Warringah Council v Ardel Limited

[2000] NSWLEC 7

Land and Environment Court

of New South Wales

CITATION:	Warringah Council v Ardel Limited and Anor [2000] NSWLEC 7
PARTIES:	APPLICANT: Warringah Council RESPONDENTS: Ardel Limited and Anor
FILE NUMBER(S):	40006 of 2000
CORAM:	Talbot J
KEY ISSUES:	Construction & Interpretation - Injunctions and Declarations - Jurisdiction :- Construction and Interpretation:- meaning of statutory definition of "river" in Rivers and Foreshores Improvement Act 1948 Jurisdiction:- standing of class 4 proceedings where issue can be resolved in class 1 Injunctions and Declarations:- whether development can proceed without permit under Pt 3A Rivers and Foreshores Improvement Act 1948
LEGISLATION CITED:	Rivers and Foreshores Improvement Act 1948 Pt 3A
CASES CITED:	Hassell Pty Ltd v Warringah Council (LEC unreported Nos 10427 of 1997; 10428 of 1997 19 March 1998); Knezovic v Shire of Swan-Guildford (1967-1968) 118 CLR 468; Genkem Pty Ltd v Environment Protection Authority (1994) 85 LGERA 197; Electricity Commission of NSW v Environment Protection Authority (1992) 28 NSWLR 494; Cox & Hazell Pty Ltd v Gidney [1981] 1 NSWLR 468; Twist v Randwick Municipal Council (1976) 136 CLR 106
DATES OF HEARING:	19/01/2000, 20/01/2000, 21/01/2000
DATE OF JUDGMENT:	01/25/2000
LEGAL REPRESENTATIVES:	APPLICANT: Mr T Robertson (Barrister) SOLICITORS: Wilshire Webb RESPONDENT: Mr N Hemmings QC (Solicitor) SOLICITORS: Allen Allen & Hemsley

JUDGMENT:

IN THE LAND AND Matter No. 40006 of 2000
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 25 January 2000

Warringah Council
Applicant

v
Ardel Limited
First Respondent
Narel Civil Engineering Pty Ltd

Second Respondent

REASONS FOR JUDGMENT


1. The class 4 application in its final amended form seeks an order restraining the respondents from carrying out the construction of sediment/water quality ponds described in plans approved by the council on 12 May 1999 and the clearing of two lots proposed in the subdivision of land at Allambie Heights unless authorised to do so by a permit under Pt 3A of the Rivers and Foreshores Improvement Act 1948 (the Rivers Act) together with a declaration that before carrying out the works a permit under Pt 3A of the Rivers Act to authorise the said works must be obtained.

2. The matter first came before me for the hearing of an interlocutory application for an interim injunction but ultimately the parties agreed it would be preferable to finally determine the matter. Therefore, what was originally expected to take several hours, extended over three days, in effect occupying a day and a half of the Court’s time.

3. A convenient starting point for the history of the matter is the determination of a development application by this Court when Sheahan J (assisted by Assessor Brown, as he then was) granted a development consent for the subdivision of the land into 46 lots for the reasons explained in a judgment delivered in Matters No 10427 of 1997 and 10428 of 1997 on 19 March 1998.

4. Section 22B of the Rivers Act dictates that a person must not make an excavation on, in or under protected land or remove material from protected land or do anything which obstructs or detrimentally affects the protected waters or which is likely to do so, unless the person is either authorised to do so by a permit under Pt 3A and does so in accordance with any conditions to which the permit is subject or, is authorised to do so by the Regulation. There is no applicable regulation. The Department of Land and Water Conservation (the Department) is the relevant consent authority under Pt 3A.

5. Protected land is defined as meaning “land that is the bank, shore or bed of protected waters, or land that is not more than 40 metres from the top of the bank or shore of protected waters”.

6. Protected waters means “a river, lake into or from which a river flows, coastal lake or lagoon (including any permanent or temporary channel between a coastal lake or lagoon and the sea)” .

