional information was required and set out the issues that needed to be addressed by the provision of more information, including details of the proposed waste processing and waste storage and further required assessment pertaining to water pollution, stormwater, leachate, groundwater and monitoring.

90. On 16 March 2016 Gosford CC wrote to VT indicating that it had received from the EPA a copy of the “LEMP 2014” and that there were details in it that appeared to differ from the Amended 2013 LEMP. The letter went on to say:

The Court Orders required that the development consent DA23042/1998 be carried out in accordance with the LEMP 2013 as amended in the Court Orders.

…

If it is intended that the LEMP 2014 is to be an operational document, if it is inconsistent with the LEMP 2013, the Court Order require that the applicant make an application to Council to amend development consent DA23042/1998.

91. In April 2016, prior to the determination of the 2015 EPL variation application, the EPA’s Environmental Guidelines Solid Waste Landfills, dated 1996 (“the 1996 Landfill Guidelines”) were superseded by a 2016 version of the Landfill Guidelines (“the 2016 Landfill Guidelines”). This was significant because the landfill described in the Amended 2013 LEMP and 2013 LMP was designed to comply with the 1996 Landfill Guidelines and not the 2016 Landfill Guidelines, the latter of which prescribed more demanding minimum standards, including landfill cell lining for general solid waste.

92. The Local Government (Council Amalgamations) Proclamation 2016 came into effect on 12 May 2016, and pursuant to cl 17 “anything done or omitted to be done by a former council and having any force or effect immediately before the amalgamation day continues to have effect as if it had been done or omitted to be done by the new council”.

93. There is no question, therefore, that the acts of Gosford CC are not attributable to the Council by reason of their amalgamation.

94. On 14 June 2016 VT submitted the 2016 LEMP, which was a version of the 2014 LEMP as amended on 14 June 2016, and an accompanying 2016 LMP of the same date, to the EPA.

95. The 2016 LEMP and 2016 LMP proposed the same final landform as proposed under the 2014 LEMP. Changes were made to the 2014 LEMP and 2014 LMP in the 2016 LEMP and 2016 LMP to address the issues the EPA had raised in its letter of 23 December 2015. As was the case with the 2014 LEMP and the 2014 LMP, the 2016 LEMP and 2016 LMP proposed material changes that were not contemplated under the Amended 2013 LEMP and the 2013 LMP.

96. Around September 2016, the EPA commissioned Alan Dyer, a landfill expert, to undertake an independent environmental review of the available documentation relating to the landfill design and operation and its proposed expansion, including the operational management plans. The Technical Environmental and Operational Review Mangrove Mountain Landfill Wisemans Ferry Road, Mangrove Mountain NSW by SLR Consulting Australia Pty Ltd (“the Dyer Report”), was dated 5 May 2017. The Dyer Report stated that the review “is intended to inform the EPA’s licence review process.” The versions of the management plans reviewed in the Dyer Report were the 2016 LEMP and 2016 LMP.

97. In the Dyer Report it was noted that community members and representatives had raised a number of concerns with government entities and the EPA about the appropriateness of the proposed landfill development and its potential negative impact on the environment.

98. Following the publication of the Dyer Report, VT submitted to the EPA further revised versions of the LEMP and LMP, that is, the June 2017 LEMP and 2017 LMP.

99. The EPA wrote to the Council on 21 June 2017, attaching a copy of the Dyer Report and indicating that the EPA had now assessed the latest (June 2017) versions of the LEMP and LMP. The EPA stated that it had determined that it was able to vary the licence in accordance with the latest version of the LEMP and LMP “subject to clarification and conformation from Council that a valid development consent is in place for the proposal”. The letter went on to say:

1.    The EPA notes that the 2017 Plans now differ from the Plans referenced in the 2014 Consent Orders. Therefore, the EPA seeks advice from Council on whether the 2017 Plans can be implemented in accordance with the Consent.

100. The letter specifically referred to certain aspects of the VT proposal as varied by the later versions of the LEMP and LMP which “appear to be inconsistent with the terms of DA 23042/1998, its two subsequent amendments and the 2014 Consent Orders”.

101. The Council replied by way of letter of 8 August 2017, indicating that:

It is now a matter for the operator to secure a development consent for the proposed use, and it remains the Council’s preference and position that the operators seek to achieve that by either a ‘fresh’ development application of s 96 application to modify the existing consent under the Environmental Planning and Assessment Act.

102. On 2 August 2018 VT lodged a second application to vary EPL 11395 (“the 2018 EPL variation application”). The 2018 EPL variation application was in materially similar terms to the 2015 EPL variation application. In support of the 2018 EPL variation application, VT submitted a version of LEMP and LMP as amended at October 2017 (“October 2017 LEMP” and “October 2017 LMP”).

103. The October 2017 LEMP was essentially a duplicate of the Amended 2013 LEMP with additional notations. The front cover was dated “04 February 2014” but has a revision date of “10/10/2017” and contained the note “Addition of Post Submission Note 1: Fill Mount to be reduced by 6 m (not 7.4 m) in accordance with the Consent Orders”. The revision omitted any references to the amendment to the LEMP contained in the 2014 LEMP, the 2016 LEMP or the June 2017 LEMP.

104. The EPA refused the 2018 EPL variation application on 9 August 2018, due to an absence of requisite development consent under s 50(2) of the POEOA and on its merits.

105. The October 2017 LEMP included plans showing the landform prior to amendments made to the landform by the 2014 LEMP and 2014 LMP. That is, it included the superseded version of the Mackay & Sons Appendix III golf course plan. The layout of the golf course shown in that plan reverted to the layout proposed in the Amended 2013 LEMP.

106. On 21 December 2018 VT submitted to the Council a 2018 development application (“the 2018 DA”). The Statement of Environmental Effects accompanying the 2018 DA described the “Need for the Proposal” as for the development of a regional landfill.

107. The 2018 DA was supported by a revised version of the LEMP (dated 18 December 2018) (“2018 LEMP”) and an accompanying 2018 LMP.

108. The landform proposed under the 2018 LEMP was the same as the landform proposed under the 2014 LEMP. The Grinsell & Johns Survey Figure E was identical to the Figure E contained in the 2014 LEMP and the Mackay & Sons Appendix III golf course plan was the same as the version in the 2014 LEMP, except that the contours were displayed on it.

109. Included with the 2018 DA, however, was a plan identifying differences between the 2014 proposed development and the 2018 proposed development, including the construction of two additional large sediment basins with linking overflow channels. The presence of these structures was not reflected in any earlier landform plans.

Subsequent Litigation

110. The EPA had not determined the 2015 EPL variation application as at 31 May 2018, and therefore, VT filed a Class 1 appeal in the Court on that day appealing the deemed refusal of the variation application.

