Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 5); Foxman Environmental Development Services Pty Ltd v Wollondilly Shire Council

[2013] NSWLEC 68

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 5); Foxman Environmental Development Services Pty Ltd v Wollondilly Shire Council [2013] NSWLEC 68

Hearing dates:

28 February, 2–4, 7–8, 16 March, 21 July 2011

Decision date:

22 May 2013

Jurisdiction:

Class 4

Before:

Pepper J

Decision:

See orders at [310] and [311].

Catchwords:

CIVIL ENFORCEMENT: deposit of fill material contaminated with asbestos, lead and other foreign materials and carrying out of earthworks works on land - whether contrary to development consent - whether contaminated fill material on land constituted "waste" - whether waste exemptions applied to deposited material - whether depositing of contaminated fill material on land constituted use of land for the purpose of a "waste management facility or works" - whether construction certificate issued after works commenced void and of no effect - whether transportation of waste and use of land as a waste facility in contravention of the Protection of the Environment Operations Act 1997 - whether carrying out of works constituted land and water pollution in contravention of the Protection of the Environment Operations Act 1997 - whether carrying out of filling works on "waterfront land" was a "controlled activity" for which approval was required in contravention of Water Management Act 2000 - whether all or some of the respondents liable for contraventions - meaning of word "causes" - meaning of word "permits".

DEVELOPMENT APPLICATION: whether new development application in respect of works was in respect of designated development - whether proposed development constituted use of land for the purpose of a "waste management facility or works".

DECLARATIONS AND INJUNCTIONS: whether appropriate to grant declaratory, injunctive and remedial relief - scope of discretion.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 5, 5A, 76A(1)(a), 77A, 78A, 79, 96, 109F(1A), 121B, 124

Interpretation Act 1987, s 35

Land and Environment Court Act 1979, s 20

Protection of the Environment Operations Act 1997, ss 3, 47- 49, 88, 91, 110, 120, 142A, 143, 144, 252, Sch 1 cl 39(1)

Water Management Act 2000, ss 91, 91E, 336

Environmental Planning and Assessment Regulation 2000, cls 4, 50, 51(1), Sch 3 cls 32, 37A, 38

Protection of the Environment Operations (Waste) Regulation 2005, cls 3B, 42, 51, 51A

Sydney Regional Environmental Plan No 20

Wollondilly Local Environmental Plan 1991

Cases Cited:

ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67

Asim v Penrose [2010] NSWCA 366

Barrington-Gloucester-Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure [2012] NSWLEC 197

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

Blacktown City Council v Pace [2002] NSWLEC 142; (2002) 121 LGERA 432

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

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294

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

Council of the City of Sydney v Mae [2009] NSWLEC 84

CTI Joint Venture Company Pty Ltd v CRI Chatswood Pty Ltd (In Liq) (Receivers and Managers Appointed) (No 3) [2012] NSWLEC 6

Department of Environment and Climate Change v Olmwood Pty Ltd [2010] NSWLEC 15; (2010) 173 LGERA 366

Director-General, Department of Environment and Climate Change v Jack & Bill Issa Pty Ltd (No 5) [2009] NSWLEC 232; (2009) 172 LGERA 225

Director-General, Department of Environment and Climate Change v Walker Corporation Pty Limited (No 2) [2010] NSWLEC 73

Director-General of the Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229

Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118

Dobrohotoff v Bennic [2013] NSWLEC 61

Environment Protection Authority v Hardt [2006] NSWLEC 438; (2006) 148 LGERA 61

Environment Protection Authority v HTT Huntley Heritage Pty Ltd [2003] NSWLEC 76; (2003) 125 LGERA 332

Environment Protection Authority v Multiplex Constructions Pty Ltd [2000] NSWLEC 6; (2000) 112 LGERA 1

Environment Protection Authority v Shannongrove Pty Ltd [2010] NSWLEC 162; (2010) 176 LGERA 31

Environment Protection Authority v Terrace Earthmoving Pty Ltd [2012] NSWLEC 216

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

Glaser v Poole [2010] NSWLEC 143

Gosford City Council v Verde Terra Pty Ltd (No 2) [2013] NSWLEC 62

Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1

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

Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472

Holroyd City Council v Murdoch (1994) 82 LGERA 197

Hunters Hill Council v Fraser [2006] NSWLEC 744

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270

Marrickville Council v Tanwar Enterprises Pty Ltd [2009] NSWLEC 127

Moore v Yarrowlumla Shire Council [2002] NSWLEC 62; (2002) 120 LGERA 109

Palmer v Dolman [2005] NSWCA 361

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

Pittwater Council v Nix [1993] NSWLEC 162

Pittwater Council v Schiliro [2000] NSWLEC 175

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

Ryde City Council v Chen [2012] NSWLEC 63

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

Silverwater Estate Pty Ltd v Auburn Council [2001] NSWLEC 60

Simpson v Wakool Shire Council [2012] NSWLEC 163; (2012) 190 LGERA 143

Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1

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

Tynan v Meharg [1998] NSWSC 592; (1998) 101 LGERA 255

Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change and Water [2012] NSWCCA 210; (2012) 82 NSWLR 12

Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245

Wilkie v Blacktown City Council [2002] NSWCA 284; (2002) 121 LGERA 444

Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508

Category:

Principal judgment

Parties:

40578 of 2010
Wollondilly Shire Council (Applicant)
Foxman Environmental Development Services Pty Ltd (First Respondent)
Phillip Foxman (Second Respondent)
Botany Building Recyclers Pty Ltd (Third Respondent)
Craig Hardy (Fourth Respondent)

40062 of 2011
Foxman Environmental Development Services Pty Ltd (Applicant)
Wollondilly Shire Council (Respondent)

Representation:

40578 of 2010
Mr T Howard (Applicant)
Mr P Clay with Mr M Seymour (First, Second and Third Respondents)
Mr A Hudson (Solicitor) (Fourth Respondent)

40062 of 2011
Mr P Clay with Mr M Seymour (Applicant)
Mr T Howard (Respondent)
40578 of 2010
Hones La Hood (Applicant)
Whittens Lawyers (First, Second and Third Respondents)
Wilshire Webb Staunton Beattie Lawyers (Fourth Respondent)

40062 of 2011
Whittens Lawyers (Applicant)
Hones La Hood (Respondent)

File Number(s):

40062 of 2011 and 40578 of 2010

Index

Topic Paragraph Number
The Foxman Entities Engage in Clearing and the Placement of Fill on Land	[1]
The 2010 Proceedings: Breach of the EPAA, the POEOA and the WMA	[5]
The 26 May 2010 Meeting	[92]
Attempts at Resolution with the Council	[96]
Evidence of the Foxman Entities	[101]
Summary of the Works Carried Out on the Land	[102]
The Council's Contentions	[104]
Regulatory Framework	[109]
POEOA	[109]
WMA	[133]
EPAA and the EPA Regulations	[138]
Surveying Evidence	[141]
Environmental Engineering Evidence	[146]
Town Planning Evidence	[154]
Geotechnical Evidence	[165]
Ecological Evidence	[181]
Contraventions of the EPAA, the POEOA and the WMA	[186]
Which Foxman Entity is Liable	[186]
Breach of the POEOA	[191]
The Fill Material is "Waste"	[192]
The Waste Exemptions Do Not Apply	[212]
The Land Was Used as a "Waste Facility"	[224]
Breach of s 143 of the POEOA	[226]
Which Foxman Entity Transports Waste to the Land	[228]
The Land Cannot Lawfully be Used as a Waste Facility	[244]
Breach of s 144 of the POEOA	[246]
Breach of s 142A of the POEOA	[250]
Breach of s 120 of the POEOA	[254]
Summary of Findings Under the POEOA	[258]
Breach of the WMA	[259]
Breach of the EPAA	[263]
The Works Constituted "Filling" and a "Land Filling Operation"	[264]
The Works Constituted the Use of the Land as a "Waste Management Facility or Works"	[267]
Discretion to Declare, Restrain and Remedy	[273]
The Declarations Sought Ought to be Made	[274]
The Injunctive and Remedial Relief Sought Ought to be Made	[280]
The 2011 Proceedings: Designated Development	[291]
The Statutory Framework	[299]
The Proposed Development is "Designated Development"	[304]
Costs	[309]
Orders	[310]

Judgment

The Foxman Entities Engage in Clearing and the Placement of Fill on Land

1. By amended summons filed 8 October 2010, Wollondilly Shire Council ("the council") seeks various relief against the respondents under s 124 of the Environmental Planning and Assessment Act 1979 ("the EPAA"); under s 252 of the Protection of the Environment Operations Act 1997 ("the POEOA"); and similarly under s 336 of the Water Management Act 2000 ("the WMA"). The relief sought is for declaratory and injunctive relief pursuant to breaches of the enactments referred to above, together with orders for remediation.

1. In short, the breaches arise from the unlawful deposit of a considerable amount of material, in part contaminated with asbestos and lead, on land by way of fill. The council seeks the removal of all unlawfully deposited material. The respondents contend that "far less drastic" orders can be made by the Court to appropriately remedy or restrain any breaches of the law, namely, removal of only part of the fill material and the establishment of environmental protocols for the retention and management of the remainder of the fill.

1. The first respondent to those proceedings ("the 2010 proceedings"), Foxman Environmental Development Services Pty Ltd ("Foxman"), is the applicant in the related proceedings that were commenced by summons on 25 January 2011 ("the 2011 proceedings") and were heard concurrently with those commenced by the council. In the 2011 proceedings, Foxman seeks declaratory relief that the development the subject of both proceedings is not "designated development" as defined in the EPAA and the Environmental Planning and Assessment Regulation 2000 ("the EPA Regulations").

1. During the course of the hearing it became apparent that the evidence of both parties had not been finalised. Thus various expert reports were served late or, in respect of some of the joint expert reports, not at all, with further testing, conferencing and reporting required during the course of the proceedings. The overall result was, from the Court's perspective, disjointed. For example, eight sets of submissions were served, applications to reopen were made during closing submissions and after the judgment had been reserved, a strike out application was made and abandoned during final addresses and allegations of trial by ambush were levelled. In hindsight, the hearing ought to have been adjourned until such time as the evidence had been completed and the matter was ready to proceed. Having said this, however, this in no way excuses the excessive delay in the delivery of this judgment. Finally, I note in passing that after the findings and reasons in this judgment had been written, but prior to the judgment's publication, an article concerning the case appeared in The Sun-Herald. The article has had no bearing on the outcome of the proceedings nor on any of the findings made or opinions expressed.

The 2010 Proceedings: Breach of the EPAA, the POEOA and the WMA

1. Due to the discretionary nature of the relief sought and the contest surrounding its scope, it is necessary to set out the facts in these proceedings in considerable detail. The facts, as found below, were contained in various affidavits, expert ecological, engineering, geotechnical and town planning evidence, bundles and supplementary bundles of documents, maps, plans and photographs and, eventually, a short agreed statement of facts.

1. Foxman is the registered proprietor of land comprising Lot 733 in DP811421, known as 35 Evelyns Range Road, The Oaks ("the land"). The land is approximately 76ha in area.

1. The second respondent, Mr Phillip Foxman, is the sole director of Foxman and is the sole director of the third respondent, Botany Building Recyclers Pty Ltd ("BBR"). In this judgment the respondents will be collectively referred to as the "Foxman entities".

