Land and Environment Court New South Wales Medium Neutral Citation: Penrith City Council v Dincel Construction System Pty Limited (No 4) [2021] NSWLEC 1 Hearing dates: 4-5 and 9-11 December 2019, 17-19 February, 24 April, 17 July, 14 August 2020 and 14 January 2021 Date of orders: 15 January 2021 Decision date: 15 January 2021 Jurisdiction: Class 4 Before: Robson J Decision: See orders at [239] Catchwords: ENVIRONMENT AND PLANNING — Orders — Where respondent imported fill, engaged in earthworks, constructed hardstand areas and used land for storage or as a warehouse or distribution facility without development consent — Breaches admitted — Whether order for cessation of use, removal of fill and restoration of premises to prior ground level is appropriate — Whether suspension of injunctive relief ought to be granted ENVIRONMENT AND PLANNING — Environmental planning instruments — Prohibited uses — Whether the zoning provisions for unzoned land under a state environmental planning policy are inconsistent with the zoning provisions of a local environmental plan Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) Div 9.3, ss 4.2, 4.3, 9.45, 9.46 Interpretation Act 1987 (NSW) s 33 Penrith Local Environmental Plan 2010 Protection of the Environment Operations Act 1997 (NSW) s 144 Roads Act 1993 (NSW) s 138 State Environmental Planning Policy (Western Sydney Employment Area) 2009 cll 8, 12 Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997) Cases Cited: ACR Trading Pty Ltd v Fat-Sel Pty Ltd; sub nom Fatsel Pty Ltd v ACR Trading Pty Ltd (LGRA) (1987) 11 NSWLR 67 Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 2 NSWLR 681 Batson v de Carvalho (1948) 48 SR (NSW) 417 Blacktown City Council v Sakar (No 2) [2018] NSWLEC 71 Canterbury City Council v Mihalopoulos [2010] NSWLEC 248 Community Association DP270447 v ATB Morton Pty Ltd [2019] NSWCA 83 Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306 Fairfield City Council v Ly [2008] NSWLEC 322 Glaser v Poole [2010] NSWLEC 143 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 Inner West Council v Balmain Rentals Pty Ltd [2019] NSWLEC 24 Nader v Sutherland Shire Council [2008] NSWCA 265 Penrith City Council v Dincel Construction System Pty Limited (No 2) [2020] NSWLEC 58 Penrith City Council v Dincel Construction System Pty Limited (No 3) [2020] NSWLEC 117 Prasad v Penrith City Council [2017] NSWLEC 1669 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 Sutherland Shire Council v Nader [2007] NSWLEC 363 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240; (2000) 111 LGERA 299 Woollahra Municipal Council v Sahade [2012] NSWLEC 76 Category: Principal judgment Parties: Penrith City Council (Applicant) Dincel Construction System Pty Limited (First Respondent) Gaonor Pty Limited (Second Respondent) Representation: Counsel: R White (Applicant) J Lazarus SC with H Grace (First and Second Respondents) Solicitors: Dentons Australia Pty Ltd (Applicant) Addisons (First and Second Respondents) File Number(s): 2019/00157051 Publication restriction: Nil Judgment 1. Penrith City Council ('Council') seeks declaratory and injunctive relief against Dincel Construction Systems Pty Limited ('Dincel') and Gaonor Pty Limited ('Gaonor') in relation to unauthorised development carried out on land at 919-929 Mamre Road, Kemps Creek ('Premises'); on adjacent land being 901-915 Mamre Road, Kemps Creek, owned by Olathree Pty Ltd ('Olathree Land'); and on land at 931 Mamre Road, Kemps Creek ('931 Mamre Road'). 2. Dincel is a manufacturing company that produces polymer building formwork for use in the construction industry. Dincel and Gaonor are related companies. The Premises are owned by Gaonor but occupied by Dincel. Although it became apparent at the hearing that these proceedings primarily concern the conduct of Dincel, unless it is necessary to distinguish between the parties I will refer to them collectively as the 'respondents'. 3. By amended summons filed 27 June 2019, Council seeks declarations that Dincel is in breach of s 4.2 and/or s 4.3 of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act') by carrying out extensive earthworks, including the deposition of fill and the construction of a hardstand, and by using the Premises and the Olathree Land for the purposes of storage or as a "warehouse or distribution centre". Although declaratory and injunctive relief was also sought against Gaonor in respect of the above conduct as well as a purported failure to comply with an order issued under of Div 9.3 of the EPA Act, this relief was no longer pursued at the hearing. 4. In addition to declaratory relief, Council seeks orders that Dincel cease the use of the Premises and the Olathree Land for the purposes of storage and distribution; the removal of all items associated with the storage use; the restoration of the pre-existing ground level of the Premises; and the removal of earthworks and imported fill from the Premises. 