111. On 9 October 2018 Moore J dismissed the appeal, holding that the proceedings were commenced outside of the period within which an appeal from a deemed refusal could be brought (Verde Terra Pty Ltd v Environment Protection Authority [2018] NSWLEC 159).

112. VT filed a Class 1 appeal in respect of the EPA’s refusal of the 2018 EPL variation application on 10 August 2018 (“the 2018 Class 1 appeal”).

113. On 18 October 2018 Moore J delivered a judgment joining the Council as the second respondent to the 2018 Class 1 appeal (Verde Terra Pty Ltd v Environment Protection Authority (No 3) [2018] NSWLEC 161).

114. On 22 November 2018 the Council filed an Amended Statement of Facts and Contentions in Reply contending, among other things, that the EPA, and the Court on appeal, lacked the power to approve the 2018 EPL variation application absent further development consent to carry out the works proposed by the 2018 EPL variation application.

115. Because the Council had not determined the 2018 DA by 1 April 2019, VT also filed a Class 1 application with the Court that day, appealing the deemed refusal of the 2018 DA (“the 2019 Class 1 appeal”).

116. In addition, VT commenced Class 4 proceedings by way of summons filed on 1 April 2019 (proceedings 2019/101279, or “the VT proceedings”).

117. On 1 July 2019 the Council filed a Statement of Facts and Contentions in the 2019 Class 1 appeal contending that the 2018 DA sought consent for designated development or for alterations and additions for a use of the land for which there was no development consent as required.

110. The same day, the Council commenced related Class 4 proceedings by way of summons against the VT parties and the EPA, seeking orders that specified variations to EPL 11395 issued by the EPA be set aside (proceedings 2019/203552, or “the Council proceedings”).

111. Finally, on 26 July 2019 the Council filed a cross-summons to the VT proceedings (“the Council cross summons”), naming MML and Mangrove Properties as the second and third-cross respondents respectively.

112. Since the making of the 2014 consent orders, the VT parties have not accepted any further waste on the land.

Parties’ Pleadings

121. It is useful to examine the parties’ respective pleadings in order to better understand their relationship to each other and to the issues for determination raised by the two sets of proceedings.

VT Proceedings

122. The VT proceedings seek declaratory relief to the effect that no further development consent is required “to carry out the Mangrove Mountain Landfill & Golf Course” and that the development described in the 2018 DA constitutes development “involving alterations or additions”, or is ancillary to development for which development consent (the 1998 consent) has already been granted.

Prayer 1

123. VT parties seek a declaration to the effect that it is entitled to construct and operate the Mangrove Mountain Landfill and Golf Course (“MMLGC”) without any further development consent.

124. It should be noted that the MMLGC is stated in VT parties’ further amended points of claim (“FAPOC”) to have “the meaning referred to in” paragraph 75 of the VT parties’ FAPOC, which is in the following terms:

75   By reason of the matters pleaded above, no further development consent is required by the Applicant under the EPA Act prior to the carrying out of the development (Mangrove Mountain Landfill & Golf Course):

(a)   the subject of the Consent (including as varied as referred to in paragraphs to 28 to 64 and 72 to 74 above); and/or

(b)   required to be carried out in conformity with the 2014 Orders.

Prayer 2

125. Prayer 2 seeks a declaration that the MMLGC constitutes “development (whether existing or approved)” within the meaning of cl 35 of Sch 3 of the Environmental Planning and Assessment Regulation 2000 (“the EPA Regulations”).

126. Clause 35 of Sch 3 of the EPA Regulations effects an exemption from the requirement for an environmental impact statement (“EIS”) where development satisfies certain criteria, including that it is alterations or additions to existing or approved development. The question posed by this prayer is whether there is existing or approved development on the site and if so, what it comprises.

127. It should be noted that even if the VT parties do not require any further development consent to carry out the works identified in the 2014 consent orders, this does not resolve the question of whether these works are approved within the meaning of cl 35 of the EPA Regulations.

Remaining Prayers for Relief Are Abandoned

128. The remaining prayers concerned the 2018 DA (that is, the alterations and additions DA) and the application of cll 35 and 37A of Sch 3 of the EPA Regulations.

129. In the context of the 2018 DA, cl 35 of the EPA Regulations requires that the relevant development must constitute alterations and additions to existing development and that, in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development. In the alternative, cl 37A permits development that is ancillary to other development, namely, the MMLGC, and that is not proposed to be carried out independent of the other development.

130. Declarations were sought in prayers 3 to 5 of the further amended summons to the effect that the 2018 DA constituted alterations or additions, or were ancillary, to the existing development of the MMLGC.

131. During closing submissions, it was agreed that these prayers should not be entertained by the Court in the Class 4 VT proceedings because their determination would involve the Court in a selective fact-finding exercise, without full or proper evidence before it, in circumstances where the legislature had reserved to the consent authority (which this Court was not in the exercise of its Class 4 jurisdiction) the role of determining the 2018 DA. As described above, there are currently extant Class 1 proceedings before this Court concerning the 2018 DA. As a consequence, prayers 3 to 5 for relief were abandoned by the VT parties (see T1347:05 and 1542:30).

The Council’s Cross-Summons

132. If the VT parties are unsuccessful in the VT proceedings, it is, as the parties agreed, strictly not necessary for the Court to consider the cross-summons and the Council’s proceedings.

133. In its cross-summons the Council seeks, among other things, declaratory relief that it was an implied condition that development consent be obtained for the works referred to in the 2014 consent orders, together with an order that the 2014 consent orders be set aside on the basis that they purported to order development that exceeded the jurisdiction of the Court under s 124 (now s 9.46) of the EPAA.

134. Much of the Council’s cross-summons was defensive to the relief claimed in the VT parties’ pleadings. The declarations sought were to the effect that the 2014 consent orders authorised landform modification only to the extent reasonably necessary for the purpose of remodelling the golf course as described in the 1992 EIS and 1997 LEMP and not any subsequent iteration of the LEMP or LMP, including the Amended 2013 LEMP. Accordingly, to carry out the works referred to in the 2014 consent orders further development consent was required. Alternatively, to the extent that the 2014 consent orders purported to permit works pursuant to subsequent versions of the LEMP and LMP absent further development consent being obtained, the 2013 Heads of Agreement procuring the orders were void for illegality, irregularity or were against public policy and/or were frustrated and could not be performed.

135. Consequential injunctive relief was sought by the Council. It did not, however, seek any orders for remediation of the land in the event that the 2014 consent orders were set aside.