7. A river is specifically defined in s 2 as follows:-

any stream of water, whether perennial or intermittent, flowing in a natural channel, or in a natural channel artificially improved, or in an artificial channel which has changed the course of the stream of water and any affluent, confluent, branch, or other stream into or from which the river flows and, in the case of a river running to the sea or into any coastal bay or inlet or into a coastal lake, includes the estuary of such river and any arm or branch of same and any part of the river influenced by tidal waters

The development consent

8. The following description of the environs of the subject land explained by Sheahan J at p 2 of his judgment is reiterated by the evidence in the present case:-

In more general terms, the Frenchs Forest Special Industrial Area is located to the north, the Spastic Centre’s industrial and residential activities and the residential areas of Allambie Heights are located to the east, and to the west are the Warringah Aquatic Centre, other sporting fields and a nursing home. To the south are the Sydney Water pipeline and the Manly Warringah War Memorial Park.

9. However, his Honour’s description of the site which includes reference to a natural watercourse is more germane to these class 4 proceedings. It reads:-

The site slopes generally from north to south towards Manly Dam Reserve and is currently undeveloped. Natural vegetation exists over nearly all of it, save for a number of walking tracks, and a natural watercourse runs virtually the length of it before joining another natural watercourse, ultimately leading to Manly Dam.


10. His summation of conflicting evidence in respect of proposed water quality control ponds at pp 41-43 shows that Sheahan J, who presumably had the further advantage of some advice from Assessor Brown in understanding the issues, was satisfied that following construction of the development, including the ponds and associated wetland, there will be a reduction of pollutants in run off from the subject site with the result that the water entering Manly Dam Reserve, which has its origins in the industrial area, will be improved by the construction of the ponds and wetland system.

11. The consent granted by Sheahan J contained the following conditions of particular relevance to the issue in this case:-


29. The provision of an on-site stormwater detention and water quality treatment facility generally in accordance with the concepts detailed in reports prepared by CMPS & F Pty Ltd and Morse McVey and Associates Pty Ltd submitted with the development application.

36. The Soil and Water Management Plan for the development is to be approved by the Catchment Protection Officers of the Department of Land and Water Conservation, prior to the commencement of works.

38. Final details for the enhancement, filling and control of stream velocities in the watercourse are to be provided to the Department of Land and Water Conservation for review and approval.

Consultation with the Department of Land and Water Conservation and the council

12. Correspondence has been produced to the Court which shows the Department of Land and Water Conservation has been regularly consulted in relation to water quality control since at least August 1996 when the development application was referred to it for comment by the council.

13. In a letter to council on 15 January 1997 the Department made the following observation regarding the proposed ponds and wetlands:-

The DLWC agrees that this is an effective means of controlling and minimising sediment and pollutant loads to receiving waters, so long as the design is also effective during flood events. Stormwater entering the creek is currently untreated and the WQCP will minimise existing pollutant concentrations downstream as well as treating stormwater from the proposed development. This will help to improve the long term water quality of Manly Dam.

14. Further support was provided by the Department to council by facsimile transmission dated 3 June 1997, including the following comment:-

Although the watercourse in question cannot be defined as a “river” under the Rivers and Foreshores Improvement Act, 1948, given there are proposals for “enhancement”, “filling” and “controlling stream velocities” in the watercourse, DLWC would prefer to see a condition of consent whereby the final details of these proposals are sent to the Department for review. DLWC has gathered a reasonable amount of information regarding the best management practices for urban streams and would be happy to act in an advisory role.


15. The above comment is clearly reflected in condition 38 of development consent.

16. Following submission of a Soil and Water Management Plan to the Department on 9 February 1999, the Department responded to the first respondent’s consultant Morse McVey & Associates Pty Ltd as follows:-

As you are probably aware, the Department’s input to this project is in the advisory role only and not as a determining authority. As such, the Department will not issue an approval as such. It will, however, concur with the Soil and Water Management Plan as presented during our meeting on 8 February 1999. This covers the Commentary for a SWMP for Subdivision of Lot 2845 Aquatic Drive Allambie Heights and accompanying A1 Plans (991752-01A through to 11A).


17. On 21 July 1999, following lodgement of development applications for integrated housing on the site, the council forwarded copies of each application to the Department together with payment of a total fee of $500 and advice that the developments constitute integrated development for the purpose of the Environmental Planning and Assessment Act 1979 (the EP&A Act) and, as they are within 40 metres of a watercourse, require a permit under Pt 3A of the Rivers Act.