1. Mr Foxman is also the sole director of both Foxy's Transport Pty Ltd ("Foxy's") and Foxman Holdings Pty Ltd ("Foxman Holdings").

1. BBR operates a waste storage and processing facility on land comprising Lot 8 in DP11235, Lot 9 in DP651995 and Lots 110 and 111 in DP131166, known as 38 McPherson Street, Banksmeadow ("the Banksmeadow Waste Facility").

1. The Banksmeadow Waste Facility has been operating since 1990. From 1990 until 1997 BBR operated the Facility and in 1997 Foxman Holdings (the owner of the land upon which the Facility operates) leased the Facility to Collex for a 10 year term expiring in 2007. Collex operated the Banksmeadow Waste Facility under the authority of its own environment protection licence during the period of the lease. After the lease expired, Collex surrendered its licence in 2007 and BBR resumed operation of the Banksmeadow Waste Facility.

1. BBR operates the Banksmeadow Waste Facility pursuant to environment protection licence no 12857 issued by the Environment Protection Authority ("the EPA") under the POEOA ("the EPL").

1. The scheduled activities authorised to be carried out under the EPL include "waste storage" and "waste processing (non-thermal treatment)".

1. It was common ground, however, that there was no licence in force under the POEOA permitting the carrying out of any relevant scheduled activities under that Act on the land by any of the Foxman entities.

1. Under the EPL, BBR is authorised to store and process certain classes of "general solid waste (non-putrescible)" as defined in the POEOA and the then Department of Environment and Climate Change's ("DECC") Waste Classification Guidelines (revised in December 2009). This includes building and demolition waste such as brick concrete, soil, paper, plastics, glass, metal, timber as well as excavated natural material and asphalt waste.

1. The EPL was subject to conditions, one of which was condition L5.4.1, which stated:

There shall not be more than 10,000 cubic metres or 20,000 tonnes, whichever is the lesser, of waste and/or processed material on the premises at any time.

1. The land is land to which the Sydney Regional Environmental Plan No 20 ("SREP 20") applies. Under SREP 20 the "filling" of land is permissible only with development consent. Clause 11 of SREP 20 provides:

Filling

Definition:

Filling of land, including submerged aquatic land, by raising the ground level through disposal of spoil from any landfill method (such as mining, dredging or refuse dumping), whether or not to enable the construction of a road or the erection of buildings or pylons or any other structure, where filling exceeds 1 metre in depth, or an area of 100 square metres.

1. The land is also land to which the Wollondilly Local Environmental Plan 1991 ("the WLEP") applies. Under the WLEP the land is zoned 1(b) Agricultural Landscape Zone. Under the WLEP a "land filling operation", as defined, is permissible only with development consent within the 1(b) Zone. The term is defined in cl 6 to mean "any work or other activity on land for any purpose which has the effect of materially altering the shape or material form of the land."

1. On 30 July 2008 BBR wrote to the council seeking advice as to what activities were permissible with and without consent on the land. In particular it inquired wether the construction of internal access roads was exempt, complying development or required development consent. It asked whether the development of the land for a golf course, either public or private was permissible.

1. On 6 August 2008 the council responded. Relevantly, in relation to land filling, it quoted the definition of "land filling operation" in the WLEP and noted that land filling operations required consent under that instrument. Consent was also required for the purpose of land filling under the provisions of the SREP 20. Further, the construction of internal access roads required consent and was not exempt or complying development. The council noted that the land contained a number of waterways.

1. The council's response promoted an email exchange between the General Manager of BBR, Mr Joe Scimone, and Mr Chris Hammersley, the Strategic Manager at TCG Planning and Environment Urban Design ("TCG Planning"). The email referred to the construction of a golf course, either public or private, on the land.

1. Another email exchange between Mr Hammersley and Mr Scimone took place on that day concerning the development of the golf course. From the email exchange it appears that what was envisaged was that the site would be a staged development with the final outcome the creation of the golf course. Stage 1 was described as "being a land fill site". Mr Hammersley asked Mr Scimone what volumes of fill and types of fill it was anticipated would be placed on the site. This was in response to Mr Scimone indicating that (emphasis added) "the site will need significant filling and reshaping. The proposal does not rely upon any residential component, except for a single dwelling for the caretaker. I believe that a single dwelling is permissible with consent".

1. This prompted Mr Hammersley to email Mr Scimone with legislative extracts concerning "waste management facilities or works".

1. On 12 August 2008 TCG Planning sent a fee proposal to BBR in respect of a "brief". The brief was described as a staged development with the preparation of two planning reports to accompany two development applications. The first development application was for a single dwelling house including internal access road construction. The second application was for a proposed private/public golf course "(resulting from land fill)" on the land. The brief noted that a development application would be required for "the single dwelling house and internal access roads". It also stated that a development application would be required for landfill and the golf course. The fee proposal noted that the use of the site for the purpose of a landfill may constitute "designated development" in which "waste management facilities or works" are defined in the relevant legislation and would require an environmental impact statement. This was due to the potential quantity of land fill and the proximity of the development to a watercourse. The fee proposal noted that BBR had advised that it was BBR's intent that the material used in filling and reshaping the land would meet various waste exemptions.

1. On 2 September 2008 Mr Scimone sent through to Mr Henry Moore at the EPA a draft set of chemical and other material criteria. The material was to be used in construction as "select fill". The material showed high levels of, amongst other things, lead.

1. From mid to late November 2008 correspondence passed between Mr Ryan Smithers of BES Bushfire + Environmental Services ("BES") and Mr Hammersley at TCG Planning. On 20 November 2008 an email between Mr Smithers and Mr Hammersley discussed the substantial ecological constraints on the property by reason of the presence of endangered ecological communities ("EECs") specifically Cumberland Plain Woodland and Western Sydney Dry Rainforest. A map indicating the presence of the EECs was attached.

1. On 24 November 2008 an email was sent from Mr Hammersley to Mr Smithers. In it Mr Hammersley stated that his "client" was concerned about "an internal road layout". Mr Hammersley expressed the disappointment on behalf of his clients that "the entire site appears to be listed as an EEC and there are no alternative solutions which could be considered to allow for some access". Mr Hammersley reiterated that the main objective of developing this site "for the dwelling house is to allow some access roads within the site". On 27 November 2008 a phone call log was generated in relation to a conversation between Mr Scimone and Mr Smithers. The log reports the following "advised Ryan the need for road as part of DA - ie linked to waste disposal".

1. On 10 December 2008 BBR made representations to DECC that it should grant a new general exemption under Pt 6 cls 51 and 51A of the Protection of the Environment Operations (Waste) Regulation 2005 ("the POEO Waste Regulations") separate to the published and applicable exemptions, namely, The recovered aggregate exemption 2008 and The recovered fines exemption 2008. BBR proposed that this new exemption would apply to substances processed from waste if the material met threshold specifications that were more tolerant with respect to the presence of certain contaminants and foreign materials than the specifications that applied under the exemptions referred to above.

1. On or about 12 January 2009 Mr Foxman lodged a development application with the council seeking development consent to "build a home/dwelling and infrastructure, formalisation of existing trails and bushfire management" ("the DA"). The DA comprised:

(a) the DA form;

(b) the assessment fee;

(c) the authority from the then owners of the land;

(d) plans for the dwelling house prepared by Wilk & Partners ("the plans");

(e) a Statement of Environmental Effects prepared by TCG Planning dated 22 December 2008 ("the 2008 SEE");

(f) a flora and fauna assessment report prepared by BES dated December 2008 ("the Flora and Fauna Report");

(g) a bushfire protection assessment report prepared by BES dated December 2008 ("the Bushfire Report"); and

(h) a BASIX Certificate no 229582S dated 7 January 2009.

1. By notice of determination dated 16 March 2009, the council determined the DA by the granting of development consent, subject to conditions, for a "single storey dwelling, detached garage, pool, spa, water tanks and fire trail" ("the 2009 consent", emphasis added).

1. Conditions 1(1) and 1(2) of the 2009 consent were as follows:

Development consent is granted for Single Storey dwelling, detached garaged. Swimming pool, water tank and fire trail at Lot:733 DP:811421, No 35 Evelyns Road THE OAKS

The applicant is informed that this approval shall be regarded as being otherwise in accordance with the information and particulars set out and described in the Development Application registered in Council's records as Development Application No 010.2009.00000010.001 received on 12/01/2009 except where varied by the following conditions of consent.

1. Condition 5(1) of the 2009 consent stated as follows:

Construction shall not commence, nor any earthworks or placement of site sheds, prior to the issue of a Construction Certificate by the Principal Certifying Authority.

1. Condition 6(3) of the 2009 consent required the works carried out on the land to be accompanied by a sewerage management facility application having been submitted to the council for approval;

Prior to issue of construction Certificate, a sewerage management facility application comprising plans and manufactures specifications shall be submitted to Wollondilly Shire Council for approval.

All drainage works shall be carried out in accordance with the New South Wales Plumbing & Drainage Code of Practice except where otherwise provided in the Local Government Act 1993, or the Local Government (General) Regulation, 2005.

In relation to any approval for the installation of an On-Site System of Sewerage Management Facility (septic tank), including any drainage works associated with the system under Section 68 of the Local Government Act, 1993, the following works shall be inspected by Wollondilly Shire Council, prior to backfilling of drainage lines or the tank:

- Internal/External drainage before backfilling;

- Septic/wastewater treatment tank prior to backfilling;

- Disposal and/or irrigation system.

1. Run off and erosion controls were prescribed by condition 8(1) of the 2009 consent:

Runoff and erosion controls are to be installed prior to the commencement of any site works and incorporate:

a) Diversion of uncontaminated up-site runoff around cleared and/or disturbed areas.

b) Containment of the downslope permitter of the cleared and/or disturbed area with a slit fence and/or other devices to prevent sediment and other debris escaping from the land.

c) Maintenance of all erosion control measures at maximum operational capacity until the land if effectively rehabilitated after complete of construction.

1. Condition 8(2) of the 2009 consent required:

Removal and/or disturbance of vegetation is to be confined to the approved building area, the site of permanent access ways and land extending a maximum of 3 metres beyond the outermost projection of the approved building.

1. Condition 10(2) of the 2009 consent stated that:

No clearing shall occur in the areas defined as Shale Hills Woodland as defined in the map (Figure 3) of the Flora and Fauna Assessment prepared by BES Service December 2008.

1. Condition 10(4) of the 2009 consent required a property vegetation plan to be approved by the Catchment Management Authority:

Clearing beyond the area authorised by this Development Consent shall not occur without being specified in a property Vegetation Plan approved by the Catchment Management Authority.

1. The information in particular referred to in condition 1(2) of the 2009 consent included the following documents:

(a) the plans;

(b) the 2008 SEE;

(c) the Flora and Fauna Report; and

(d) the Bushfire Report.

1. The 2008 SEE relevantly stated the following (emphasis added):

The landowner is seeking to construct a single storey dwelling at the north west portion of the site, reconstruct and upgrade existing trails on the site (to a serviceable standard of the rural bushfire brigade) ...