136. In points of defence filed 5 September 2019, the VT parties pleaded that the Council was estopped from impugning the 2014 consent orders, including by asserting that development consent is required to carry out the development referred to in those orders. It also pleaded that the Council is statute barred from filing its cross-summons because it is out of time pursuant to r 59.10 of the Uniform Civil Procedure Rules 2005 (“UCPR”).

The Council Proceeding Pleadings

137. In its further amended summons, the Council sought the setting aside of the variations to EPL 11395 granted by the EPA between May 2009 and November 2011 (or at least the relevant amendments made to EPL 11395 with each variation) on the basis that the EPA had purported to authorise the carrying out of controlled development for which the necessary development consent had not been granted pursuant to s 50(2) of the POEOA.

Issues for Determination in Both Sets of Proceedings

138. An agreed list of issues filed by the parties outlined the following matters for determination:

Scope and Application of the 2014 Consent Orders

1. first, what is the effect of the 2014 consent orders including:

1. what development do the 2014 consent orders require and/or permit?

2. whether the 2014 consent orders are to be construed as ordering the development referred therein to be carried out subject to an implied condition that any requisite development consent be obtained first;

3. if the 2014 consent orders, properly construed, impose a requirement that the development is to be carried out without any implied condition to first obtain development consent, whether the 2013 Heads of Agreement of the parties to procure the 2014 consent orders are void for illegality, irregularity or by reason of being contrary to public policy; and

4. whether the 2014 consent orders are void or unenforceable, or incapable of being performed in the absence of any requisite development consent to carry out the works described therein;

Estoppel and Related Doctrines

1. second, whether the principles of estoppel and related doctrines preclude the Council from contending that further development consent is required to carry out the development referred to in the 2014 consent orders;

2. third, whether the principles of estoppel and related doctrines preclude the Council from advancing a case that the provisions of the EPAA requiring development consent for designated development operate as a pre-requisite to the lawful construction and operation of the waste facility that the VT parties propose to construct and operate on the land;

3. fourth, whether the principles of estoppel and related doctrines have any application in these proceedings;

Development Consent

1. fifth, whether any development consent is in force, or is required, under the EPAA to permit the carrying out of development for the construction and operation of a waste facility and landfill on the land, either as described by the 2014 consent orders or that the VT parties propose to construct and operate on the land over a projected operational life a decade;

2. sixth, whether the development that the VT parties claim that they are entitled to carry out on the subject land without further development consent (as pleaded in the further amended summons and the FAPOC) is capable of being adequately defined, and, if so, whether that development has been adequately defined;

The 1998 Consent

1. seventh, what is the proper construction and effect of the 1998 consent, including:

1. whether the 1998 consent permits the construction and operation of the waste facility:

a.   as described by the 2014 consent orders; and/or

b.   that the VT parties propose to construct and operate on the subject land over a projected operational life of approximately 10 years;

2. the purpose (or purposes), nature and scope of the development approved by the 1998 consent;

3. the meaning and effect of conditions 1 and 2 of the 1998 consent, including:

a. whether either or both of those conditions purport to permit variations to the nature and scope of the landform modification and the waste emplacement permitted under the 1998 consent by means of a revised LEMP subsequently promulgated by the beneficiary of the consent and without the need for the 1998 consent to be modified under Pt 4 of the EPAA, and if so, to what extent;

b. whether either of those conditions purports to permit variations to the nature and scope of the landform modification and the waste emplacement under the 1998 consent by reason of the operation of EPL 11395 under the POEOA that was varied by the EPA from time to time, and if so, to what extent; and

c.   if, and to the extent that, either of those conditions purports to have any such effect, whether the condition is invalid and of no effect;

Alterations and Additions

1. eighth, whether the development contemplated under the 2014 consent orders comprises:

1. “existing or approved” development; and/or

2. “other development”,

within the meaning of cll 35 and/or 37A of Sch 3 to the EPA Regulations;

2. nineth, whether the Court can grant the declarations set out in prayers 1 and 2 of the VT parties’ further amended summons given that at least some of the matters referred to in cll 35 and 37A of Sch 3 to the EPA Regulations are matters for the opinion of the consent authority;

3. tenth, whether the 2018 DA can be approved as:

1. “alterations and additions to an existing or approved development”; and/or

2. “ancillary to other development” and “not proposed to be carried out independently of that other development”;

within the meaning of cll 35 and/or 37A of Sch 3 to the EPA Regulations;

4. eleventh, whether the 2018 DA may be approved without an EIS;

5. twelfth, whether VT, unless restrained by the Court, proposes to operate a landfill on the land in breach of the EPAA;

The Council Proceedings Issues

1. thirteenth, whether r 59.10 of the UCPR precludes the commencement of the Council proceedings, and if so, whether the Council should be granted leave to commence its proceedings out of time;

2. fourteenth, subject to the preceding paragraph, whether certain determinations made by the EPA to amend EPL 11395 are invalid and of no effect by reason of those amendments purportedly permitting activities constituting controlled development for the purposes of s 50(2) of the POEOA in circumstances where there is no required development consent in force permitting the development;

3. fifteenth, whether if any of the determinations are invalid, wholly or insofar as the decision or decisions purport to effect particular amendments to EPL 11395, can any of the impugned amendments be severed from the license; and

Discretion

1. sixteenth, whether in the exercise of the Court’s discretion, either party should be denied relief and if so to what extent.

139. The tenth and eleventh issues for determination subsequently became irrelevant in light of the VT parties abandoning prayers 3 to 5 for relief of their further amended summons during closing submissions, as did any reliance on cl 37A of Sch 3 of the EPA Regulations in issues 8 and 9 (T1542:13-19).

140. The parties could not reach agreement on the order of the issues for determination in the proceedings. The issues are therefore dealt with in the order that they were argued before the Court.

Evidence

141. The parties relied on voluminous documentary evidence put before the Court.

142. In addition, the VT parties relied upon the following lay evidence:

1. two affidavits of Tony Tartak sworn 7 February and 31 March 2020;

2. two affidavits of Mary Tartak (Tony Tartak’s wife) sworn 7 February and 31 March 2020; and

3. two affidavits of Damian Ryan affirmed 6 February and 20 October 2020.

143. The following expert evidence was relied upon by the VT parties:

1. the surveying and photogrammetry reports of David Byrne dated 31 July and 25 October 2019;

2. a joint surveying report by Byrne and Erik Birzulis dated 11 November 2019 (“the joint surveying report”);

3. the reports of Dr Ronald Rowe, a civil engineer (geotechnical and geoenvironmental), dated 26 July and 3 October 2019;

4. joint engineering reports of Dr Rowe and James Mackenzie dated 13 and 25 November 2019 (“the joint engineering reports”);

5. the quantity surveying report of David Lawson dated 5 February 2020;

6. the joint quantity surveying evidence of Lawson and David Madden dated 7 April 2020 (“the joint quantity surveying evidence”);

7. a desktop Mangrove Mountain hydrogeological review of cell W dated April 2013 by Rod Harwood, a hydrogeologist;

8. a forensic accounting report by Dr Rodney Ferrier dated 31 March 2020; and

9. a joint forensic accounting report by Dr Ferrier and Nicholas Gaudion dated 10 July 2020 (“the joint forensic accounting report”).