18. The Department responded by letter on 27 July 1999 in the following terms:-


In accordance with the Environmental Planning and Assessment Act 1979 and Regulation 1994 (as amended) the Department of Land and Water Conservation has an approval role in relation to development applications where there is a “River”.

Previous inspections and dealings concerning the site by officers of the Department have determined that there is not a “River” on the site.

Consequently, a Part 3A permit under the Rivers and Foreshores Improvement Act 1948 is not required. The Department recommends that erosion and sediment control measures be addressed for the works in accordance with the NSW Government’s “Managing Urban Stormwater Soils and Construction (1998)” manual.


19. In the meantime, on 12 May 1999, council had granted an approval to the subdivision of the land under Pt XII of the Local Government Act 1919 on the condition that it be carried out in compliance with the Commentary for the Soil and Water Management Plan prepared by Morse McVey & Associates Pty Ltd dated March 1999.

20. The Commentary accompanied specific drawings. Together, the Commentary and drawings comprise the Soil and Water Management Plan (SWMP) for the subdivision of the subject land.

21. In response to a telephone inquiry made to the Department by Morse McVey & Associates Pty Ltd on 18 January 2000, following commencement of these proceedings, the Department confirmed the advice previously given in the letter on 17 February 1999 to Morse McVey & Associates Pty Ltd and the fax letter to council on 3 June 1997 confirming its position that:-

A permit under Section 3A of the Rivers and Foreshores Improvement Act (1948) is not required.


22. In a further letter dated 20 January 2000 the Department expressed concurrence with modification to the SWMP approved by the council’s Development Engineer on 19 January 2000.

23. Predictably “upon receipt of advice from Council’s Solicitors” , at a time when these class 4 proceedings were part heard on 20 January 2000, the council advised the first respondent’s consultant by letter that the variation granted by council’s letter dated 19 January 2000 “was issued by mistake and is invalid as Council officers do not have power to issue such a variation” . The consultant was further advised, in order to vary the provisions of the SWMP, that it is necessary to seek a formal modification of the Pt XII subdivision approval issued by council and the terms of the development consent issued by this Court. The justification for this latter claim is not stated.

Assessment of the condition of the watercourse

24. The only direct evidence of the state of the watercourse running through the land is the finding by Sheahan J and an affidavit of Steven John Perrens, Consulting Engineer, who was cross examined by Mr Hemmings QC, on behalf of the respondents.

25. Sheahan J did not address the legal issues in this case as they were not raised before him.

26. Dr Perrens has visited the site on two occasions, namely 31 December 1999 and again during the morning of 10 January 2000.

27. He refers to the definition of a river in the Rivers Act and sets out the well known passage in the judgment of Barwick CJ in Knezovic v Shire of Swan-Guildford (1967-1968) 118 CLR 468 at 475-476 as follows:-

… it is settled that a watercourse consists of a stream with a bed, with banks, and water. That the flow of the water in the stream is intermittent or seasonal will not prevent what would otherwise be a watercourse from being accounted such: but though it is quite true that a watercourse may exist though its bed be dry from some periods, the watercourse, in my opinion, must exhibit features of continuity, permanence and unity, best seen, of course, in the existence of a defined bed and banks with flowing water. It must, in my opinion, essentially be a stream and be sharply distinguished from a mere drain, or a drainage depression in the contours of the land which serves to relieve upper land of excess water in times of major precipitation. It is not enough that the water, when it does flow, does so in what may be seen as a defined course or channel. In the case of a drainage depression, the water being drained off can be expected to flow in the lowest portion of the contours confined by the rising levels of the adjacent land: thus water can be seen when flowing to do so in what could be called a defined channel.


28. In Dr Perrens’ view, the channels on the site constituted a “river” as defined in the Rivers Act. He is also of the view that the watercourses comply with the characteristics identified by the High Court in Knezovic . In particular, he says, they have defined beds and banks and exhibit continuity within and outside the site. Further, they are, in his opinion, characterised by variations in channel dimensions which are characteristic of natural creeks as opposed to a drainage channel.

29. Dr Perrens produced photographs confirming his observations to support his conclusions.

30. It was apparent from the cross examination of Dr Perrens that he did not have the opportunity to fully explore the locality to enable him to reach a definitive conclusion about many aspects of natural water flows above, through and below the site. He acknowledged that development works were being undertaken on the site at the time of his inspection and that he had not had the benefit of inspecting photographs and other material held by council showing the condition of the land before development had commenced.