The dwelling and upgrade to trails has been designed to ensure minimal impact upon the natural environment. The dwelling is proposed to be located in an area which is cleared and requires minimal removal of vegetation for development, cut and fill, bushfire management and week removal. It is intended to ensure that minimal disturbance shall occur to the site whilst the site is enhanced with landscaping and ensuring that as much as possible of the existing natural vegetation is retained.

...

The proposed upgrade to trails will be within existing cleared areas and in areas that will require removal of exotic vegetation. Minimal cut and fill will be required as the trails are within areas on tops of ridges and spurs (i.e., electrical transmission easement) and follows traditional trails that meander and follow natural contour and less steep areas. The location of the trails will be of low visual impact, will result in minimal erosion, cut and fill and will be low maintenance.

1. Neither the DA nor the accompanying documentation indicated that the development proposal involved the placement on the land of fill material comprising processed waste from the Banksmeadow Waste Facility. Likewise, the plans and documentation comprising the DA did not indicate, that the development proposal was to import large amounts of fill and deposit it on the land, as distinct from "minimal cut and fill".

1. Apart from the 2009 consent, there is no other development consent on the council's register authorising the impugned works on the land for the purpose either of the WLEP, SREP 20 or the use of the land as a "waste management facility or work" pursuant to cl 32 of Sch 3 of the EPA Regulations.

1. On 22 January 2009 DECC wrote to Mr Scimone in response to BBR's application dated 10 December 2008 requesting an exemption for recovered construction and demolition waste. The letter informed Mr Scimone that DECC had conducted an internal review of BBR's application and sought additional information before an assessment could be undertaken. In particular, it requested all characterisation sample analytical test results for the material the subject of the proposed exemption; a detailed explanation justifying the reason for the exemption; and any correspondence with other regulatory authorities.

1. On 1 May 2009 Mr Foxman, on behalf of BBR, submitted a modified exemption application for the same class of material as that previously submitted, but this time for a specific exemption for "select fill" from the licensing and waste levy requirements of the POEOA and POEO Waste Regulations. The application stated:

It is respectfully suggested that an approval of this proposal for a specific exemption will maximise the re-use of the material in ligament construction and/or landscaping projects. A refusal of the application would then necessitate the disposal of this material by landfill, which is an undesirable outcome.

1. Attached to the application was a table setting out the chemical and other material property requirements of the select fill. The table showed elevated levels of lead.

1. On 4 May 2009 Mr Foxman, on behalf of BBR, submitted updated information in support of BBR's application for an exemption with respect to "select fill". This letter stated:

An approval of BBR's application would be consistent with the DECC's stated requirement of fit for purpose. This material does not need to be disposed of by land fill and its re-use in the defined situation is appropriate. This application aims to maximise the re-use of material and is consistent with DECC's policies of minimising material disposed of by landfill.

1. On 11 June 2009 Mr Steve Hartley from DECC wrote to Mr Scimone in respect of BBR's application for an exemption for "select fill" seeking additional information.

1. On 7July 2009 further information was provided by Mr Foxman on behalf of BBR to DECC. With respect to processing operations, Mr Foxman confirmed his earlier advice that the material would be subjected to "visual screen" and then to mechanical crushing, a mechanical screen and a further visual screen.

1. On 14 July 2009 there was consideration of the matter by DECC by way of internal memo. The "current position" was stated as follows:

Two General Resource Recovery Exemptions were gazetted to commence on 1 April 2009 that adequately address the recovery and use of 'select fill' from waste derived from the processing of 'mixed C&D' waste. The Foreign material limits proposed by Botany Building Recyclers are approximately 1000% of the limits prescribed in the current General Exemption for Recovered Fines (from C&D processing).

1. By letter dated 30 July 2009, DECC informed BBR that there were insufficient grounds to enable DECC to proceed with the development of the specific exemption for "select fill" for which BBR had applied. This determination was confirmed on 15 September 2009 by DECC, in answer to a letter written by Mr Foxman to DECC on 19 August 2009 expressing his dissatisfaction with DECC's determination.

1. On 4 September 2009 Mr Foxman and Mr Scimone on behalf of BBR met DECC, now renamed the Department of Environment, Climate Change and Water ("DECCW") staff, to discuss "their case for a more liberal exemption".

1. Mr David McEwan, the Senior Compliance Officer employed by the council, swore an affidavit in these proceedings on 1 October 2010. On 8 September 2009, pursuant to a complaint received by the council, he inspected the land and took a number of photographs. He observed what appeared to be a large excavator, storage sheds, a relocatable office, and other earth moving equipment located on the land.

1. In its 15 September 2009 letter, DECCW stated that it had reviewed the decision and was satisfied that there were insufficient grounds to proceed with an exemption based on the information provided by BBR. It was DECCW's view that the current exemptions adequately provided for the land application of waste derived material that could be processed and recovered by construction and demolition waste recyclers. In particular the limits for "Foreign materials" reflected levels that could be "reasonably achieved after the removal of such materials with appropriate processing by construction and demolition recyclers in NSW".

1. On 16 September 2009 Mr McEwan inspected the council's files to which the 2009 consent related. This inspection revealed that:

(a) no construction certificate had been issued in respect of the 2009 consent; and

(b) no earthworks associated with the dwelling appeared to be noted on the plans accompanying the 2009 consent, nor were earthworks conditioned in the 2009 consent.

1. Later that day he had a telephone conversation with Mr Scimone, having tried to contact Mr Foxman directly, wherein he informed Mr Scimone that prior to starting any works on the land a private certifying authority had to be appointed and a construction certificate had to be obtained.

1. Also on the same day, Mr Foxman telephoned Mr McEwan and the following conversation took place (emphasis added):

He said: "I have a DA for a house and fire trails. The works we have started are site prep works for the house."

I said: "Council has received a report from the public concerned about the type of material being brought onto the property."

He said: "The material we have brought onto the property has been tested prior to it leaving my recyclers at Botany."

I said: "The consent requires a CC before you even put a site shed at the property. The issue is that Council has plans for a house that has no requirement for earth to be imported onto the property. Also no CC seems to have been issued as the weed plan has not been approved.

We also do not have any information with regards to the fire trail works and without the CC the commencement of works on site is a breach of the consent."

He said: "We will do whatever Council requires. I will get Joe to call you and provide the CC plans and the certifiers name and details."

1. On 17 September 2009 Mr McEwan forwarded two Notices of Intention to Serve an Order ("NISOs") foreshadowing the issuing of orders by the council to restore the land to the state it was in prior to the works having been undertaken. Later that day Mr Foxman had a conversation with Mr McEwan wherein he stated that the construction certificate would be received "within a couple of days". Mr Foxman requested that the council "hold off" on issuing the NISOs. Mr McEwan indicated that it was his normal practice to issue the NISOs but that if the construction certificate was obtained before 2 October 2009 the orders for restoration may not be issued. Mr McEwan said to Mr Foxman "also the importation of fill onto the property does not seem to be covered by the DA, however the fill issue is a separate issue and is under review".

1. On 24 September 2009 Mr McEwan once more attended the land to carry out a further visual inspection. Again, he took photographs recording his observations. In particular he observed a bulldozer and a large amount of material that had been deposited on the land. Vegetation had been cleared and a road cut into the hillside. It was his opinion that the material had been deposited onto the land and the road cut into the hillside within a couple of weeks prior to his inspection given the disturbed nature of the soil. It was his estimate that the fill covered an area of about 25m x 25m and was about 8m deep at its deepest part. It was also his estimate that more than 200 tonnes of material had been deposited onto the land. Mr McEwan also took video footage which was viewed by the Court.

1. Mr Trevor Wilson is a Senior Regional Operations Officer employed by DECCW and, at the time of swearing his affidavit on 15 February 2011, was Acting Unit Head in the Waste Management Section of that Department. On 30 September 2009 he conducted an inspection of the land with Dr Helen Prifti and Ms Jacqueline Ingham (both DECCW officers) and Mr McEwan. During the inspection he observed a stockpile of material containing brick, tile, plastics, glass, wood, soil and rock which appeared to have been processed as the materials had the appearance of being broken up to a relatively uniform size ("stockpile 1"). Located down a slope and east of this stockpile were two smaller stockpiles of material which appeared to contain natural material that was consistent with the natural material on the land ("stockpile 2" and "stockpile 3"). A fourth stockpile observed by him appeared to contain material that had been processed to a uniform size including concrete, brick and ceramics ("stockpile 4").

1. Mr Wilson took samples from stockpile 1 and stockpile 2 and submitted them for analysis by DECCW's Environmental Forensic and Analytical Science Section. On 2 November 2009 he was provided with a report of the analysis which showed that one of the samples from stockpile 1 contained Chrysotile asbestos and Amosite asbestos.

1. On 2 October 2009 Mr McEwan telephoned Mr Foxman. Mr Foxman told him that he would be providing a construction certificate for the roadworks and that work on the land had ceased. Mr Foxman also told Mr McEwan that "the fill has been deposited for the construction of the fire trail". Mr McEwan responded by telling Mr Foxman that he did not think that the importation of fill had been consented to.

1. On 6 October 2009 Mr Foxman attended the council. Mr McEwan told Mr Foxman that "works on the fire trail are not as approved". Mr Foxman produced papers and maps in respect of a construction certificate for the fire trail. He was informed by Mr McEwan that the work on the fire trail exceeded the relevant plans. Mr Foxman responded by stating "I will lodge a new DA ASAP". Later that day Mr Foxman was again advised by Mr McEwan that, in respect of the material stockpiled on the land "for use at a later date for the roads", any works undertaken by Mr Foxman required approval prior to those works commencing.

1. Also on 6 October 2009 Mr Foxman wrote to the council making the following representations in response to the NISOs issued by it. Representations were to the effect that the council had issued the 2009 consent for, amongst other things, "fire trails" and that the fire trails had been designed to comply with the requirements of the New South Wales Rural Fire Service ("the RFS") by accredited consulting engineers and surveyors. Accordingly "it is intended to carry out works in accordance with the development consent issued by Council." Therefore, he requested that the NISOs be withdrawn.

1. On 7 October 2009 Mr Foxman submitted an application for a construction certificate for road construction for the fire trail to Mr Craig Hardy, the fourth respondent, with respect to the 2009 consent. Mr Hardy determined the application by issuing the certificate ("the construction certificate").

1. It is convenient at this juncture to note that the evidence plainly disclosed that the construction certificate was issued after the construction of the fire trail had commenced. Section 109F(1A) of the EPAA provides that a construction certificate has no effect if it is issued after the building work to which it relates has been physically commenced on the land to which the relevant development consent applies. Accordingly, I find that the construction certificate, having breached this provision, has no effect and is void. It is not necessary to say anything further about Mr Hardy, the council is seeking no orders against him. Mr Hardy did not play an active role in the proceedings.

1. Also on 7 October 2009 lawyers for BBR responded to the letter from DECCW dated 15 September 2009 with respect to BBR's application for an exemption. The letter requested an indication of what further information BBR could provide so that "you may see your way clear to grant the exemption".

1. On 14 October 2009 Mr McEwan again attended the land to carry out a further visual inspection. Again he took photographs recording his observations. He observed:

(a) new fill had been deposited on the land to further develop the road he had observed on the last inspection;

(b) a second road had been cut and mounds of fill had been deposited along it;

(c) other areas of the land had been recently cleared; and

(d) a large dam had been constructed and the fill placed to form the dam wall was beginning to erode.