144. The Council relied on cognate expert reports from:

1. Erik Birzulis, a registered surveyor, dated 17 September 2019;

2. the joint surveying report;

3. Mackenzie, a civil engineer, dated 20 September 2019;

4. the joint engineering reports;

5. David Madden, a quantity surveyor, dated 18 March 2020;

6. the joint quantity surveying evidence;

7. the forensic accounting evidence of Gaudion dated 20 March 2020; and

8. the joint forensic accounting report.

145. It also relied upon two lay affidavits from:

1. Rebecca Dixon, a partner at Ashurst (the legal representative of the VT parties), affirmed 23 October 2019; and

2. Martin Ball, the solicitor for the Council, sworn 25 October 2019.

146. The Court visited the land on 22 November 2019. During the site visit it inspected the golf course, the mound of waste, the excavation comprising cell W, various stormwater and leachate ponds, and observed pegs marking out the locations of proposed cells X, Y and Z. The Court’s attention was specifically drawn to the landform proposed by the 1992 EIS, the 1997 LEMP, the Amended 2013 LEMP, the 2014 LEMP and the 2018 LEMP. As the Court summarised, the site was characterised as having “a large hole and a large mountain of waste” (T1365:32-33).

Legislative Framework

147. It is useful to set out the legislative framework governing the disposition of the issues raised by the two sets of proceedings (with the exception of the abandoned tenth and eleventh issues).

148. Section 76A of the EPAA relevantly states (now s 4.2):

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, and

(b)   the development is carried out in accordance with the consent and the instrument.

(2)   For the purposes of subsection (1), development consent may be obtained:

(a)   by the making of a determination by a consent authority to grant development consent, or

(b)   in the case of complying development, by the issue of a complying development certificate.

149. The Div in which s 76A is located is “subject to the other provision of this Act, unless express provision is made to the contrary” (s 76C of the EPAA), which includes s 124.

150. Section 124 of the EPAA is in the following relevant terms:

124    Orders of the Court

(1)   Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.

(2)   Without limiting the powers of the Court under subsection (1), an order made under that subsection may:

(a)   where the breach of this Act comprises a use of any building, work or land—restrain that use,

(b)   where the breach of this Act comprises the erection of a building or the carrying out of a work—require the demolition or removal of that building or work, or

(c)   where the breach of this Act has the effect of altering the condition or state of any building, work or land—require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed.

…

(4)   The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court.

(5) Nothing in this section affects the provisions of Division 3 of Part 3 of the Land and Environment Court Act 1979.

151. Clause 35 of Sch 3 of the EPA Regulations provides:

35   Is there a significant increase in the environmental impacts of the total development?

Development involving alterations or additions to development (whether existing or approved) is not designated development if, in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development (that is the development together with the additions or alterations) compared with the existing or approved development.

152. Finally, ss 50 and 58 of the POEOA concerning the licencing of development controlled under the EPAA and the variation of such licences relevantly state:

50   Timing of licensing of development requiring consent under EP&A Act

(1)    Licensing of development controlled under EP&A Act This section applies to development that cannot be carried out without development consent under the Environmental Planning and Assessment Act 1979. This development is called controlled development in this section.

(2)    Licence to be concurrent A licence that relates to controlled development must not be granted or varied (other than on the initiative of the EPA) by the appropriate regulatory authority, unless development consent has been granted for the controlled development. However, this section does not prevent the consideration of a licence application by the appropriate regulatory authority before development consent is granted.

480. As stated above, the categories of abuse of process are not closed. There may be an abuse of process where a later set of proceedings does not involve precisely the same parties as the initial proceedings. This can include circumstances where the same plaintiff sues a defendant in a second set of proceedings that has either already been sued or is related to, or associated with, the successful defendant in an earlier set of proceedings (CBRE (V) Pty Limited v Trilogy Funds Management Limited [2021] NSWCA 316 at [20]).

481. The issues arising in the Council’s proceedings, although overlapping, cannot be regarded as sufficiently similar with respect to the subject-matter and the parties in the 2012 proceedings. On no view can it be said that the Council’s conduct in commencing the Council proceedings was so unreasonable and that the continuation so unjustifiably oppressive to the VT parties that it brings the administration of justice into disrepute. No abuse of process arises.

482. Finally, in circumstances where the EPA was not a party to the 2012 proceedings and no time limit applies to the commencement of the Council proceedings for the reasons given above, the proceedings do not give rise to an abuse of process on the basis of the effluxion of time between the granting of the variations and the filing of the summons in the Council’s judicial review application.

Are the Variations to EPL 11395 Invalid by Reason of the Operation of s 50(2) of the POEOA?

490. The Council contends that the variations to EPL 11395 made by the EPA on 13 May 2009, 29 June, 9 July, 30 August 2010 and 7 November 2011 (“the variations”) are invalid by reason of the operation of s 50(2) of the POEOA.

491. It was uncontentious that EPL 11395 relates to a “controlled development” within the meaning of the provision.

492. In short, the Council submits that because there was no development consent in force permitting the development the subject of the applications to vary EPL 11395 in force at the relevant time, the EPA lacked the statutory power to vary the EPL. That is, there was no satisfaction of the jurisdictional fact necessary to enliven the power contained in s 50(2) of the POEOA. This is so notwithstanding the extant nature of the 1998 consent because:

1. the scope and the extent of the development contained in the improved variations to EPL 11395 far exceeded that approved by the 1998 consent (for example, the variations made provision for the excavation of cells W, X, Y and Z for the emplacement of 1 million m³ of general solid waste (non-putrescible) in circumstances when the volume of waste permitted to be received onto the land by the 1998 consent had already been exceeded); and

2. the nature of the development contained in the variations to the EPL was different to that approved in 1998 insofar as it constituted development for the purpose of a waste disposal facility in its own right.

493. For the reasons given earlier in the judgment (at [244]-[262]), I find that that no consent has been given for the works proposed by the VT parties in the impugned EPL 11395 variation applications. This was not cured by the Court making the 2014 consent orders. In making those orders the Court was not granting development consent to the works contained in those license variations. Nor did the EPA grant consent to the works the subject of the variation applications. It had no power to do so under either the EPAA of the POEOA. The variations are therefore invalid on this basis.