31. The evidence discloses that generally stormwater in the industrial areas above the site has been collected and discharged through the council pipes under Aquatic Drive and onto private land north of the subject land. It is not at all clear whether stormwater run off from the land above the site would have otherwise naturally found its way into the watercourse or channel that now exists on the subject land.

32. Dr Perrens attributed significance to the bed and banks in the channel. However, there is no certainty the bed and banks have been created naturally. Mr Hemmings suggests that, equally, subsequent scouring of the land by the re-directed stormwater has resulted in the so-called watercourse.

33. Having regard to the contours of the land, the Court cannot be satisfied, on the balance of probabilities, that the water is flowing in a natural direction at all locations within the site.

34. There is no proof that it is a natural channel, artificially improved, or an artificial channel which has changed the course of the stream of water. The Court needs to be satisfied that if the pipes and drains constructed above the site for the purpose of collecting and disposing of the stormwater were not there, water would have flowed across the land, through the channel inspected by Dr Perrens. The applicant has not discharged the onus in this respect. Instead it has relied solely on the characteristics of the channel itself without due regard being paid to the historical source and course of the stream. There is no evidence which demonstrates where the stream may have been if council drainage works in connection with the industrial area had not been built. There is no proof there would have been a stream of any significance, if at all.

35. Mr Robertson concedes that artificial structures such as culverts, footpaths, swails or other structures designed to concentrate water flows should not be characterised as rivers because they do not have the fundamental attribute of naturalness. There must be a natural channel, with beds and banks, to constitute a river. He says drains, concrete structures and pipes do not constitute a river within the inclusive meaning of the definition unless they caused the original stream to be relocated.

36. In the present case, there is no evidence that redirection, if any, of the original stream occurred within the site. Notwithstanding that the channel through the site is open and has developed sides in the nature of banks, it has not been shown to be the natural channel for any stream that flows in it. It may nevertheless meet the definition of a watercourse developed by Barwick CJ in Knezovic . That does not necessarily mean that it is a river within the ordinary meaning of that word.

37. The Oxford Dictionary places significant emphasis on “a copious natural stream” and “a copious flow” , neither of which expressions could be applied to the subject site.

38. The statutory definition of a river is to be applied with due regard to common sense. It is not necessary to read the definition down in order to do this, at least for present purposes. A natural channel is one that is caused by nature so that it is inherent in the character of the land. The Court has not been satisfied that this criteria has been met. On the balance of probabilities, historically there may have been some flow through the site after heavy rain, but the Court cannot be satisfied that it would have generated the features of the present watercourse if council had not interfered with the natural discharge of stormwater, exacerbated by the industrial development across Aquatic Drive to the north.

39. The Rivers Act does not seek to control the sites of all watercourses, only those which answer the ordinary meaning of a river or where there is a stream of water flowing in a natural channel that may not immediately be recognised as a river in the accepted sense. The definition diminishes the difference between a stream and a river which the Chief Justice (as he then was) discussed in Genkem Pty Ltd v Environment Protection Authority (1994) 85 LGERA 197 at 201. However, by contrast to the definition of “waters” in the Clean Waters Act 1970 which includes any natural or artificial watercourse, the inclusive definition in the Rivers Act is not so wide and comprehensive. It specifies a particular category of artificial channel to be included. This maintains the connection between a specific artificial channel and the concept of a river according to the general understanding.

40. I believe that to approach the application of the definition of river in the way outlined above is to do so in a common sense fashion, having due regard to width of the expressions used by the draftsperson (see Gleeson CJ in Electricity Commission of NSW v Environment Protection Authority (1992) 28 NSWLR 494 at 498 where his Honour was prepared to constrain the meaning of “pollute” but not the application of the definition of “waters” ).

41. Mr Robertson in the course of submissions warned against the consequence of rejecting the applicant’s approach with its potential for such a decision to have an effect on other cognate legislation designed to protect riparian rights and which rely on the same definition of a “river” . It is difficult to see how any riparian rights can be undermined where the Court construes the definition to restrict the type of channel through which a relevant stream flows to one which is created by an act or acts of nature. In my view, there is no inconsistency with the maintenance of riparian rights in that approach.