1. On 21 October 2009 the council issued a Penalty Infringement Notice and an Order 12 under s 121B of the EPAA to Mr Foxman requiring him to restore the land by returning and compacting the soil and turfing the areas affected by the works undertaken without consent. The reasons given for the order were that "the works had been carried out unlawfully" insofar as the works were not in accordance with the plans forming part of the 2009 consent.

1. On 4 November 2009 Mr Wilson attended the Banksmeadow Waste Facility. During the course of the inspection he inspected material in a storage bay which Mr Foxman indicated to him was the storage bay with the remains of the material that "I arranged to be transported to my property [the land]". Mr Wilson collected two samples of material he suspected to be asbestos from the material in the storage bay. They were submitted for analysis and on 8 March 2010 the results of DECCW's testing confirmed that one of the samples contained Chrysotile asbestos. Mr Wilson again inspected the land on 8 January 2010 and collected seven samples of material which he suspected to be asbestos from stockpile 1. Five of those samples contained Chrysotile asbestos.

1. On 10 November 2009 the EPA issued a Notice of Clean-Up Action to Foxman pursuant to s 91 of the POEOA. The Notice directed Foxman to cease transporting, or causing to be transported, material (comprising what "appears to be greater than 200 tonnes" stockpile of soil, rock, tiles, concrete, bricks, glass, wood and plastic) to and from the land and to cease moving it around the land. The Notice was issued pursuant to the inspection of the land on 30 September 2009, during which inspection samples were taken of the stockpiles.

1. On 24 November 2009 Mr McEwan carried out a fourth inspection of the land. Photographs were again taken by him, recording the following:

(a) new fill had been deposited on the land to further develop the first and second roads; and

(b) various earthmoving equipment was visible on the land.

1. On 7 December 2009 Mr McEwan carried out a fifth inspection of the land. He observed, as recorded in photographs taken by him, new fill placed on the land and a sediment control barrier around part of the fill. Moreover, a third road had been cut and vegetation had been cleared to construct this road.

1. On 16 December 2009 Mr Foxman provided to DECCW sampling data undertaken by ALS Laboratory Group ("ALS") on samples collected on 10 November 2009, to demonstrate compliance with The recovered aggregate exemption 2008.

1. On 15 January 2010 Mr McEwan carried out a sixth inspection of the land and again took photographs. Again he observed fill placed on the land and a sediment control barrier around part of the fill.

1. Also in January 2010 the EPA issued a Variation of Notice of Clean-Up Action to Foxman under s 110 of the POEOA, which was, as it stated, a variation of the notice issued in November 2009. The Variation Notice required Foxman to survey the stockpile (now deemed to be "waste" under the POEOA) and to remove the waste and take it to a waste facility that was able to lawfully accept asbestos contaminated waste.

1. The Variation Notice was issued because the laboratory analysis of the samples taken of the stockpile revealed the presence of asbestos that did not comply with The recovered aggregate exemption 2008 or The recovered aggregate exemption 2010. Subsequent testing and correspondence between DECCW and Mr Foxman demonstrated that the material containing asbestos originated from material at the Banksmeadow Waste Facility. As noted above, further testing of the stockpile was undertaken by DECCW on 8 January 2010, again confirming the presence of asbestos. Accordingly, DECCW determined that the stockpile was "waste" for the purposes of the POEOA.

1. Mr McEwan carried out his seventh inspection of the land on 10 February 2010. He observed that the fill previously photographed by him on the sixth and fifth inspections had partly eroded.

1. On 2 March 2010 BBR made a new application to DECCW (through Quadro Australia Pty Ltd, or "Quadro") for a specific exemption for processed waste. On this occasion the application specifically sought permission to apply the processed waste to the land.

1. Mr David Savage, the council's Team Leader - Compliance, swore an affidavit on 7 October 2010. On 9 March 2010, Mr Savage had caused a stop work order to be issued to Mr Foxman and the Foxman entities. Works did not, however, cease on the land.

1. On 12 April 2010 DECCW wrote to Quadro stating that the application had been refused for reasons that included the fact that a "detailed explanation justifying the reason for the proposed foreign material limits was not provided" as requested. Accordingly, DECC could not be satisfied that the material the subject of the exemption was not "fit for purpose" as specified in condition 8.3 of The recovered aggregate exemption 2010.

1. On 14 April 2010 Mr McEwan carried out his eighth inspection, again recording what he observed by way of photographs. He observed that a large amount of new material had been placed on the land which included broken pieces of building material. The material appeared to be used as fill to create a fourth road. In addition he observed a bulldozer and that new material had been placed upon the land to create a fifth road. The fifth road had been constructed by fill and also by cutting through the vegetation and landscape.

1. On 15 April 2010 he again attended the land to carry out a ninth inspection and took photographs. He observed a bulldozer moving material onto the land apparently to construct the fifth road.

1. On 22 April 2010 Mr McEwan carried out his tenth inspection by both road and air and took photographs. On the ground he observed new material had been placed on the land since his eighth inspection. He also noticed a bulldozer moving material onto the land for the apparent purpose of creating the fifth road. By helicopter, Mr McEwan took various aerial photographs of the five roads, the new dam, and the clearing of vegetation. He also observed new clearing and fill had been placed into a creek. Moreover, he saw that new mounds of material had been deposited upon the fourth road. This material had been placed upon the land since his eighth inspection. The aerial photographs demonstrated starkly the extent of the works being carried out on the land.

1. On 22 April 2010 Mr Wilson inspected the land with another DECCW officer, Mr Josh Godbee, to inspect the sediment controls around stockpile 1 on the land and to inspect materials that had been deposited upon the land adjacent to Evelyns Range Road (in the Western Fill Area). He observed that the sediment fences were all in working order and no material from stockpile 1 appeared to have been washed into a creek line to the east of that stockpile. Mr Wilson observed a piece of material in stockpile 1 that he suspected could be asbestos. He collected a sample for testing.

1. Mr Wilson then inspected the land to the north-east (in the Eastern Fill Area). He noticed that brown soil like material had been deposited on the land in the form of a ramp. The material contained soil mixed with broken glass, wood, brick, rock and roof tiles. He supervised Mr Josh Godbee undertaking sampling of the brown soil like material. Five samples of material suspected to contain asbestos were collected.

1. The samples were submitted for laboratory analysis of the constituent material of the fill as against The recovered aggregate exemption 2010 and The fines general exemption 2010. As stated in his affidavit affirmed 10 February 2011, it was Mr Godbee's conclusion, based on the results of that analysis, that the tested fill material did not meet either waste exemption criteria.

1. On 3 May 2010 Mr McEwan attended the land to carry out his eleventh inspection. Mr Foxman was present at that time. The following conversation took place between Mr Foxman and Mr McEwan (emphasis added):

PF: "The material has been stockpiled on site for future use as road base. Almost all of the material brought on to the Land came from Botany Building Recyclers.

DM: "Ok, is it still your intention to lodge a DA for the dam and tracks not covered by the current DA?"

PF: "I've been told not to answer any questions by my solicitor, but yes. I intend to lodge a further DA for two dams combined with a continued use DA for any tracks not covered by the current DA.

DM: "Do we need masks for the asbestos, has the material been tested?"

PF: "The material had been tested and no asbestos had been found."

Mr Foxman also told Mr McEwan that the material had been tested prior to being deposited on the land and those tests had been "negative for asbestos".

1. On 6 May 2010 the samples taken from the Western Fill Area on 22 April 2010 during Mr Wilson's inspection were found to be contaminated with asbestos insofar as one of the samples tested positive to Chrysotile asbestos. On the same day, the analysis of samples taken from the Eastern Fill Area on 22 April 2010 during the same inspection revealed that three of the five samples contained Chrysotile asbestos and two of the five samples also contained Amosite asbestos. Two of the five samples contained no asbestos.

1. Affidavits of Mr Joshua Godbee (affirmed 10 February 2011) and Dr Helen Prifti (sworn 11 February 2011) supported the facts deposed to by Mr Wilson in his affidavit.

1. The affidavits of Dr Helen Prifti and Mr Joshua Godbee also served another purpose. In relation to the 30 September 2009 site inspection with Mr Wilson and Mr McEwan, where five samples of waste were collected and subjected to laboratory analysis by DECCW's Environmental Forensic and Analytical Science section, Dr Prifti tested the samples against the requirements under The recovered aggregate exemption 2008. The test results for the composite samples were compared to the "Absolute maximum concentrations" in Table 2 of that exemption. One sample was also sent to Network Geotechnics Pty Ltd for an analysis of foreign materials. The further testing revealed that the sample exceeded the thresholds permitted for lead and physical contaminants, and therefore, the composited sample did not meet the conditions of The recovered aggregate exemption 2008.

1. The affidavit of Mr Godbee was similar in nature. The five samples of material he had collected during the 22 April 2010 site inspection with Mr Wilson were submitted for laboratory testing by DECCW. The five samples were composited by the laboratory and tested against the requirements under The recovered aggregate exemption 2010 and The continuous process and batch process recovered fines exemption 2010. Results of the testing of the composite sample, when compared to the Absolute maximum thresholds permitted within The recovered aggregate general exemption 2010, demonstrated that the material contained in the sample exceeded the Absolute maximum threshold (0.3%) for rubber, plastic, paper, cloth, paint, wood and other vegetable matter (0.8%). When the test results were compared against the The continuous process and batch process recovered fines general exemption 2010, the material exceeded the absolute maximum thresholds (10.0) for pH (10.4) and the absolute maximum threshold (0.3%) for glass metal and rigid plastics (0.8%). Accordingly, it was his opinion that the material sampled and tested did not meet the criteria for either exemption.

1. The evidence of Mr Wilson, Mr Godbee and Dr Prifti was not challenged by the Foxman entities.

1. It was, moreover, consistent with the evidence of Ms Barbara Hanna, an employee of ALS. She deposed in an unchallenged affidavit sworn 25 February 2011 that:

(a) on or about 30 May 2008 BBR initially provided to ALS a copy of The recovered aggregates exemption 2008 and The recovered fines exemption 2008;

(b) during the period 4 June 2008 to 2 June 2010 samples were provided by BBR to ALS on a regular basis for testing. ALS was not involved in the collection of these samples. ALS was requested to test for asbestos pursuant to work orders dated 23 June 2008, 22 October 2009 and 2 December 2009; and

(c) asbestos was found in the sample contained in the work order dated 22 October 2009. ALS notified BBR of the results of this test on 2 November 2009.

The 26 May 2010 Meeting

1. On 26 May 2010 Mr Foxman attended the council for a meeting. As Mr McEwan agreed in cross-examination, prior to this meeting Mr Foxman's attitude could be characterised as willing to "do whatever council requires" to rectify the situation he found himself in with respect to the deposited fill on the land.

1. Present at the meeting were Mr Foxman, Mr Foxman's legal representative, the council's legal representative, Mr Savage, Dr Daniel Martens (a civil engineer retained by the council) and a secretary taking notes. At the meeting Mr Foxman was told that the council sought the removal of the material that had been brought onto the site. The issue of asbestos present in the material was raised. At one point it was suggested that Mr Foxman surrender his consent and submit a new development application for approval for the works with respect to the construction of the roads, the dam and initial work compaction and management of the land fill.