5. While Dincel accepts that there was a breach of planning law in the failure to obtain development consent for both the physical works undertaken at the Premises and for the continuing storage use of the Premises, and does not oppose the grant of limited declaratory and injunctive relief, Dincel opposes any order for restoration of both the Premises and 931 Mamre Road which Dincel contends is a disproportionate remedy in the circumstances. 6. Subsequent to the hearing initially proceeding over eight days in December 2019 and February 2020, the respondents were granted leave on four separate occasions to reopen their case and update the Court as to changes in the regulatory framework and steps taken by the respondents seeking to "regularise" their use of the Premises. On the first occasion, by a notice of motion filed 6 April 2020, the respondents were granted leave on 24 April 2020 to rely upon the affidavits of Penelope Louise Murray and Andrew Colin Cowan affirmed 6 April 2020: Penrith City Council v Dincel Construction System Pty Limited (No 2) [2020] NSWLEC 58. Further written submissions were thereafter received on 1 May, 8 May, 15 May and 1 June 2020. On the second occasion, by a notice of motion filed 7 July 2020, the respondents were granted leave on 20 July 2020 to rely upon the affidavits of Mr Cowan affirmed 17 July 2020 and Ms Murray affirmed 20 July 2020. Written submissions were thereafter received on 27 July and 3 August 2020. On the third occasion, by a notice of motion filed 11 August 2020, after a short hearing on 14 August 2020 the respondents were granted leave on 18 August 2020 to rely upon the affidavit of Mr Cowan affirmed 31 July 2020: Penrith City Council v Dincel Construction System Pty Limited (No 3) [2020] NSWLEC 117 ('Penrith v Dincel (No 3)'). Finally, on the fourth occasion, by a notice of motion filed 8 January 2021, after a short further hearing on 14 January 2021, the respondents were granted leave to rely upon the affidavit of Ms Murray affirmed 8 January 2021. 7. For the reasons that follow, I consider that Council is entitled to much of the relief it seeks, including declaratory and injunctive relief, however the operation of the injunctive relief in relation to the use of the Premises should be suspended for four months from the date of this judgment and mandatory injunctive relief in relation to the restoration of the Premises should be suspended for an additional six months (thus being effectively ten months from the date of this judgment). Background 1. An understanding of the background facts, including the historical intercourse between the parties and the changing legislative and regulatory framework, provides context to consider the issues that remain joined between the parties. The factual narrative in this section, but not the legal implications thereof, is mostly undisputed. Further consideration of background facts and the extensive evidence is undertaken later in this judgment. 2. Dincel manufactures polymer building formwork. Its primary product, known as "Dincel Walling", is a well-known structural walling product used in the building and construction industry. Dincel commenced manufacture of this product ('Dincel product') at premises owned by Gaonor at 101 Quarry Road, Erskine Park ('Erskine Park plant') in 2013. According to evidence referred to below, the business "grew exponentially". 3. In February 2017, Gaonor received development consent to expand the Erskine Park plant by the addition of two production lines to the then existing six production lines. Prior to this expansion, the Dincel product was stored where it was manufactured – being at the Erskine Park plant. As a result of this increased manufacturing capacity, there was both a loss of storage area at the Erskine Park plant together with an increased need for storage space for Dincel product. As the business required a storage area away from the Erskine Park plant, Dincel negotiated a short-term lease of a site at Minchinbury, expiring in October 2017. Because the lease at Minchinbury was temporary, Gaonor purchased the Premises in August 2017. 4. The Premises comprise approximately 5.39ha. At the time of purchase, the Premises consisted of "mostly grassland with some trees and vegetation" and included a historic dwelling house in the north-west portion of the Premises ("Bayley Park"), which is listed in the Penrith Local Environmental Plan 2010 ('PLEP') as a local heritage item. The nature and presentation of the Premises and the location of Bayley Park at the time of purchase by Gaonor is shown in an aerial photograph taken on 9 September 2017 being Annexure A to this judgment. 5. The relative locations of the Premises, the Olathree Land and 931 Mamre Road are depicted in the aerial photograph below taken in July 2019 which has certain areas marked. The Premises, outlined in blue, comprises marked areas A, B, C, D, F and H. The area marked "G" is located at the south-western end of the Olathree Land and the area marked "E" is located at the south-western end of 931 Mamre Road. Each of the Premises, the Olathree Land and 931 Mamre Road has frontage to Mamre Road. 1. On 19 December 2017, a development application was lodged with Council on behalf of Gaonor seeking consent for the use of the Premises for "home industry", a use that was permissible in the RU2 Rural Landscape zone under the PLEP. The proposal included earthworks and an external storage area (which was reduced from 11,000m² to 2,500m² at the time of refusal). On 20 March 2018, Council refused the development application on the basis that the proposed development was for an industrial activity that was prohibited in the RU2 Rural Landscape zone. Council's reasons for refusal recorded that the proposal was not "home industry"; that there was no heritage statement or visual assessment; and that the proposal was otherwise unsatisfactory in relation to its heritage, traffic and acoustic impacts. 