494. Because the Court has held above in the VT proceedings that the variations to EPL 11395 did not have the effect of modifying the 1998 consent through the mechanism of the operation of conditions 1 and 2, as that consent is properly construed, it is not strictly necessary to determine the issues raised by these proceedings.

495. However, if the Court is wrong, it is necessary to consider the VT parties’ submission that the operation of the words “(other than on the initiative of the EPA)” were sufficient to render the variations to the licence valid.

Proper Construction of s 50(2) of the POEOA

496. The Council asserted in its pleadings that each of the impugned notices of variation are invalid. However, as the EPA submitted, correctly in my view, the relevant issue is the validity of the specific amendments under review. For the purpose of s 50(2) of the POEOA a variation includes “attaching…a condition to a licence, the substitution of a condition, the omission of a condition or the amendment of a condition” (s 58(2)).

497. It is necessary to have regard to the proper construction of the words “(other than on the initiative of the EPA)”.

498. It was item 9 of Sch 1 of the Protection of Environment Operations Amendment Act 2005 that inserted the words “or varied (other than on the initiative of the EPA)” into s 50(2) of the POEOA. Neither the second reading speech of the Protection of the Environment Operations Amendment Bill 2005 nor the accompanying explanatory notes are, however, of assistance in the construction of the present provision.

499. The words in parentheses in s 50(2) qualify the term “varied”, not “grant”. This means that s 50(2) empowers the EPA to vary an EPL on its own initiative but does not empower it to grant a licence. The language in s 50(2) may be contrasted with s 58(3) that expressly provides for a licence to be varied either upon an “application by the holder of the licence or on the initiative of the appropriate regulatory authority”.

500. In the case of a “controlled development” such as the one in question, s 50(2) permits the EPA, acting on its own initiative, to vary an EPL to regulate a particular use of the land the subject to the licence notwithstanding that development consent has not been granted for that use. This power is, however, constrained in two ways.

501. First, the power is not available unless the variation is at the initiative of the EPA. The VT parties sought to argue that it was sufficient if the variation was at the initiative of both the EPA and the licence holder.

502. In my view, again as correctly submitted by the EPA, “on the initiative of” means a variation of an EPL solely on the initiative of the EPA without any request or application from the licence holder. Were it otherwise, those words would have little, if any, work to do.

503. This interpretation is harmonious with the ordinary meaning of the expression “initiative”, which is defined in the Oxford English Dictionary (online ed) to mean, “that which initiates, begins, or originates; the first step in some process or enterprise”. The Macquarie Dictionary (online ed) had a similar definition, viz, “an introductory act or step; leading action”.

504. Such a construction is also in conformity with the statutory context, especially s 58(3) of the POEOA which distinguishes between the variation of an EPL following an application by the licensee or on the initiative of the “appropriate regulatory authority”.

505. And moreover, as the EPA observed, it would be “a rare circumstance” for it to act on its own initiative to vary an EPL to authorise a particular use of the land that would otherwise require development consent under the EPAA but where none had been obtained. This is because, first, s 45 of the POEOA requires the EPA in determining whether to approve an application to vary an EPL to take into consideration any relevant environmental impact statement or other statement of environmental effects prepared by an applicant under the EPAA. Consideration of such material is likely to include consideration of the terms of a development consent granted in connection with those documents (which are prepared for this purpose). Second, the EPA is likely to be cognisant of the need to ensure consistency in decisions regarding the use of land and to avoid conflicting permissions in respect of that use (see s 3(e) of the POEOA).

506. In the present case, an examination of the documentation relating to each of the variations challenged by the Court does not establish that the relevant variations were sought at the initiative of the EPA. On the contrary, the variations were uniquely and unequivocally at the initiative of VT. That is, the EPA made the variations to EPL 11395 in response to a proposal or request made by VT and in the context of information provided by VT in connection with such an application. It follows that none of the impugned variations were made on the “initiative of the EPA” for the purpose of s 50(2) of the POEOA.

507. The VT parties invoked, erroneously in my view, the principle of regularity to argue that it was incumbent upon the Council to negative the possibility that the EPA relied upon the power conferred by s 50 of the POEOA to approve the variations to EPL 11395 on its own initiative, even in the absence of any evidence to this effect, and that the EPA has not done so.

508. The principle of regularity was explained in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 (at 164):

Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to that office … R v Brewer (1942) 66 CLR 535 at 548 … And a council which must form an opinion as to whether there will be any detriment upon the granting of a planning permit is presumed to have formed the opinion before granting the permit: Pearce v City of Coburg [1973] VR 583.

509. The presumption is rebuttable and arguably applies to matters of both form and substance in the following way (Darley Australia Pty Ltd v Walfertan Processors Pty Ltd (2012) 188 LGERA 26; [2012] NSWCA 48 at [114]-[118]):

114   The presumption of regularity has been described as both a “rebuttable presumption of law” (JD Heydon, Cross on Evidence (LexisNexis, 2002), at [1175]) and “a presumption of fact, associated with a reasonable inference based on what ordinarily happens in the ordinary course of human affairs” (Hill v Woollahra Municipal Council (2003) 127 LGERA 7 at [52] per Hodgson JA (Ipp JA and Davies AJA agreeing)), whose “natural home…is public law”: Natural Resources, Minister for v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164; 62 LGRA 409 at 418 per McHugh JA.

115   The presumption of regularity has also been described as one which “arises from the ordinary course of business”, being “a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act”: McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 at 850 per Griffith CJ (Barton and O’Connor JJ agreeing), citing KnoxCounty v. Ninth Nat Bank of City of New York 147 US 91 (1893). In Natural Resources, Minister for v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164; 62 LGRA 409 at 418 McHugh JA explained its operation in the public law context as follows:

Where a public official or authority purports to exercise a power or to do an act in the course of his duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.

116   In deciding whether the presumption of regularity is rebutted, the inference from the ordinary course of human affairs carries some weight which may vary according to the proved circumstances: Hill v Woollahra Municipal Council (2003) 127 LGERA 7 at [52]. In this respect, in my view, Windeyer J’s remarks in Brickworks Ltd v Warringah Corporation remain cogent: The giving or refusing of a consent, as required by the Ordinance, was an important discretion entrusted to the Council as the “responsible authority”. It is not to be assumed that the Council and its officers neglected their duties or discharged them in a perfunctory manner.

117   There is authority to the effect that the presumption of regularity applies “only to matters of form, rather than of substance”, a proposition which may not be consistent with earlier decisions of this Court: see the discussion in GPT RE Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647 at [82] per Basten JA (Bell JA and Young CJ in Eq agreeing). Such authority would also be inconsistent with Brickworks Ltd v Warringah Corporation in which the presumption of regularity was applied to conclude that a council had given consent for land to be used to extract minerals.