42. Mr Robertson also expressed a concern about the social interest envisaged by the legislation in an environmental context. Again it is not inconsistent with any objective in that respect to confine the application of the Act to the normally understood features of a river, except where there has been human interference with the pre-existing stream.

43. Nevertheless, the facts in this case show that there already has been an extensive and intensive investigation of environmental effects of the whole development. Furthermore, the regulator appointed under the Rivers Act does not seek to exercise its jurisdiction under the Act.

Whether the Court should exercise jurisdiction

44. In the course of the hearing, attention was drawn to s 22L of the Rivers Act which affords the right of appeal to this Court by any person who is aggrieved by a decision of the Construction Authority. There is no dispute between the parties that the council is relevantly an aggrieved person. However, the Court is not satisfied that the council’s action in referring the two development applications to the Department as integrated development, thereby makes the council an applicant for consent, notwithstanding some suggestion by the respondents that it may have been.

45. In Cox & Hazell Pty Ltd v Gidney [1981] 1 NSWLR 468 the New South Wales Court of Appeal considered what flowed from the decision of the High Court in Twist v Randwick Municipal Council (1976) 136 CLR 106. In Twist the owner of a building served with a demolition order sought to challenge the validity of the order on the ground that he had not been given the opportunity to be heard when the legislation provided for a right of appeal. The High Court unanimously held that he was not entitled to challenge the validity of the order in the Supreme Court having regard to the right of appeal.

46. The majority in the Court of Appeal (Hope and Mahoney JJA) in Cox & Hazell agreed that Twist did not establish that the company was not entitled to otherwise call into question the validity or correctness of the council’s order prohibiting the use of its land for the storage of disused motor vehicles and old machinery and old or second hand materials pursuant to s 510A of the Local Government Act 1919. Both agreed that the judgments in Twist were intended to deal only with cases where the alleged invalidity arises by reason of the application of the rules of natural justice. Hope JA in particular was convinced that to rule to the contrary would mean that no Court, other than the appellate court referred to in the legislation, could review the validity of the order. Twist was not regarded as authority for such a wide proposition.

47. Mr Hemmings nevertheless contends that the subject application does not challenge the validity of the Department’s decision as a matter of law, but whether it made the right decision. His argument is that rather than deal with the merit questions on the issue of discretion in these proceedings, it is more appropriate for this Court to deal with these matters, including the subjects of biology, hydrology and engineering, by exercising its specialist jurisdiction in a class 1 appeal.

48. Further, he says, there is already a class 1 appeal against the refusal of a development application where it would be appropriate for the council to argue the question of whether the application involves integrated development.

49. Accordingly, the respondents’ case is that either the council can appeal to this Court under s 22L as an aggrieved person, or it can enliven all of the relevant issues in the appeal against refusal of development consent.

50. Mr Hemmings’ argument is really one regarding the most convenient forum to deal with the questions of law and merit that arise.

51. Having regard to strong views expressed by the majority of the Court of Appeal in Cox & Hazell , I do not think the question of the most convenient forum, forum conveniens or exclusion of this Court’s jurisdiction in class 4, can arise. In any event it is appropriate for such a submission to be made only in support of a preliminary application for the proceedings to be stayed or transferred to another jurisdiction. That was not done.

52. I agree with Mr Robertson that Cox & Hazell is direct authority for the council’s rights to raise the issues it does in these proceedings. It is not a direct challenge to the decision of the Department in any event. The Department has not been made a party and is not, in my opinion, necessarily an essential party who ought to have joined to ensure that all matters in dispute may be effectually and finally determined. Arguably the Department has never made a relevant decision to ground an appeal.

53. Furthermore, I have heard all of the evidence, apart from evidence limited to discretion, and comprehensive submissions have been made by both parties. It is appropriate and proper therefore that the Court decide, subject to the exercise of the Court’s discretion, whether, in the circumstances, the applicant is entitled to the relief it seeks against the respondents.

Conclusion

54. The applicant has not discharged the onus of proof to show on the balance of probabilities that the proposed works are in or adjacent to a river within the meaning of that term used for the purposes of Pt 3A of the Rivers Act.

55. In the circumstances, the application must be dismissed.

56. The exhibits may be returned.