2. At all relevant times, and at least up to 11 June 2020, the use of the Premises and the Olathree Land for the purposes of storage or as a "warehouse or distribution" centre has been a prohibited innominate use under the PLEP. 3. Around 19 February 2018, Dincel entered into an agreement with a civil works contractor to undertake extensive construction works on the Premises including "site clearing, excavation, importation of fill and construction of a hardstand area" ('works'). The works plan the subject of the agreement was prepared by Burak Dincel, who at all material times was the chairman, chief executive officer and a director of both Dincel and Gaonor. The works subsequently were carried out on behalf of, or at the direction of, Dincel. 4. The works, including the importation of fill onto the Premises, commenced on 23 February 2018 and were initially for the purpose of preparing and creating the hardstand area at the front of the Premises (within Area A shown in the aerial photograph at [12] above). 5. On 27 March 2018, as a result of complaints received from a neighbour, Council officers inspected the Premises and observed that extensive earthworks were being carried out – including that fill material had been imported and deposited on the Premises. Council's development compliance officer, Joseph Vecchio, spoke to Eser Usta, Dincel's national business development manager, and advised him that all works should cease. 6. At a meeting at Council chambers on 11 April 2018, Mr Usta confirmed that Dincel had undertaken the importation of fill and proposed to use the Premises as a storage facility. 7. On 23 April 2018, Council served a Notice of Intention to Serve an Order ('Notice') pursuant to Div 9.3 of the EPA Act on Gaonor, as owner of the Premises, indicating that Council intended to issue an order requiring that the unauthorised importation of fill cease immediately and that steps be taken to remove the fill and reinstate the Premises to its pre-existing ground level within 50 days. 8. On 11 May 2018, Council received detailed written representations on behalf of Gaonor in relation to the Notice and, on 2 July 2018, Council issued an order to Gaonor ('Order') in substantially the same terms as outlined in the Notice, except that it required that the fill be removed and the Premises be reinstated by 1 July 2019. No appeal was commenced by Gaonor in relation to the Order. 9. In November 2018, Dincel engaged a contractor to conduct works at the southern embankment of the Premises near and on the boundary with 931 Mamre Road and around the existing dam. 10. On or about 27 November 2018, Council received a telephone call from a member of the public advising that "hundreds of trucks" were tipping fill material on the Premises. On that day and subsequent days, Council officers including Andrew Reece, team leader of development compliance, attended the Premises and observed that a hardstand area had been constructed on the Premises (within Area "A" shown in the aerial photograph at [12] above), and that trucks were tipping fill material on the Premises. Mr Reece observed, and photographed, works that were being undertaken (including the presence of earthmoving machines) on both the Premises and 931 Mamre Road, and that Dincel product was being stored on the constructed hardstand area. Mr Reece also observed a steep, un-retained earthen batter on the boundary of the Premises with the property to the south (being 931 Mamre Road), which he estimated to be five metres higher than the ground level of 931 Mamre Road. A photograph of this batter taken by Mr Reece on 27 November 2018 being Annexure B to this judgment. 11. On 29 November 2018, Council sent an email to Mr Dincel attaching a copy of the Order sent to Gaonor on 2 July 2018 and reminding him that the terms of the Order required the importation of unauthorised fill material onto the Premises to cease immediately. Mr Dincel replied by email of 29 November 2018 admitting that "additional earth works" had been carried out and that additional fill had been imported onto the Premises in order to raise the existing dam walls to "prevent water overflowing into the neighbour's land". On 30 November 2018, Mr Reece replied, recording that the development was "illegal" and that it was "not acceptable that fill material continues to be imported onto the Premises to extend an unlawful batter that exceeds 5 meters in height and now covers nearly the entire Premises". 