1. As Mr McEwan conceded in cross-examination, Dr Martens suggested that Mr Foxman lodge a development application to deal with the material deposited on the land that would cover the dam and initial work to compact the landfill and to manage it, so that the council could be satisfied that there was no harm to the environment or risk to public health. Dr Martens further suggested that Mr Foxman lodge both a development application and a s 96 modification in this regard. He went on to state at the meeting that an environmental impact statement would be required because the material was, in his opinion, waste comprising, as it did, contaminated fill. However, as Mr McEwan agreed in cross-examination, at the conclusion of the meeting, the issue of whether or not the material deposited on the land was waste or not, remained a live issue.

1. Mr McEwan did not disagree with Dr Martens' suggested approach. In fact, it was his opinion, formed "as far back as 6 October [2009]", that a legal planning process should be adopted whereby the work that had been carried out and was proposed to be carried out could be regularised provided it was done so in a manner that ensured that there was no harm to the environment or risk to public health. This regularisation included the retention of some of the material deposited on the land, subject to the appropriate environmental and public health risks being accommodated.

Attempts at Resolution with the Council

1. Between 27 May and 13 August 2010, further correspondence passed between the parties in an attempt to resolve the matter. The salient features of this correspondence may be summarised as follows:

(a) on 27 May 2010 the lawyers for the Foxman entities wrote to the council referring to the conference held at the council's chambers on 26 May 2010 and proposed that the parties consult with each other and compare test results;

(b) on 1 June 2010 the council's lawyers wrote to those of the Foxman entities rejecting this suggestion. Instead, the council requested that the Foxman entities provide to it all test results that it had in respect of the material deposited on the land which were said to demonstrate compliance with The recovered aggregate exemption 2008 and The recovered fines from construction and demolition waste processing exemption 2009. Enclosed was an irrevocable undertaking for the Foxman entities to sign. The undertaking provided that the Foxman entities would: cease carrying out of all works on the land; cease depositing any further material of any composition on the land; cease moving the current deposited material about the land; acknowledge the assertion by the council that the works complained of were unlawful and that the council could commence legal proceedings seeking orders requiring the demolition, removal or rectification/remediation of those works; and within 21 days lodge all applications with the council, and other relevant regulatory authorities, so as to regularise the works/activities on the land. The undertaking would lapse on 30 June 2010 unless extended by agreement;

(c) on 9 June 2010 lawyers for the Foxman entities responded expressing concern that DECCW had not provided any test results showing any asbestos contamination and requesting that the council provide such results. The letter went on to say that the Foxman entities would be prepared to lodge a s 96 modification application covering the new tracks and roads constructed and the fill material. The Foxman entities offered to pay the council's legal costs in the sum of approximately $85,000;

(d) on 16 June 2010 lawyers for the council summarised the council's position in a letter to the Foxman entities' lawyers as follows:

(i) that the Foxman entities pay the council's investigation and legal costs referred to in its earlier letter;

(ii) that the Foxman entities give the undertakings set out in the irrecoverable undertaking document provided to them earlier;

(iii) that the Foxman entities provide every test result it held in respect of material deposited on the land;

(iv) that the Foxman entities needed "to regularise the unlawful depositing of material upon the land";

(v) rejecting any suggestion that a s 96 modification application would suffice because it would not result in a development that was substantially the same development for which the 2009 consent was granted. It stated that the proposed s 96 application "would have little, if any, prospect of success";

(vi) stating that the council was not convinced, in the absence of any testing demonstrating otherwise, that the Foxman entities could avail themselves of the EPA exemptions. The council went on to state that it was prepared to provide copies of the complete testing by Dr Martens "upon your client agreeing to meet Council's costs as previously advised". A summary of Dr Martens' findings and testings was contained in the letter. These tests showed that the fill materials at the site did not meet the criteria outlined in either The continuous process and batch process recovered fines exemption 2010 or The recovered aggregate exemption 2010; and

(vii) that the Foxman entities should lodge a development application seeking consent for the use of the first road currently constructed and also a development application for the construction of new fire trails and tracks using the materials on site. Also that a development application be lodged to otherwise dispose of the material on the site in a suitable location on the land, and in addition, development applications should be lodged for the construction of the dam and/or its use, and for the rehabilitation of the creek which had been damaged by the works;

(e) on 30 June 2010 lawyers for the Foxman entities responded. The Foxman entities proposed to pay the council's reasonable legal costs and disbursements of approximately $85,000. Also enclosed was a revised set of undertakings which included a clause requiring that they lodge within 90 days all applications with the council and any other relevant regulatory authority necessary to regularise the works/activities on the land;

(f) on 30 June 2010 lawyers for the Foxman entities wrote to the council enclosing a signed version of the amended irrevocable undertaking. Enclosed were test results from ALS;

(g) between 8 and 9 July 2010, various correspondence passed between the council and the Foxman entities concerning the adequacy of answers given by the Foxman entities to questions earlier posed by the council concerning the nature and the scope of the works and activities on the land; and

(h) on 19 July 2010 the council's lawyers wrote to the Foxman entities' lawyers stating that in their opinion, having regard to the evidence obtained from their investigations, the quantity and nature of the material deposited on the land, which included a "wide distribution of asbestos that is classified as Special Waste (asbestos waste)" and lead that exceeded contaminant thresholds and other contaminants, the council had formed the view that the material had to be removed. The council rejected the amended irrevocable undertaking provided by the Foxman entities on 30 June 2010 because it did not require removal of the waste. Accordingly, the council requested the Foxman entities to execute an enclosed irrevocable undertaking by 22 July 2010 that essentially required them to remove the waste from the land within 120 days and remediate the land within 120 days after the removal of the waste. The letter concluded by stating that if the Foxman entities did not give the undertaking, or an acceptable alternative, the council may commence legal proceedings in the Court.

1. Mr McEwan confirmed in cross-examination the respective positions of the parties as described above.

1. On 1 October 2010 Mr McEwan telephoned WSN Environmental Solutions to confirm what the tipping fees would be regarding the disposal of waste. He was told that waste with asbestos had a minimum charge of $145 for 300kgs and the cost per tonne was $380. Restricted waste was $200 per tonne and general waste was $196 per tonne. It was common ground that no tipping fees have been paid by any of the Foxman entities in relation to the placement of the impugned material on the land.

1. Finally, on 19 October 2010 an email was received by Mr Moore at the EPA and copied to Mr Foxman. Attached was a report from VDM Consulting dated 11 October 2010. VDM Consulting had been engaged by Mr Foxman to ascertain the suitability of recycled materials derived from construction and demolition waste to be used for the fire trail road construction. The analysis by VDM Consulting concluded that the proposed material was appropriate, from an engineering perspective, to be used for the construction of the proposed fire trail. As such the material was "fit for purpose".

1. The letter further noted that the fire trail was to be constructed pursuant to the 2009 consent. It stated "construction of the fire trail will involve significant earthworks requiring the cut and fill of the fire trail formation, the bulk filling provision of a subgrade improvement layer and finally the placement of a 200mm thick sub-base layer". However, the letter went on to state the following (emphasis added):

It is proposed that the following construction materials will be used:

Bulk filling and subgrade improvement	50mm recycled concrete aggregate (RCA) Class S or equivalent
Sub-base layer	20mm RCA material Class R2 or equivalent

A sample of the proposed recycled crushed concrete material has been tested and analysed by Resource Laboratories. A copy of their rest report is attached to this letter. The 4 day soaked Californian Bearing Ratio (CBR) test produced the following results:

CBR Value (%)	60
Foreign Material (Max Allow %)
Asbestos	0
Metal	0
Glass and Ceramics	2.8
Plaster	0.84
Rubber, plastic, paper, cloth and paint	1.2
Wood & vegetable matter	2.1

The above results show that the ex-yard RCA possesses a satisfactory CRB strength but does not satisfy maximum allowable percentages of foreign material nominated by the Protection of the Environment Operations (Waste) Regulations for exempt material. Nevertheless it is noted that RCA exempt material is typically used as an alternative to dense gradebase materials in upper base course layers.

Evidence of the Foxman Entities

1. With the exception of experts retained by the Foxman entities, no one, including Mr Foxman, gave evidence on their behalf. It may be assumed that this was because the evidence would not have assisted their case (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298).

Summary of the Works Carried Out on the Land

1. In summary, from 8 September 2009 until May 2010, works were carried out on the land involving the importation and placement of fill material on the land, together with associated earthworks and clearing ("the works"). The works involved depositing onto the land fill material sourced from the Banksmeadow Waste Facility. Approximately 15,700m³ were deposited. The fill material was placed primarily in the areas on the land known as "the Western Fill Area" and "the Eastern Fill Area" (or, as was also referred to in the survey plan of cut and fill areas prepared by Lean & Hayward Pty Ltd attached to the amended summons, "Cut/Fill Area 1" and "Cut/Fill Area 2 (Ramp)" respectively).

1. The works carried out on the land also included the use of a grader and other earthmoving equipment to create an earthen track for a distance of approximately 650m along where a watercourse ("WC2") had previously been located. Approximately 230m of the left bank and approximately 250m of the right bank of the watercourse were removed. The new bank of the watercourse was the edge of the earthen track referred to above. The works also included creation of a dam towards the northern boundary of the land, using material sourced from the land. The dam impeded the flow of a watercourse ("WC1") in that location causing harm to the local ecology.

The Council's Contentions

1. The council contends that the waste material deposited onto the land in both Western and Eastern Fill Areas is significantly contaminated with asbestos, so that it may be classified as "asbestos waste", being a sub-set of "special waste" as defined in Pt 3 of Sch 1 of the POEOA. The material is also asserted to contain elevated levels of lead.

1. The council further contends that the placement of the waste on the land has caused and is causing pollution of the land and pollution of waters within the meaning of the POEOA because of the contaminants in the waste material and the possible migration of particulate matter down the steep slopes located on the land to the watercourse, as a result of the structural instability of the fill in certain areas.

1. The council claims that the placing of material on the land was carried out without the necessary development consent as required by s 76A(1)(a) of the EPAA, having regard to the requirements of SREP 20 and the definition of "land filling operation" in the WLEP. Moreover, not only was the development consent not obtained as required, but, having regard to the nature of the fill, comprising, according to the council, waste material, the use of the land by the Foxman entities constituted a "waste management facility or works", which was designated development pursuant to cl 32 of Sch 3 of the EPA Regulations.

1. Insofar as the works involved the construction and upgrading of fire trails, the works were carried out, the council alleges, in contravention of the 2009 consent in the following respects (as pleaded in the amended points of claim):

(a) that the works on the land had been carried out in breach of conditions 1(1) and 1(2), 5(1), 6(3), 8(1) and 8(2) and 10(4) of the 2009 consent;

(b) that the placement of fill on the land was permissible only with consent pursuant to the provisions of SREP 20 and that, as required, no consent had been sought or granted under SREP 20 to carry out these filling works;

(c) these filling works constituted a "land filling operation" as defined in the WLEP being a work or other activity on land for any purpose which has the effect of materially altering the shape or natural form of land;

(d) that the filling works constituted the use of land for the purpose of a "waste management facility or works" as defined in cl 32 of Sch 3 of the EPA Regulations;

(e) the carrying out of a "land filling operation" as defined in the WLEP was not permitted under the 2009 consent;

(f) the use of the land as a "waste management facility or works" as defined in the EPA Regulations was not permitted under the 2009 consent; and therefore

(g) the filling works constituted the carrying out of development without consent in contravention of s 76A(1)(a) of the EPAA.