118   The presumption of regularity was considered capable of applying to the issue whether development consent had been given, or its validity, in Baiada and Ashfield Municipal Council v Armstrong (2002) 122 LGERA 105. Indeed, Powell JA, who dissented in Baida, held (at [97]-[117]) that the presumption could be invoked to demonstrate development consent had been given. I proceed accordingly on the basis that Walfertan was entitled to call the presumption of regularity in aid.

510. Application of the presumption therefore does not assist the VT parties. Rather, the question is one of evidence and, as stated above, the evidence plainly discloses that the variations were sought and obtained exclusively at the initiative of the VT parties, and not the EPA. This finding is sufficient to dispense with any issue raised by the parties as to who bore the onus of proof under s 50(2) of the EPAA; the evidence renders the question moot.

511. The second constraint on the exercise of the power contained in s 50(2) of the POEOA is that it is unavailable where the proposed variation authorises a significant increase in the environmental impact of the activity that would be authorised by the proposed variation and that this has not been the subject of environmental assessment and public consultation under the EPAA (see s 58(6)).

512. These are jurisdictional facts the existence of which are preconditions to the exercise of the power. The second limitation on the exercise of the power is significant because it applies irrespective of whether or not the application to vary the EPL is made by the licence holder or on the initiative of the EPA. Thus in Dungog Basten JA opined that (at [182], footnotes omitted):

182 There are a number of statutory indications that the requirements in s 58(6) of the 1997 Act are jurisdictional facts, review of which is not limited to consideration of the opinion of the EPA. First, the structure of the Act is such as to separate out the preconditions for the exercise of the power to grant or vary a licence from the factors to be taken into account in exercising those functions. Thus, s 50, s 58(6) and s 59 identify criteria of engagement of a power, not factors to be taken into account in the exercise of the power. None of those provisions is expressed to depend upon the opinion of the EPA. By way of contrast, other provisions of the 1997 Act are so expressed. The comparison suggests that the legislature was attuned to the difference in approach and, where it intended that a matter should be determined by the EPA, it said so. It did not say so with respect to the matters identified in s 50(2) or s 58(6).

513. In the same decision Preston J stated (at [342]):

342 As a matter of fact, the proposed licence variation had not been the subject of environmental assessment and public consultation under the EPA Act, being the jurisdictional fact in s 58(6)(b) of the POEO Act. It mattered not, contrary to the appellants’ argument, that the development the subject of the 1991 consent had been the subject of environmental assessment and public consultation under the EPA Act. That development was not the development that would be authorised by the proposed licence variation. It is the development that would be authorised by the proposed variation of the EPL, with its significantly increased production capacity and environmental impacts, that needed to be the subject of environmental assessment and public consultation under the EPA Act. That development, however, had not been the subject of such environmental assessment and public consultation.

514. Were it necessary to decide (in the light of the conclusion reached above concerning who initiated the variations, it is not), an examination of the variations reveal that they sought to authorise a significant increase in the environmental impact of the activity being carried out on the land in circumstances where, which was not in dispute, there had been no environmental assessment and public consultation under the EPAA. In other words, the variations were not permitted pursuant to s 58(6) of the POEOA.

515. For these reasons, the power contained in s 50(2) of the POEOA had not been properly enlivened at the time the variations were determined by the EPA and they are invalid.

Severance

516. The issue of severance arises given the Council’s challenge to the validity of each notice of variation. Because the Court has found that the variations to EPL 11395 are invalid, the question that follows is whether the Court can sever any of the invalid amendments to the licence.

517. The VT parties contended that the variations could not be severed because they related to “the heart of the operation the subject of” EPL 11395, namely, landfilling, the excavation of the cells, and all necessary preparatory works to these activities. Severing these conditions would, in the submission of the VT parties, result in an EPL that was in disconformity with subsequent development on the land with the result that EPL 11395 as varied up to and including the variations made on 8 December 2008 would remain extant.

518. The offending conditions may be severed from EPL 11395. There are several reasons why this is so. The first is the application of s 32 of the Interpretation Act 1987. EPL 11395 is an “instrument” for the purposes of the Interpretation Act (see the definition of that term in s 3(1) of that Act and, by analogy, authorities such as Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (No 2) (2010) 172 LGERA 25; [2010] NSWLEC 1 (authorisation under the Mining Act 1992) and Chief Environmental Regulator of theEnvironment Protection Authority v The Forestry Corporation of New South Wales [2018] NSWLEC 10 (licence issued under Pt 6 of the Threatened Species Conservation Act 1995)).

519. Section 32 of the Interpretation Act provides that EPL 11395 is to be construed so as to not exceed the power conferred by the enactments under which it is made (namely, the POEOA). That is, the Court may read down an instrument so that it is within power to preserve its validity to the extent possible:

32   Instruments to be construed so as not to exceed the powers conferred by the Acts under which they are made

(1)   An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made.

(2)   If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made:

(a)   it shall be a valid provision to the extent to which it is not in excess of that power, and

(b)   the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.

(3)   This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made.

520. Section 32 applies to an instrument part of which is within power and part of which is not (s 32(2) of the Interpretation Act. It is not, however, engaged when there is no power to make the instrument: El Cheikh v Hurstville City Council (2002) 121 LGERA 293; [2002] NSWCA 173 at [38]).

521. Accordingly, s 32 may be applied to read down an instrument provided that the operation of the remainder of the instrument remains the same (Director of Public Prosecutions (NSW) v Yigit [2008] NSWCA 226 at [26]). However, s 32 cannot be applied to read down an instrument where, upon its proper construction, it is clear that the instrument was intended to operate fully and completely according to its terms or not at all (Victoria v The Commonwealth (1996) 187 CLR 416; [1996] HCA 56 at 501-503 and El Cheikh at [39]-[40]).

520. Therefore, pursuant to s 32 of the Interpretation Act EPL 11395 must be read down so that it is within power by excising from the licence the conditions and amended conditions inserted into the EPL by the invalid variations (see those listed in the further amended summons in the Council’s proceedings).

521. There is no question that the remainder of EPL 11395 is not within power or that there was no power to issue the licence. Nor can it be said that the removal of the invalid conditions will impermissibly alter the EPL’s intended operation or render it inoperative. There is nothing in the construction of EPL 11395 that means that the licence was intended to operate with these variations or not at all (Victoria v The Commonwealth at 501-503 and El Cheikh at [39] and [40]).

Discretion (Issue 16)

524. Discretion is relevant in three respects in both sets of proceedings:

1. first, whether to set aside the 2014 consent orders;

2. second, whether to allow time to be extended under r 59.10 of the UCPR assuming that the rule applies to the Council’s proceedings; and

3. third, whether to make the declarations sought by the VT parties and the Council in their respective sets of proceedings.