12. By email of 3 December 2018 to Mr Reece, Mr Dincel accepted that the work had been performed without "DA approval" but stated "I had to do what I had to do for the survival of our business." Mr Dincel further stated: "We have not hidden this fact from any party, our clear intention to develop the hardstand was discussed with the council and later on with the state government as well. Unfortunately the decision makers of your council was not in a position to assist us on land with a rural zoning. There is no misunderstanding on [sic] what I have done…" 1. Mr Dincel further stated that the growth of the business required the establishment of a storage yard at 919 Mamre Road and that: "… without the storage capability of 919 Mamre Road our business would have permanently damaged the Dincel business, this could have even resulted with closing this business." 1. On 18 December 2018, Mr Reece undertook a further inspection of the Premises and observed that the hardstand area at the front of the Premises was being used to stack product labelled "Dincel" to a height of approximately four metres. He also observed that a demountable toilet block, a site office, a shade structure, and a fuel cell (that appeared to be leaking) had been erected. Further, the southern side of the Premises (close to the boundary with 931 Mamre Road) had been raised with the installation of an additional hardstand and a kerb and gutter had been constructed from the edge of the hardstand. 2. On 20 and 21 December 2018, further emails were sent to Mr Dincel requiring compliance with the Order by removing the material from the Premises. On 22 March 2019, Mr Reece sent a further email to Mr Dincel which stated that Council was aware that earthworks were continuing to take place at the rear of the Premises, that fill continued to be imported and that the filling extends over the boundary of the Premises onto 931 Mamre Road, that Council "will be taking regulatory action to have all the fill material removed", and that "continued non compliance will result in Council seeking an immediate injunction in the Land and Environment Court". 3. On 8 April 2019, Mr Reece again inspected the Premises and observed that further fill material had been imported onto the Premises, that the ground level of the Premises was now approximately six metres higher than the original ground level, and that fill material continued to be deposited over the boundary of the Premises onto 931 Mamre Road. He also observed that a new part of the Premises (shown as Area F in the aerial photograph at [12] above) was now covered with a black hardstand surface, similar to the hardstand that had previously been constructed at the front of the Premises. 4. On 2 May 2019, Mr Reece again attended the Premises and observed trucks carrying Dincel product entering the Premises. On that occasion he recorded 57 trucks either delivering or removing Dincel product. He also observed that the new part of the Premises being used as a storage area (Area F) was approximately 8,000m². 5. On 28 August 2019, following the commencement of these proceedings on 20 May 2019, Willowtree Planning Pty Ltd ('Willowtree') lodged with Council a planning proposal ('planning proposal') prepared on behalf of Gaonor seeking that the PLEP be amended (in a manner described as akin to "spot rezoning") so that "storage" was included as a permissible use at the Premises. This planning proposal was not supported by Council and, as noted below, was later overtaken by the respondents' view that a "planning pathway" was otherwise available under the State Environmental Planning Policy (Western Sydney Employment Area) 2009 ('WSEA SEPP'). 6. On each of 18 December 2018, 26 March 2019, 8 April 2019 and 2 May 2019, Council officers attended the Premises and observed that Dincel continued to use the constructed hardstand areas on the Premises for the storage of Dincel product. Dincel has continued to use the hardstand areas on the Premises for the purpose of storing Dincel product despite these proceedings having been commenced. 7. In total, and as detailed later in this judgment, the works undertaken were significant and involved the importation and deposition of approximately 42,000m³ of fill on the Premises and the construction of a handstand area of approximately 33,000m² (3.3ha). The area on which fill has been deposited on the Premises is larger than the later constructed hardstand areas and includes mounding on the eastern boundary. The status of the Premises as at 27 October 2019 is shown in an aerial photograph being Annexure C to this judgment. 8. The imported fill also created steep, possibly unstable, batters along the southern boundary of the Premises beside 931 Mamre Road. During November 2018, Dincel obtained consent from the owners of 931 Mamre Road to deposit fill and construct an earthen mound on that property for the purpose of stabilising the batter created by the importation of fill at the Premises. These works are in the area marked "E" shown on the aerial photograph at [12] above and are also shown in Annexure B to this judgment. 