1. In respect of the breaches of the WMA, the council argued that the works involved the carrying out of a work and the deposition of material on "waterfront land" as defined in that Act, and therefore, required, a "controlled activity" approval under the provisions of Pt 3 of the WMA.

Regulatory Framework

POEOA

1. Sections 120, 142A, 143 and 144 of the POEOA state:

120 Prohibition of pollution of waters

(1) A person who pollutes any waters is guilty of an offence.

(2) In this section:

pollute waters includes cause or permit any waters to be polluted.

142A Pollution of land

(1) A person who pollutes land is guilty of an offence.

Maximum penalty:

(a) in the case of a corporation-$1,000,000, and in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or

(b) in the case of an individual-$250,000, and in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.

(2) In this section:

pollute land includes cause or permit any land to be polluted.

143 Unlawful transporting or depositing of waste

(1) Offence

If a person transports waste to a place that cannot lawfully be used as a waste facility for that waste, or causes or permits waste to be so transported:

(a) the person, and

(b) if the person is not the owner of the waste, the owner, are each guilty of an offence.

...

(4) Definitions

In this section:

...

owner of waste includes, in relation to waste that has been transported, the person who was the owner of the waste immediately before it was transported.

144 Use of land as waste facility without lawful authority

(1) A person who is the owner or occupier of any land and who uses the land, or causes or permits the land to be used, as a waste facility without lawful authority is guilty of an offence.

Maximum penalty:

(a) in the case of a corporation-$1,000,000 and, in the case of a continuing offence, a further penalty of $120,000 for each day the offence continues, or

(b) in the case of an individual-$250,000 and, in the case of a continuing offence, a further penalty of $60,000 for each day the offence continues.

1. "Pollution" is defined in the Dictionary of the POEOA to mean:

pollution means:

(a) water pollution, or

(b) air pollution, or

(c) noise pollution, or

(d) land pollution.

1. In turn, "land pollution" is defined in the same Dictionary to mean:

land pollution or pollution of land means placing in or on, or otherwise introducing into or onto, the land (whether through an act or omission) any matter, whether solid, liquid or gaseous:

(a) that causes or is likely to cause degradation of the land, resulting in actual or potential harm to the health or safety of human beings, animals or other terrestrial life or ecosystems, or actual or potential loss or property damage, that is not trivial, or

(b) that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter, but does not include placing in or on, or otherwise introducing into or onto, land any substance excluded from this definition by the regulations.

1. The term "waters" is widely defined in the Dictionary of the POEOA to mean:

waters means the whole or any part of:

(a) any river, stream, lake, lagoon, swamp, wetlands, unconfined surface water, natural or artificial watercourse, dam or tidal waters (including the sea), or

(b) any water stored in artificial works, any water in water mains, water pipes or water channels, or any underground or artesian water.

1. "Water pollution" is defined in the same Dictionary to mean:

water pollution or pollution of waters means:

(a) placing in or on, or otherwise introducing into or onto, waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed, or

(b) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any refuse, litter, debris or other matter, whether solid or liquid or gaseous, so that the change in the condition of the waters or the refuse, litter, debris or other matter, either alone or together with any other refuse, litter, debris or matter present in the waters makes, or is likely to make, the waters unclean, noxious, poisonous or impure, detrimental to the health, safety, welfare or property of persons, undrinkable for farm animals, poisonous or harmful to aquatic life, animals, birds or fish in or around the waters or unsuitable for use in irrigation, or obstructs or interferes with, or is likely to obstruct or interfere with persons in the exercise or enjoyment of any right in relation to the waters, or

(c) placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter,

and, without affecting the generality of the foregoing, includes:

(d) placing any matter (whether solid, liquid or gaseous) in a position where:

(i) it falls, descends, is washed, is blown or percolates, or

(ii) it is likely to fall, descend, be washed, be blown or percolate,

into any waters, onto the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, or

(e) placing any such matter on the dry bed of any waters, or in any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted,

if the matter would, had it been placed in any waters, have polluted or have been likely to pollute those waters.

1. The term "waste" is defined in the Dictionary to the POEOA as follows:

waste includes:

(a) any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment, or

(b) any discarded, rejected, unwanted, surplus or abandoned substance, or

(c) any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification by a separate operation from that which produced the substance, or

(d) any processed, recycled, re-used or recovered substance produced wholly or partly from waste that is applied to land, or used as fuel, but only in the circumstances prescribed by the regulations, or

(e) any substance prescribed by the regulations to be waste.

A substance is not precluded from being waste for the purposes of this Act merely because it is or may be processed, recycled, re-used or recovered.

1. Clause 3B of the POEO Waste Regulations prescribes the following circumstances for the purpose of paragraph (d) of the definition of "waste" referred to in the Dictionary:

3B Definition of "waste"

(1) For the purposes of paragraph (d) of the definition of waste in the Dictionary to the Act, the following circumstances are prescribed:

(a) in relation to substances that are applied to land, the application to land by:

(i) spraying, spreading or depositing on the land, or

(ii) ploughing, injecting or mixing into the land, or

(iii) filling, raising, reclaiming or contouring the land,

(b) in relation to substances that are used as fuel, all circumstances.

(2) Subclause (1) (a) does not apply where the substances concerned are either bulk agricultural crop materials or manure.

1. Similarly cl 39(1) of Sch 1 to the POEOA is as follows:

39 Waste disposal (application to land)

(1) This clause applies to waste disposal by application to land, meaning the application to land of waste received from off site, including (but not limited to) application by any of the following methods:

(a) spraying, spreading or depositing on the land,

(b) ploughing, injecting or mixing into the land,

(c) filling, raising, reclaiming or contouring the land.

1. The term "waste facility" is defined in the Dictionary of the POEOA to mean "any premises used for the storage, treatment, processing, sorting, or disposal of waste (except as provided by the regulations).

1. Clause 42 of the POEO Waste Regulations states:

42 Special requirements relating to asbestos waste

(1) This clause applies to any activity that involves the transportation, disposal, re-use or recycling of any type of asbestos waste, regardless of whether the activity is required to be licensed.

(2) A person who carries on an activity to which this clause applies must comply with the requirements specified in this clause in relation to the activity concerned.

Maximum penalty: 400 penalty units in the case of a corporation, 200 penalty units in the case of an individual.

(3) The requirements relating to the transportation of asbestos waste are as follows:

(a) bonded asbestos material must be securely packaged at all times,

(b) friable asbestos material must be kept in a sealed container,

(c) asbestos-contaminated soils must be wetted down,

(d) all asbestos waste must be transported in a covered, leak-proof vehicle.

(4) The requirements relating to the off site disposal of asbestos waste are as follows:

(a) asbestos waste in any form must be disposed of only at a landfill site that may lawfully receive the waste,

(b) when asbestos waste is delivered to a landfill site, the occupier of the landfill site must be informed by the person delivering the waste that the waste contains asbestos,

(c) when unloading and disposing of asbestos waste at a landfill site, the waste must be unloaded and disposed of in such a manner as to prevent the generation of dust or the stirring up of dust,

(d) asbestos waste disposed of at a landfill site must be covered with virgin excavated natural material or other material as approved in the facility's environment protection licence:

(i) initially (at the time of disposal), to a depth of at least 0.15 metre, and

(ii) at the end of each day's operation, to a depth of at least 0.5 metre, and

(iii) finally, to a depth of at least 1 metre (in the case of bonded asbestos waste or asbestos-contaminated soils) or 3 metres (in the case of friable asbestos material) beneath the final land surface of the landfill site.

(5) A person must not cause or permit asbestos waste in any form to be re-used or recycled.

(6) In this clause:

bonded asbestos material means any material (other than friable asbestos material) that contains asbestos.

friable asbestos material means any material that contains asbestos and is in the form of a powder or can be crumbled, pulverised or reduced to powder by hand pressure when dry.

1. Pursuant to cls 51 and 51A of the POEO Waste Regulations, the EPA could, in respect of material falling under paragraph (d) of the definition of "waste", grant an exemption that exempts a person or class of persons from complying with licensing requirements for scheduled development work and scheduled activities (premises and non-premises based) and for contributions payable by a licensee of a waste facility contained in the POEOA (ss 47-49 and 88).

1. Clause 51A provides as follows:

51A Exemptions relating to certain waste

(1) This clause applies to:

(a) waste that is waste by virtue of paragraph (d) of the definition of waste in the Dictionary to the Act, and

(b) any other waste that is used in connection with a process of thermal treatment, and

(c) coal washery rejects (within the meaning of Part 2).

(2) The EPA may from time to time grant an exemption under clause 51 that exempts a person or class of persons from any one or more of the following provisions in relation to an activity or class of activities relating to waste to which this clause applies:

(h) the fire trails can be made stable but, as Dr Martens noted, not without the risk of disturbing the asbestos present and, as Mr Walker and Dr Martens stated, not without the importation of considerable quantities of additional fill and the completion of further significant earthworks, excavation, recompaction and drainage works. The comment made above in (g) concerning Mr Walker's evidence is reiterated; and

(i) the disposal of the material to landfill elsewhere would not be contrary to social and governmental policy as submitted by Foxman and Mr Foxman. While the re-use and recycling of material fulfils a commendable social purpose as reflected in numerous government policies, this purpose must be balanced against the risks to the environment and to human safety posed by land contaminated with asbestos on a continuing basis. Furthermore, as the council submitted in reply, although these guidelines express a general preference, where possible, for asbestos contaminated fill to be left in situ, this, as the Western Australian Guidelines note, depends on the level of contamination (here, unacceptably high); adequate asbestos contamination investigations and risk assessments having taken place (here, questionable); and whether or not other contaminants or additional demolition debris are present (here, they are, namely, lead and other foreign materials). According to the Contaminated Sites Guidelines for the NSW Site Auditor Scheme, regard must also be had to whether the on-site treatment proposed will destroy or reduce to an acceptable level the asbestos and other contaminants present (here, unlikely) and whether a large quantity of soil is involved (here, it is), both factors which militate against on-site remediation. Moreover, as the Contaminated Sites Guidelines for the NSW Site Auditor Scheme state in sections 4.3.7 and 4.3.9, when reviewing proposals relating to the management of contaminated waste, site auditors "must" have regard to the POEOA and the POEO Waste Regulations, which, in the case of asbestos and asbestos waste, would include cl 42 of those Regulations. Finally, both guidelines are just that, and while undoubtedly a relevant consideration, as Dr Martens stated in his oral evidence, the guidelines are not universally applied by all practitioners in the field; and

(j) while the ordering of the removal of the fill material may be inconsistent with draft national guidelines for dealing with the remediation of sites containing asbestos, the precise detail of these guidelines is not known and, in any event, each case turns on its individual facts and circumstances.