525. The discretionary factors that are applicable to the resolution of all three matters have been considered at length above (at [336]-[358]) and are not repeated here.

Discretionary Considerations in Granting Declaratory Relief

526. It was not a matter of controversy that the Court has a discretion as to whether or not to make the declarations sought by the parties in their respective summonses.

527. Both parties submitted that the Court ought to refuse to grant the declaratory relief sought by the other party in their respective proceedings on discretionary grounds.

The Declaratory Relief Sought in the VT Proceedings

528. The Council repeated its earlier arguments with respect to discretion emphasising, in particular, that there was no utility in granting the declarations sought by the VT parties in respect of prayers for relief 1 and 2 because time for compliance with the 2014 consent orders had passed.

529. The Court repeats its findings with respect to discretion for present purposes. This means that I do not accept that relief should be denied to the VT parties on discretionary grounds. Amplification of this conclusion in provided below.

Prayer 1

530. In respect of prayer 1, the Council submitted that because it is not possible for the Court to understand the meaning and effect of the declaration sought in prayer 1 of the VT parties’ further amended summons by reason of the convoluted nature of the definition of MMLGC at paragraph 75 of the FAPOC, it is not possible to make the declaration sought.

531. The Court accepts that, as defined in the FAPOC, the precise meaning of the MMLGC development is opaque, however, the VT parties clarified the meaning of the definition during oral argument (T1376:44-49) so that prayer 1 need only be read with paragraph 75(b) of the FAPOC (although no formal amendment was sought). Accordingly, the VT parties now seek a declaration in the following terms:

No further development consent is required by the Applicant to carry out the development required to be carried out in conformity with the 2014 orders.

532. A declaration in these terms would, the VT parties argued, be sufficiently clear and would be consistent with the relief granted by the Court in Anastasiou (at [62]):

62   The Court declares that:

(1)   Works carried out by the Applicants in early 2018 to install a ventilation unit on the roof of the building located at 43-45 North Steyne Manly New South Wales pursuant to orders made by this Court on 16 October 2015 in proceedings no 41040 of 2011 did not require the grant of development consent by the Fifth Respondent in order for those works to be lawfully carried out.

(2)   The further works relating to the installation of a ventilation unit on the roof of the building located at 43-45 North Steyne Manly New South Wales required to be carried out by the Applicants pursuant to orders made by this Court on 9 May 2019 in proceedings no 291412 of 2017 may lawfully be carried out without first obtaining the grant of development consent by the Fifth Respondent…

533. The Council argued that the uncertainties inherent in the 2014 court orders rendered them incapable of being the subject of the declaratory relief framed above because of the reference in those orders to the subsequent version of the Amended 2013 LEMP and 2013 LMP, which meant that the scope of the development described in those orders was uncertain.

534. Properly construed (see above), the 2014 consent orders are sufficiently certain. The orders specify the limits of the remedial works to be undertaken (see the prescription in order 4). In addition, as the VT parties submitted, the unchallenged evidence of Byrne was that the volume of waste required to be removed from mound B was 62,727 m³. There is nothing uncertain about this calculated amount.

535. In my view, the declaration should be made in the terms proposed by the VT parties during oral argument (that is, adopting and adapting the language and structure of the declarations made in Anastasiou, rather than the terms of the declaration sought in the VT parties’ further amended summons). The reasons are two-fold. First, merely because the Council now conceded that, as a matter of principle, no further development consent is required to carry out the 2014 consent orders, is not an impediment to the granting of the declaratory relief sought by the VT parties. The concession does not render the relief inutile. As Biscoe J stated in Cutcliffe v Lithgow City Council (2006) 147 LGERA 330; [2006] NSWLEC 463 (at [20]):

20   In my view, in cases involving development consents, generally it would be unjust to an applicant to deny declaratory relief merely because the respondents elect not to oppose it, regardless of the merit of the applicant’s case. As Zamir and Woolf, The Declaratory Judgment (3rd ed, 2002) p 129 point out,

… there is nothing particular about the nature or consequences of declaratory relief which calls for extraordinary caution. On the contrary, not being coercive relief, it is less harmful, potentially, than other remedies, notably injunctions and specific performance. Extreme caution is both unnecessary and undesirable. On the other hand, care is needed, not only to avoid indiscriminate and unjustified use of the declaratory power, but also to prevent declaratory actions from being dismissed and the scope of the remedy being unduly restricted out of extreme caution.

536. Second, the Council’s further concession (again made in closing submissions) that a remedial order made pursuant to an exercise of the Court’s power under s 124 of the EPAA “ostensibly authorised” development in accordance with the Amended 2013 LEMP and 2013 LMP was qualified insofar as the Council did not accept that the making of the 2014 consent orders was “within jurisdiction” (T1354:08-1356:44, 1358:12-19, 1324 and 1326:02-16). It was, therefore, a concession of limited value.

537. The principles relating to the granting of declaratory relief are well established (Marshall Rural Pty Ltd v Basscave Pty Ltd (No 3) [2018] NSWLEC 62 at [25]-[30]).

538. In Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1 Preston J considered the Court’s position in relation to the making of declarations albeit in civil enforcement proceedings. He relevantly held that although the Court had jurisdiction to make declarations where the respondents had breached planning and environmental statutes, on the facts before him, as a matter of discretion, a declaration would not be appropriate because, first, the making of a declaration would not have any practical effect in the circumstances; second, declarations of breach are not necessary in order for the Court to have jurisdiction to make orders, including injunctive orders; third, a declaration of breach by itself neither remedies past breaches nor restrains future breaches; fourth, care must be taken not to use a declaration as a substitute for criminal prosecution; and fifth, while a legitimate purpose of proceedings (in that case civil enforcement proceedings) is for there to be a finding by the Court and through its judgment, a public pronouncement that a breach of the law has occurred, this effect can be equally achieved by the Court making findings in its judgment which is a public document.

539. His Honour’s remarks have been considered in subsequent cases (Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6, Marshall, Inner West Council v Balmain Rentals Pty Ltd [2019] NSWLEC 24 and Penrith City Council v Dincel Construction System Pty Ltd and Gaonor Pty Limited (OSSM case) [2019] NSWLEC 198).

540. I have considered the principles in Lani, Hilltop (No 4), Inner West and OSSM. In my view, the mere pronouncement of this judgment alone would not constitute sufficient relief and the declaration sought ought be made. This is because the making of the declaration unequivocally resolves one of the principal controversies arising in the VT proceedings, a controversy that until final submissions was still being actively pursued by the Council. The declaration sought does not possess the vice of imprecision, on the contrary, it provides finality and certainty in the determination of this litigation which assists in achieving justice. Viewed this way, there is every utility in making the declaration sought above by the VT parties in respect of the prayer 1 for relief.