9. The parties agree that development consent is required for the earthworks described above and that no development consent has been granted for these works. The parties also agree that development consent is required for the use of the Premises for delivery, storage and dispatch of Dincel product and that no development consent has been granted for this use. As considered below, Council maintains that the works and the use for storage was prohibited under the PLEP and the WSEA SEPP at least up until 11 June 2020. It is agreed that, since at least 18 December 2018, Dincel has been using the Premises for the delivery and storage of its product, and for the dispatch of its product to customers. 10. Dincel also stored its product on the neighbouring Olathree Land from April 2018 up until 2 December 2019. Dincel had an arrangement with Olathree Pty Limited to occupy (for a fee) part of the Olathree Land for storage of Dincel product. Similarly to the Premises, the parties agree that the use of the Olathree Land for storage purposes required development consent and that no relevant consent has been obtained. 11. On 18 May 2020, Gaonor lodged a development application relying upon (now repealed) cl 12 of the WSEA SEPP which the respondents maintain, and Council denies, provided a pathway for development consent to be given for use of the Premises for storage. As considered below, later amendments to the WSEA SEPP on 11 June 2020 rendered this development application otiose and, on 3 July 2020, a further development application was lodged for development consent for a proposal described as "… authorisation for the use of the existing hardstand area on [the Premises] for the purpose of storage". This development application is now the subject of a Class 1 appeal in this Court following Council's deemed refusal. Summary of the parties' positions 1. Council seeks declaratory and injunctive relief including the cessation of the use of the Premises and the Olathree Land for the purpose of storage or as a warehouse or distribution centre, the removal of all items from the Premises and the Olathree Land associated with the storage and distribution use, as well as the removal of the earthworks and the imported fill from the Premises (and 931 Mamre Road). It submits that the works undertaken by Dincel on the Premises continue to be used by Dincel without the benefit of a development consent (in breach of s 4.2 of the EPA Act) and that the works undertaken and the use of the Premises and the Olathree Land also constitute prohibited development (in breach of s 4.3 of the EPA Act). Council seeks an order that Dincel's use of the Premises cease within 28 days however accepts that some further limited time would be required to allow the respondents to restore (or "reinstate") the Premises. 2. While the respondents accept that some relief is appropriate, they submit that the critical issue is whether the Court would suspend the operation of any injunctive relief (if it were so ordered) for a period of time to allow the respondents the opportunity to "regularise" their use and development of the Premises or, failing approval, to exit the Premises in a staged manner. The respondents submit that, if any injunctive relief were to be ordered, the harshness of that relief would be substantially (but not wholly) attenuated if the relief became operational at a later point in time – namely, some 18 months after judgment. Further, a delay in the operation of any injunctive relief would provide the respondents with the opportunity to seek development consent for their use and development of the Premises in the changed regulatory landscape. 3. The respondents oppose any relief involving the restoration of the Premises and submit that the severity of the relief that Council seeks is disproportionate to the gravity of the contraventions alleged. Regulatory framework 1. Central to the respondent's position in opposing the breadth of the relief sought by Council is the dynamic nature of the regulatory framework and the changes which have more recently occurred. 2. The relevant controls which apply to both the Premises and the Olathree Land are the PLEP, the WSEA SEPP, and the Sydney Regional Environmental Plan No 20—Hawkesbury-Nepean River (No 2—1997). 3. Under the PLEP, the Premises and the Olathree Land are primarily zoned RU2 Rural Landscape. Pursuant to the land use table for this zone, "storage premises" and "warehouse or distribution centre" are prohibited innominate uses. Despite this, Dincel maintains that the use was permissible (albeit with consent, which it never had) under the WSEA SEPP. 4. The status of the Premises under the WSEA SEPP, and consequently the "planning pathway" otherwise available with respect to the Premises, has changed since the commencement of the proceedings on 20 May 2019. The changes are explained as follows. 5. At the time of the conduct the subject of these proceedings and at the hearing, the Premises and the Olathree Land were identified within the WSEA SEPP as "unzoned land". 