1. These facts and circumstances presently include:

(a) the objects in s 3 of the POEOA and s 5 of the EPAA (as cited above), balancing as they do, the need for economic development and the need to protect the environment;

(b) the fact that the deposition of the waste onto the land has involved serious contraventions of the POEOA, the EPAA and the WMA that were more than merely trivial or technical breaches of those statutes. Having established this, Foxman and Mr Foxman should be restrained from continuing any further breach of the EPAA, the POEOA or the WMA (Venn at [288] and the authorities referred to thereat);

(c) there is a public interest in the proper enforcement and public administration of environmental and planning statutes and the protection of the environment (Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1 at [56] and Venn at [339]);

(d) all of the fill material is significantly contaminated with asbestos and has concentrations of lead and foreign materials, which falls outside the waste exemption requirements and, in its current state, it therefore poses a risk to human safety and the environment;

(e) the waste deposition has left an unstable structure from a civil engineering perspective, with a slope slippage having already occurred on the land and fire trails and roads that are not trafficable in all weather conditions. Erosion, sedimentation and drainage problems continue to be an issue. Further earthworks will be required in order to stabilise the deposited waste material, exacerbating the risk of harm described above. In short, it is not a "static development" (Sedevcic at 340 and Venn at [341]-[342]);

(f) the Foxman entities have acted in deliberate and determined contravention of the directions of the council and other regulatory agencies in importing the waste fill material to the land in the following manner (Venn at [344]):

(i) they were on notice as early as August 2008 from TCG Planning that the placement of the fill would require specific development consent for this use; could constitute designated development; and could impact EECs and watercourses present on the land;

(ii) they were aware that the material proposed to be use as fill on the land, and was in fact used as fill, was waste. They were aware that the material did not fall within the waste exemptions and that BBR had been unsuccessful in its application for a waste exemption for "select fill" to displace the licensing requirements of the POEOA and the requirements of the EPAA;

(iii) with the desire to use the material as landfill, Mr Foxman, and not BBR, applied for development consent for fire trails and a residential dwelling utilising "minimal cut and fill" without disclosing to the council the intention to deposit a large volume of processed waste material on the land from the Banksmeadow Waste Facility;

(iv) they continued to import fill onto the land after the council had raised its concerns as early as October 2009, and despite the council having issued two NISOs and a stop work order and a restoration order issued under s 121B of the EPAA;

(v) they were on notice as early as November 2009 that the fill contained or was likely to contain asbestos;

(vi) they continued to transport and deposit waste fill onto the land in defiance of a clean-up notice and a varied clean-up notice issued under the POEOA, with the knowledge at that time that the material contained asbestos and failed to meet waste exemption requirements; and

(vii) I repeat the facts set out above at [206];

(g) as the entities responsible for causing harm to the environment occasioned by their contraventions of the EPAA, the POEOA and the WMA, Mr Foxman and Foxman should be responsible for remedying it. Such a course implements the polluter pays principle, which is also one of the principles of ecologically sustainable development (see, for example, s 3(a) of the WMA, s 5(a)(vii) of the EPAA and s 3(a) of the POEOA). "Expressed simply, this principle holds that those who generate pollution or waste should bear the costs of containment, avoidance or abatement" (Venn at [328]-[329]);

(h) there is no evidence before the Court that either Mr Foxman or Foxman cannot afford to pay for the removal of the fill and the rehabilitation of the land harmed by their conduct (Venn at [336]). In any event, any economic prejudice to Mr Foxman or Foxman caused by making the orders needs to be balanced against the prejudice to the public interest if the orders are not made (Venn at [337]); and

(i) there is no conduct on the part of the council which would preclude the granting of the relief. I do not accept the suggestion that the council, in seeking to resolve the matter at the 26 May 2010 meeting and thereafter, gave tacit acceptance to the retention of the waste fill on the land.

1. In my opinion, having regard to all of the facts and circumstances of this case, the weighing exercise falls heavily in favour of making the orders restraining any future breach of the EPAA, the POEOA or the WMA, and to remediate and rehabilitate the land by, amongst other things, removing the entirety of the waste fill material unlawfully brought onto the land. It is therefore appropriate that the injunctive and remedial relief sought by the council in the 2010 proceedings be granted.

The 2011 Proceedings: Designated Development

1. In the 2011 proceedings, the applicant, Foxman, seeks declaratory relief, namely, that the development described in the 2010 SEE in respect of the land is not "waste management facilities or works" as that term in defined under cl 32(1)(d) of Sch 3 of the EPA Regulations and is therefore not "designated development" within the meaning of that term pursuant to s 77A of the EPAA and Sch 3 of the EPA Regulations.

1. The facts relevant to the 2011 proceedings were not in contention and were contained in the affidavit of Mr Charles Lethbridge, a solicitor retained by Foxman.

1. On 20 December 2010, Foxman lodged with the council a development application in respect of the works on the land comprising:

(a) the development application form;

(b) the 2010 SEE (referred to above with respect to the 2010 proceedings);

(c) a Flora and Fauna Assessment Report;

(d) a Remedial Action Plan by JBS (also referred to above with respect to the 2010 proceedings);

(e) an Ecological Review;

(f) a Geotechnical Opinion by Mr Bruce Walker of Jeffery and Katauskas dated 2 December 2010 (the Jeffery and Katauskas Report referred to above with respect to the 2010 proceedings);

(g) a Bushfire Hazard Assessment Report;

(h) a Fluvial Geomorphology and Impact Assessment; and

(i) a BASIX certificate.

1. The documents were delivered by hand to the council on 20 December 2010.

1. On 21 December 2010 the council rejected the development application. In doing so, the council stated that:

(a) the proposed development concerned works that stored waste, or used or re-used material from waste, and that these works were located within 100m of a natural waterbody;

(b) as a consequence, the proposed development was for "waste management facilities or works";

(c) as a consequence, the development was "designated development"; and

(d) that therefore the development application had to be accompanied by an environmental impact statement, which was absent.

1. Further particulars of the council's rejection of the development application were contained in a letter dated 1 March 2011 from the council's lawyers. The letter stated that:

Broadly speaking, the proposed development has two components. Firstly it involves the retention on site and use or re-use of the waste material which has already been deposited on the land. Secondly it involves the proposed importation of a large amount of additional processed waste material from the Banksmeadow Waste Facility onto the Land and the disposal or use or re-use of that material.

Having regard to the two components of the proposed development, it would constitute a waste management facility or works within the meaning of clause 32 of Schedule 3 by reason of it falling within the ambit of both the chapeau to that clause and also subparagraphs (a) and (d) of that clause.

1. Under Pt 1.1 of the 2010 SEE the proposed development is described as follows:

This development application seeks consent for the use of those works which have been carried out on the site, rectification works to restore watercourses and bushland areas, rectification and remediation works to improve the performance of works carried out to date, and works to complete the fire access trails including compaction, cut and fill, battering, vegetation and landscaping, bush regeneration and weed eradication. The application includes the erection of a dwelling and its attendant infrastructure and the carrying out of bushfire management works. The application includes the importation of further fill to complete the fire access trails in a manner which would comply with the 4.3.2 Property Access Roads under "Planning for Bushfire Protection" 2001.

1. Including "the erection of a dwelling and its attendant infrastructure" the works contemplated in 2010 SEE may be summarised as:

(a) the rectification and rehabilitation of WC1 and WC2 in accordance with the Fluvial Geomorphology and Impact Assessment;

(b) the regeneration of bushland areas by a vegetation management plan, including an effective weed eradication program. The weed eradication would "unavoidably" cause some clearing of native vegetation;

(c) the completion, including rectification works, of fire trails and tracks in accordance with the Jeffery and Katauskas Report and the Fluvial Geomorphology and Impact Assessment annexed to the 2010 SEE;

(d) re-vegetation using dense hardy vegetation;

(e) the clearing of some native vegetation;

(f) the addition of 17,870m³ or 33,900 tonnes of fill material to be imported to the site comprising 50mm recycled aggregate for bulk filling and sub-grade improvement and 20mm recycled aggregate material for the sub-base layer in accordance with the VDM Consulting report dated 12 October 2010;

(g) remediation works, including the removal of asbestos and other likely contaminants from the fill by a licensed asbestos removalist and suitably qualified environmental consultants;

(h) the construction of the dwelling and attendant infrastructure; and

(i) bushfire management works to create an asset protection zone.

The Statutory Framework

1. Section 77A(1) of the EPAA states:

77A Designated development

(1) Designated development is development that is declared to be designated development by an environmental planning instrument or the regulations.

1. Clause 4(1) of the EPA Regulations states:

4 What is designated development?

(1) Development described in Part 1 of Schedule 3 is declared to be designated development for the purposes of the Act unless it is declared not to be designated development by a provision of Part 2 or 3 of that Schedule.

1. As quoted above, cl 32 of Sch 3 of the EPA Regulations provides a definition of "waste management facilities or works".

1. Also as quoted above, the term "waste" is defined under Pt 4 of Sch 3 at cl 38 and applies that definition throughout Sch 3 (see cl 4(2) of the EPA Regulations).

1. Finally, cl 37A of Sch 3 of the EPA Regulations provides that development of a kind specified in Pt 1 (which includes cl 32) is "not designated development" if it is "ancillary" to "other development" and "is not proposed to be carried out independently of that other development".

The Proposed Development is "Designated Development"

1. Foxman submitted that the development was not "designated development" because, first, the proposed development as described in the 2010 development application was not a "waste management facility or work". The works proposed involved the use of existing fill and the importation of further fill, for the purpose of constructing fire access roads in preparation for the erection of a dwelling on the land, and not for a waste management facility or works to be carried out on the land. Further, it submitted, that there was no evidence that any "waste", as defined, would be involved in the proposed development. Second, Foxman submitted any use of the waste would be "ancillary" to the dominant purpose of using the land for residential purposes.

1. The submissions must be rejected. First, applying my reasoning and findings made with respect to the 2010 proceedings, to the extent that the works in the proposed development involve the use of the existing "waste" fill, the land is to be used as a "waste management facility or works", as that term is defined under the EPA Regulations (see above at paragraphs [267] - [271]).

1. Second, to the extent that the 2010 development application relied on the geotechnical opinion of Mr Walker (the Jeffery and Katauskas Report), as the geotechnical evidence in the 2010 proceedings demonstrated, Mr Walker resiled from the opinions he expressed in that Report and the geotechnical solutions presently proposed by him to remediate the land are inconsistent with the proposal described in the 2010 development application and contained in the 2010 SEE.

1. Third, having regard to the nature (containing asbestos, lead and other foreign material "waste" under the EPA Regulations) and volume of the fill (approximately 25,000 tonnes) already deposited on the land; the manner and circumstances of its placement; the fact that a further 33,900 tonnes of fill material is required to be imported to the site in accordance with the VDM Consulting report dated 12 October 2010 (which was in relevantly identical terms to the 11 October 2010 letter sent to and rejected by the EPA as the basis for any exemption for "select fill" applied for by BBR); and the extensive remediation and rehabilitation works proposed, it cannot seriously be said that proposed development is ancillary to the use of the land for residential purposes (see Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 160; Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 at 409 and Penrith City Council v Waste Management Authority (1990) 71 LGRA 376 at 387. Cf Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294; Silverwater Estate Pty Ltd v Auburn Council [2001] NSWLEC 60 and Moore v Yarrowlumla Shire Council [2002] NSWLEC 62; (2002) 120 LGERA 109, the latter two decisions having been relied upon by the Foxman entities, and which are, in my opinion, distinguishable on their facts). That what is proposed in the development application and 2010 SEE is not described as a waste management facility or works is not, of itself, sufficient. The dominant use of the land is, and will be, that of a waste management facility or works and not the use of the land for residential purposes.