Prayer 2

541. During the course of argument, the Court expressed reservations about making a declaration in these proceedings in the form sought in prayer 2 which would affect the separate but extant 2019 Class 1 proceedings concerning the 2018 DA. The Court was concerned that to do so could amount to it impermissibly answering a hypothetical questions or give advisory opinions (Bass at [45]-[47]) because the declaratory relief was not necessary to quell the controversy arising in the VT proceedings.

542. In light of the conclusion reached above by the Court about the success of this prayer for relief, any issue concerning the ability, or the utility, of the Court granting relief in respect of prayer 2 need not been determined.

543. It suffices to make the following observations. First, I agree with the VT parties that, prima facie, the Court has jurisdiction to make the declaration under s 20(2)(c) of the Land and Environment Court Act. Second, there is a real and not hypothetical controversy between the parties relating to the legal status of the MMLGC as a result of the making of the 2014 consent orders insofar as the VT parties contend that the development the subject of those orders does not require any further development consent and that it therefore constitutes “development (whether existing or approved)” within the meaning of cl 35 of Sch 3 of the EPA Regulations. Third, the Court arguably has the jurisdiction to make declarations in Class 4 that are in truth directed to the resolution of proceedings in Class 1 of its jurisdiction (DEXUS Funds Management Limited v Blacktown City Council (No 3) [2011] NSWLEC 230 at [44]). The matter the subject of the justiciable controversy arising in these Class 4 proceedings is not confined only to these proceedings and can (and in this case does) include the controversy arising in the 2019 Class 1 proceedings (Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 at [148]). Furthermore, the relief sought by the VT parties by prayer 2 can only be sought in Class 4 proceedings.

The Declaratory Relief Sought in the Council Proceedings

544. Were it necessary to decide (which it is not for the reasons given above in respect of the Council proceedings), the Court again repeats its findings with respect to discretion for present purposes.

545. However, applied to the Council proceedings, those factors would not, in my opinion, preclude declaratory relief from being granted to the Council in circumstances where the EPA lacked the necessary power to issue the variations to EPL 11395 because the statutory preconditions to the exercise of that power had not been met. In my view, mere public pronouncement of invalidity by way of findings alone in this judgment would be insufficient reprobation. As a precursor to setting aside the defective variations, a declaration as to their invalidity is necessary.

Relief

546. In light of the findings made above in relation to the real issues raised by the parties for determination, it remains only to order appropriate relief in the two sets of proceedings.

The VT Parties Proceedings and the Council’s Cross-Summons

547. The declaration in prayer 1 for relief of the VT parties’ further amended summons ought to be made. No relief is granted in respect of prayer 2.

548. The Council’s cross-summons must be dismissed.

The Council Proceedings

549. Because it has been held that the variations to EPL 11395 did not have the effect of amending the 1998 consent in the manner contended for by the VT parties, it is not necessary to determine the issues raised by the Council proceedings. However, if this conclusion is not correct, then the alternative relief sought in the Council proceedings should be granted having regard to the Court’s conclusion on severance. That is:

(a)   set aside each of the following amendments made by the second respondent by way of its decision to issue the 13 May 2009 variation:

(1)   the insertion of the amended form of condition O12.1;

(2)   the insertion of conditions U3.1 to U3.3 inclusive; and

(3)   the insertion of conditions E4.1 and E4.2;

(b)   set aside each of the following amendments made by the second respondent by way of its decision to issue the 29 June 2010 variation:

(1)   the insertion of the amended form of condition O11.3;

(2)   the insertion of the amended form of condition O12.1; and

(3)   the insertion of conditions E1.1 to E3.2 inclusive;

(c)   set aside each of the following amendments made by the second respondent by way of its decision to issue the 9 July 2010 variation:

(1)    the amendments made to conditions O11.1 to O11.3 inclusive;

(2)   the insertion of condition E4.1;

(3)   the insertion of condition E5.1;

(4)   the insertion of condition E7.1;

(5)   the insertion of condition E8.1; and

(6)   the insertion of conditions E9.1 and E9.2;

(d)   set aside each of the following amendments made by the second respondent by way of its decision to issue the 30 August 2010 variation:

(1)   the insertion of the amended form of conditions O11.1 to O11.3 inclusive;

(2)   the insertion of conditions O11.4 and O11.5;

(3)   the insertion of amended form of conditions E4.1 and E5.1; and

(4)   the insertion of the amended form of conditions E7.1 to E9.1 inclusive;

(e)   set aside each of the following conditions in the amended version of the EPL affected by the second respondent’s decision to issue the 7 November 2011 variation:

(1)   conditions O6.6 to O6.10 inclusive;

(2)    condition E4.1;

(3)   condition E5.1; and

(4)   conditions E7.1 to E9.2 inclusive.

Costs

550. The parties requested that costs be dealt with separately. In light of the evolving nature of the proceedings, the making of significant concessions by the parties and the abandonment of some issues and prayers for relief during closing submissions, and the varying results in the two sets of proceedings, this is appropriate and is reflected in the order made below.

Orders

551. The formal orders of the Court are therefore:

In proceedings 101279 of 2019

(1)    the Court declares that the applicant may lawfully carry out the works ordered by the Court on 29 August 2014 in proceedings 40900 of 2012 without the need to obtain further development consent and otherwise dismisses the further amended summons; and

1. the first cross-applicant’s cross-summons is dismissed;

In proceedings 203552 of 2019

1. the further amended summons is dismissed;

In proceedings 101279 and 203552 of 2019

1. within 28 days from the date of the publication of this judgment, liberty to the parties to restore to vary the terms of the orders made above to the extent that they do not properly reflect the reasons set out in this judgment;

2. costs are reserved. Within 28 days of the date of the publication of this judgment, the parties are to provide to the Court a timetable for the preparation of any hearing on costs in the event that they cannot be agreed; and

3. the exhibits are to be returned.

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Amendments

02 May 2022 - Slip rule amendment - the words "and otherwise dismisses the further amended summons" are added to the conclusion of order (1) at [551].

20 June 2022 - Correction of typographical error in [106]. "On 21 December 2019 VT submitted..." amended to "On 21 December 2018 VT submitted...".

20 October 2023 - Addition of year (2019) before 237 LGERA 128 on cover page # 3.

Slip rule amendment - the words (the Council cross claim") replaced with ("the Council cross summons") at [119].

Correction of typographical error at [261] - 1922 changed to 1982.

Slip rule amendment to heading before [366] (Issues 2 to 4).

Added the word "consent" after "No further development" [531].

Decision last updated: 20 October 2023