6. Clause 12 of the WSEA SEPP, prior to its repeal on 11 June 2020 by the State Environmental Planning Policy (Western Sydney Employment Area) Amendment 2020 which also changed the relevant zoning under the WSEA SEPP from "unzoned land" to "IN1 General Industrial", provided: Part 2 Permitted or prohibited development 12 Unzoned land (1) Development may be carried out on unzoned land only with consent. (2) Before granting consent, the consent authority: (a) must consider whether the development will impact on adjoining zoned land and, if so, consider the objectives for development in the zones of the adjoining land, and (b) must be satisfied that the development is appropriate and is compatible with permissible land uses in any such adjoining land. 1. Further, cl 18(1) of the WSEA SEPP provides: Part 4 Development control plans 18 Requirement for development control plans (1) Except in such cases as the Director-General may determine by notice in writing to the consent authority or as provided by clause 19, the consent authority must not grant consent to development on any land to which this Policy applies unless a development control plan has been prepared for that land. 1. As noted briefly at [6] above, subsequent to the completion of the initial hearing the case was reopened on four occasions to update the Court as to changes to the planning framework and actions taken by the respondents seeking to "regularise" their use of the Premises. 2. Leave was first granted to the respondents to reopen their case on 24 April 2020 to rely upon the affidavits of Ms Murray and Mr Cowan affirmed 6 April 2020, which detail the background to a draft site specific development control plan (prepared for the respondents purportedly pursuant to cl 18 of the WSEA SEPP) which was to be submitted to Council and thereafter to the NSW Department of Planning, Industry and Environment, along with detail regarding a draft "Mamre Road precinct plan DCP" which was "for exhibition by mid-next year". Both Ms Murray and Mr Cowan deposed as to a revised period that may be required for Dincel to seek consent for its use of the Premises, which it maintained was possible under the WSEA SEPP at that time. 3. On 20 July 2020, the respondents were again granted leave to rely upon affidavits of Ms Murray affirmed 20 July 2020 and Mr Cowan affirmed 17 July 2020. Mr Cowan deposes to changes in the regulatory scheme and the respondents' corresponding conduct as follows: 1. First, on 18 May 2020 a development application was lodged for use of the Premises and the existing hardstand for storage or as a "warehouse or distribution centre", and for additional works including construction of noise barriers. This development application sought to rely upon (then in force) cl 12 of the WSEA SEPP as the Premises were identified as "unzoned land" under the WSEA SEPP. 2. Second, and critically, on 11 June 2020, the zoning of the relevant land (including the Premises) under the WSEA SEPP was changed pursuant to the State Environmental Planning Policy (Western Sydney Employment Area) Amendment 2020 from "unzoned land" to being "predominantly zoned IN1 – General Industrial". This amendment also deleted cl 12 of the WSEA SEPP with the consequence that the respondents were no longer able to rely upon their development application lodged on 18 May 2020 (as this relied on cl 12). 3. Third, a fresh development application relying on the amendments to the WSEA SEPP made on 11 June 2020 was lodged on 3 July 2020 which describes the proposal for which consent is now sought as follows: "- Authorisation for the use of the existing hardstand area on [the Premises] for the purpose of storage; and - Authorisation for the use of the existing dwelling on [the Premises] for the purposes of storage (warehouse and distribution); and - Civil works; and - Proposed landscaping and noise barriers." 1. Following criticisms made by Council of Mr Cowan's evidence, which I do not repeat as they are summarised in Penrith v Dincel (No 3), the respondents were again granted leave to reopen their case and read an additional affidavit of Mr Cowan affirmed 31 July 2020. This affidavit details further information regarding the lodgement of the 3 July 2020 development application and the payment of fees. 2. Finally, on 14 January 2021 the respondents were granted leave to rely upon the affidavit of Ms Murray affirmed 8 January 2021, in which she deposes that a Class 1 application has now been filed in the Court consequent upon Council's deemed refusal of the 3 July 2020 development application. Issues in dispute 1. Given Dincel's acceptance that its conduct in relation to the Premises constitutes a breach of s 4.2 of the EPA Act, the primary issues requiring determination are first, whether the actions of Dincel are prohibited pursuant to s 4.3 of the EPA Act and therefore whether declaratory relief should be granted in this respect; second, whether any relief should be suspended, deferred or otherwise stayed for a period of time to allow the respondents time either to attempt to regularise the use of the Premises and/or to cease operations on the Premises; third, whether the respondents should be required to restore the Premises to their prior ground level; and fourth, whether relief can (and should) be ordered with respect to adjacent land being 931 Mamre Rd. Evidence 1. I now turn to the extensive oral and documentary evidence relevant to the issues in the proceedings. 