1. Because I have determined that the proposal is designated development, it is not necessary to decide the question of relief, and the summons in the 2011 proceedings must be dismissed.

Costs

1. The parties submitted that in each matter costs ought to be reserved. Given the complexity of the proceedings, it is appropriate that this course be followed.

Orders

1. In conformity with the reasons given above in the 2010 proceedings (40578 of 2010), the Court grants the following relief:

Relief Under s 124 of the EPAA

(1) a declaration that the 2009 consent, dated 16 March 2009 and issued by the applicant to the second respondent, does not permit the carrying out on the property being Lot 733 in DP 811421 known as 35 Evelyns Range Road, The Oaks ("the land") of any of the forms of development identified in order 2 below which are in contravention of s 76A(1)(a) of the Environmental Planning and Assessment Act 1979 ("the EPAA");

(2) an order that the first and second respondents be restrained from carrying out, or causing or permitting to be carried out, any of the following forms of development on the land unless and until development consent under the EPAA is granted permitting such development to be carried out on the land:

(a) the use of the land for the purpose of a "land filling operation" as that term is defined in the Wollondilly Local Environmental Plan 1991;

(b) the carrying out of works constituting "filling", as that term is defined in the Sydney Regional Environmental Plan No 20, without development consent; and

(c) the use of the land for the purpose of a "waste management facility or works" as that term is defined in cl 32 of Sch 3 of the Environmental Planning and Assessment Regulation 2000;

(3) an order that, within 90 days of the date of these orders, the first and second respondents remove, or procure the removal of, the fill material from the land as identified in the Lean & Hayward survey dated 26 May 2010 annexed hereto and marked 'A' and dispose of the waste at a waste facility or facilities licensed under the Protection of the Environment Operations Act 1997 ("the POEOA") to accept such waste;

(4) an order that, within 90 days of the removal of the fill material referred to in order 3 above, the first and second respondents remediate, or procure the remediation of, the land in accordance with a Remediation Management Plan approved by the applicant;

(5) an order setting aside construction certificate number 3002786 dated 7 October 2009 and issued by the fourth respondent;

Relief Under s 252 of the POEOA

(6) a declaration that the land is a place that cannot lawfully be used as a "waste facility" as that term is defined in the POEOA;

(7) an order restraining the first, second and third respondents from transporting "waste", as that term is defined in the POEOA (the "waste"), to the land or causing or permitting waste to be transported to the land, including any waste from the waste facility operated by the third respondent at 38 McPherson St, Banksmeadow, unless and until all requisite lawful authorities have first been granted to use the land as a waste facility for such waste;

(8) an order restraining the first and second respondents from using the land, or causing or permitting the land to be used, as a waste facility for the waste, or any other waste, unless and until all requisite lawful authorities have first been granted to use the land as a waste facility for such waste;

(8A) an order that, within 90 days from 18 September 2013, the third respondent removes, or procures the removal of, the waste fill material from the land as identified in the Lean & Hayward survey dated 26 May 2010 annexed hereto and marked 'A', and disposes of the waste fill material at a facility or facilities licensed under the POEOA to accept such waste.

Relief Under s 336 of the WMA

(9) an order restraining the first and second respondents from carrying out any "controlled activity" within 40m of any "waterfront land", as those terms are defined in the Water Management Act 2000 ("the WMA"), on the land unless and until a controlled activity approval is granted under the WMA;

(10) an order that, within 90 days of the date of these orders, the first and second respondents carry out the following works to reinstate the beds and banks of waterfront land and to rehabilitate and revegetate waterfront land, where controlled activities have been carried out on waterfront land on the land in contravention of s 91E of the WMA:

(a) to the extent not covered by any order above, remove the earthworks/dam adjacent to the northern boundary of the land generally in the location marked '5' on the plan annexed hereto and marked Annexure 'B' and rehabilitate the creek known as WC1 in the vicinity of the dam in accordance with the schedule of works in Schedule 1;

(b) rehabilitate the creek known as WC2 in the north-eastern section of the land in accordance with the schedule of works in Schedule 2;

(c) carry out stabilisation, drainage and erosion control works on the tracks generally on the land in the locations marked '2' on the plan at Annexure 'B' in accordance with the schedule of works in Schedule 3; and

(d) revegetation and/or rehabilitation of the land in accordance with Schedule 4;

(11) that the costs be reserved;

(12) that the exhibits be returned;

(13) liberty to the parties to apply on five days' notice for any further or other orders (including orders revoking, varying, supplementing or replacing these orders, in whole or in part, upon sufficient cause, such as, but not limited to, unforeseen or changed circumstances being shown); and

(14) liberty to restore generally on five days' notice.

1. In the 2011 proceedings (40062 of 2011), the Court orders that:

(1) the summons be dismissed;

(2) the costs be reserved; and

(3) the exhibits be returned.

**********

Schedule 1

WC1

1. For the purposes of this Schedule, the "remedial works area" is defined as extending from the upstream extent of stored water behind the dam wall and downstream to the edge of the dam wall.

Works

2. The works comprise:

(1) remove earthworks that have been placed in the remedial works area in an appropriate manner which may include re-use on other parts of the property, such as areas that have been cut, if part of a management plan approved under the orders of the Court;

(2) reinstate the former channel to match upstream and downstream channel profiles;

(3) place appropriate topsoil over exposed banks and immediately stabilise using a biodegradable erosion control blanket;

(4) revegetate all disturbed areas within the channel and banks using local provenance material appropriate to Western Sydney Dry Rainforest endangered ecological community ("EEC"). From the top of the bank to a distance of 10m from the top of each bank, all disturbed areas shall be revegetated with local provenance material appropriate to Cumberland Plain Woodland EEC; and

(5) maintain the vegetation in accordance with an approved rehabilitation and revegetation management plan, that explicitly includes weed control.

Consent

3. A suitably qualified expert is to prepare a creek rehabilitation and revegetation management plan incorporating the works and, prior to commencement of the works, consent shall be obtained from NOW pursuant to the WMA.

Schedule 2

WC2

Works

1. The works comprise:

(1) re-establish a defined channel bed and banks that includes features such as steps, pools, rock bars and riffles. The channel can be discontinuous from the point at which the dam tributary enters WC2;

(2) there should be no additional fill imported to WC2 as part of the rehabilitation process;

(3) there should be no vehicular or stock access to WC2 once rehabilitation works have been completed;

(4) the management objective for the rehabilitated vegetation in WC2 is for it to ultimately represent the natural form and function of Western Sydney Dry Rainforest. Some active revegetation may be required in parts but it is believed that the natural resilience of the Western Sydney Dry Rainforest may be sufficient to return the vegetation to its pre-works condition along much of the disturbed reach of WC2. However, these areas and strategies are to be delineated in a site plan and closely monitored as part of a Vegetation Management and Rehabilitation Plan ("VMRP") and adaptive management strategies applied according to the outcomes observed. On-going weed control works will be required using low impact bush regeneration techniques as specified in the VMRP; and

(5) all disturbed areas shall be stabilised using biodegradable erosion control blankets (for example, jute matting).

Consent

2. A suitably qualified expert is to prepare a creek rehabilitation and revegetation management plan incorporating the works and, prior to commencement of the works, consent shall be obtained from NOW pursuant to the WMA.

Schedule 3

Western Contour Fire Trail Location '2'

Work

1. The works comprise:

(1) design drawings for the stabilisation of pavement and batters to minimise erosion and to provide granular all weather surface to widths required under PFBP 2006, including passing bays, that are to be approved in writing by the council; and

(2) works are to be carried out in accordance with the approved design, including implementation of:

(a) effect road drainage at the WC1 crossing (for example, by culverts and/or causeway);

(b) effective drainage control to assist in minimising ongoing erosion for the balance of the trail;

(c) weed control in accordance with the approved VMRP contained in Schedule 2; and

(d) revegetation in accordance with the VMRP contained in Schedule 2.

Plan

2. A suitably qualified expert shall prepare a detailed sediment and erosion control plan that incorporates the works.

Schedule 4

Rehabilitation

1. The principal components of the VMRP are:

(1) definition of the management issues that are applicable or likely to be applicable;

(2) identification of management zones across the site that have common features, outcomes or actions;

(3) recognition of the natural resilience of the vegetation in the management zones; and

(4) description of appropriate management responses in clear and easy to follow plans, using best practice, low impact techniques.

2. The management issues will include:

(1) weed control;

(2) riparian habitat protection, revegetation and rehabilitation;

(3) threatened species and endangered ecological community habitat protection, revegetation and rehabilitation;

(4) feral animal control;

(5) fire - both control and establishment of an appropriate fire regime as a management tool;

(6) grazing;

(7) edge effects;

(8) monitoring; and

(9) adaptive management.

3. Fundamental to the plan is the identification of suitable offset areas to compensate for the loss of three hectares of Cumberland Plain Woodland EEC. This analysis will be guided by the methodology embodied in the Biobanking Assessment Methodology to achieve an "improve or maintain" outcome. Suitable vegetation types occur in large patches in the eastern part of the property to offset the permanent losses of Cumberland Plain Woodland, particularly in polygons classified as 7 (Native Woodland) and 4 (Exotic Forest) shown in "Attachment B" of the Joint Report on Ecology and River Systems Evelyns Range Road, The Oaks (the joint report of Mr Macleod, Ms Ashby, Dr Martens and Ms Stengl: Exhibit H).

4. These offset areas will be explicitly delineated on a site plan arising from the analysis and shall be managed in perpetuity as conservation and compensation areas.

5. Importantly, the VMRP must be guided by the Recovering Bushland on the Cumberland Plain: Best practice guidelines for the management and restoration of bushland (DECC, 2005) and the Approved Cumberland Plain Recovery Plan (DECCW, 2011) and comply with the checklist for Bush Regeneration Activities in the Habitat of Threatened Species, Endangered Populations and Endangered Ecological Communities (NSW National Parks and Wildlife Service, undated).

6. Appropriate actions must include:

(1) regular sweeps across each management zone to identify major weed species;

(2) species-appropriate best practice weed control responses formulated and implemented, with particular emphasis on noxious weeds;

(3) collection of local seed or cuttings for propagation or fruiting bodies for self-seeding brush matting;

(4) stabilisation of open soil on batters and in riparian zones using mulch, matting, dense plantings and spreading of seed for local provenance;

(5) planting out of batters and nominated riparian zones - choice of species, structural diversity and densities appropriate to the habitat;

(6) exclusion of stock from riparian zones and rehabilitation areas;

(7) use of fauna-friendly fencing;

(8) use of small scale ecological burns, as appropriate; and

(9) monitoring of new weed incursions into bushland.

Annexure 'A'

Annexure 'B'

Amendments

19 September 2013 - Amended pursuant to slip rule

Amended paragraphs: 310

Decision last updated: 19 September 2013