2. Council reads two affidavits of Andrew James Reece, Council's team leader of development compliance, affirmed 25 July 2019 and 9 December 2019; the affidavit of Joseph Vecchio, Council's development compliance officer, sworn 25 July 2019; the affidavit of Wayne Mitchell, Council's director of development and regulatory services, sworn 6 December 2019; the affidavit of Paul Anzellotti, Council's senior development assessment officer, affirmed 26 July 2019; and two affidavits of Kylie Powell, Council's director – city futures, affirmed 6 December 2019 and 14 February 2020. 3. Council also relies upon expert evidence comprising a report of Paul Reynolds, Council's senior environmental health officer, dated 30 September 2019; two reports of Paul Anzellotti dated 2 August 2019 and 2 October 2019 (town planning, heritage, landscaping and traffic impacts); a report of Peter Warwick dated 15 August 2019 (surveying); a report of John Skaf dated 2 October 2019 (stormwater and impact of fill); and a report of Emily McGinty dated 3 November 2019 (contamination). Council also relies on further detailed documentation comprising correspondence, file notes, plans and financial records. 4. The respondents read an affidavit of Mr Dincel, dated 22 November 2019; four affidavits of Raj Prasad, Dincel's chief financial officer, affirmed 29 August 2019, 15 November 2019, 9 December 2019 and 13 February 2020; two affidavits of Eser Usta, Dincel's national business development manager, affirmed 29 August 2019 and 15 November 2019; an affidavit of Mark Edward Esdaile, former state manager of Dincel, affirmed 10 December 2019; four affidavits of Andrew Colin Cowan, Director of Willowtree (a planning consultancy engaged by the respondents), affirmed 13 February 2020, 6 April 2020, 17 July 2020 and 31 July 2020; and three affidavits of Penelope Louise Murray, solicitor, affirmed 6 April 2020, 20 July 2020 and 8 January 2021. The respondents tendered various documents including the planning proposal and appendices thereto; correspondence; an aerial photograph; and a copy of a previous Class 1 decision: Prasad v Penrith City Council [2017] NSWLEC 1669. 5. The respondents also rely upon 12 expert reports. These include three reports of Mark Tooker dated 29 August 2019 and 21 November 2019 (stormwater, flooding and restoration impacts) and 10 December 2019 (runoff control); a report of Matthew Kritzler dated 26 November 2019 (restoration costs); a report of Greg Pearce dated 28 August 2018 (acoustic impacts); a report of Alexander Beben dated 28 August 2019 (heritage impacts); a report of Duncan Lowe dated 28 August 2019 (geotechnical); two reports of Mark Challoner dated 29 August 2019 (environmental assessment) and 31 January 2020 (contamination); a report of Ken Hollyoak dated 29 August 2019 (traffic impacts); a report of Ben Gluszkowski dated 29 August 2019 (visual impacts); and a report of Andrew Cowan dated 6 September 2019 (town planning). 6. In addition to the expert reports noted above, the Court received five joint expert reports, being reports prepared by: Alexander Beben and Paul Anzellotti dated 5 December 2019 (historical and Indigenous heritage impacts); Andrew Cowan and Paul Anzellotti dated 10 December 2019 (town planning matters); Ben Gluszkowski and Paul Anzellotti dated 9 December 2019 (visual impacts); Ken Hollyoak and Paul Anzellotti dated 10 December 2019 (traffic); and Mark Challoner and Emily McGinty dated 7 February 2020 (contamination). 7. Oral evidence was given by Mr Skaf, Mr Anzellotti, Mr Beben, Ms Powell, Mr Mitchell, Mr Usta, Mr Dincel, Mr Prasad, Mr Esdaile, Mr Cowan, Ms McGinty and Mr Challoner. 8. Before considering the evidence relevant to the remaining issues, it is appropriate to note that the Court is presently sitting in its Class 4 jurisdiction and is not engaged in a merits review of whether the development (including the extensive earthworks and construction undertaken and the ongoing storage use) is acceptable in a manner akin to a Class 1 merit review. It is not for the Court to determine whether that which has been constructed or currently being used by the respondents ought to be considered as an appropriate development (on the assumption that the proposed development was itself permissible, being a discrete issue in these proceedings) as this would necessarily involve taking into account all relevant considerations which a consent authority would otherwise be required to consider when assessing a development application. It is likely that the nature and extent of the evidence which would be required (or provided) in a merits review of such a proposal would have been somewhat, if not substantially, different to that received in these proceedings. 9. The task of the Court in considering the evidence marshalled by the parties is to weigh various matters, including but not limited to the impacts (environmental and otherwise) caused by the conduct, any consequential impacts which may result from the relief sought by Council, along with other matters which may influence the exercise of the Court's discretion. It is therefore in the exercise of the Court's discretion to make findings and orders requiring the cessation of the present use and/or the restoration of the Premises to its pre-existing ground level that much of the expert and lay evidence marshalled by the parties requires consideration. Nature and extent of the earthworks and imported fill 1. The extent of excavation and importation of fill undertaken on the Premises is significant. Mr Warwick, the surveyor retained by Council, has calculated that the northern part of the Premises has been cut down by up to one metre from pre-existing ground levels and that fill material of up to five metres in height has been placed over the remainder of the site. He calculated that the volume of material cut from the Premises is 6,316m³, the volume of fill placed on the Premises is 41,494m³, and the area of hardstand constructed on the Premises for the storage and distribution use is 33,000m² (3.3ha). The extent of imported fill is of such volume that Mr Lowe, a geotechnical expert retained by the respondents, estimates that approximately 1,979 truck movements would be required to remove the fill from the Premises. 2. Mr Warwick calculated the area of fill placed on 931 Mamre Road for the construction of the earthen mound to be approximately 7,280m². The area of the earthen mound was estimated by Mr Reece during his inspection on 27 November 2018 to be approximately 50m by 100m. Contamination evidence 1. The contamination experts, Ms McGinty for Council and Mr Challoner for the respondents, disagree in relation to the contamination risk associated with the imported fill beneath the constructed hardstand area and therefore the possible environmental consequences that may result if the fill were to remain on the Premises. They also disagree in relation to the risk of asbestos contamination within the imported fill. 2. Mr Challoner opines that the 30 investigation locations included within the dataset he examined are sufficient to provide a "robust preliminary site investigation" of the Premises and, as these samples did not identify any contamination that may cause a risk to human health, no further investigation is required. Ms McGinty opines that the existing dataset is inadequate to assess the contamination risks associated with the imported fill and that, although the volume of fill that may be impacted with asbestos is likely to be a small portion of that which was imported, as the location of that asbestos is unknown there is nonetheless a risk that it could be present in some locations above guideline values. She also opines that the extent and nature of any contamination below three metres in depth is unknown. 3. Mr Challoner opines that the optimal environmental solution would be for the fill to remain on the Premises. He states that an environmental management plan would be required if the fill were to require disposal. However, if the fill were to remain in situ, all that would be required would be measures to address dermal risks (such as placing a layer of clean topsoil over any areas with recycled glass sand near the surface) as the remaining fill is contained underneath the hardstand area. Ms McGinty disagrees. 4. Ms McGinty opines that more information regarding the extent of contamination is required before conclusively determining whether the fill can be kept in situ and she considers that the fill poses an aesthetic and safety risk to human health that requires management. Although Ms McGinty accepts that it may be possible for the fill to be retained on the Premises even if a contamination or ecological risk were present, she notes that any associated management measures could potentially be "costly and technically complex." Stormwater/drainage/geotechnical evidence 1. The stormwater and drainage experts, Mr Skaf for Council and Mr Tooker for the respondents, disagree as to the stormwater and drainage issues associated with the works undertaken and any potential impacts that may arise from restoring the Premises. 2. Mr Skaf opines that the large hardstand constructed and the extent of earthworks undertaken on the Premises is of such a nature that an onsite stormwater detention system and water sensitive urban design would be required. He opines that the constructed works do not comply with Council's stormwater planning controls and now concentrate the overflow into "one spot" rather than across a wider area such as before the works were undertaken. 3. Mr Tooker estimates (see also [96] below) that the time required to remove the works (being excavation, various earthworks, hardstand areas and the erection of "numerous other structures" on the Premises) would be 9 months and gives evidence of measures that could be adopted (such as those detailed in a concept design Stormwater Management Plan prepared by Tekcivil Pty Ltd) to address the management of stormwater and that the construction and implementation of such a system would take three months. 4. Mr Tooker opines that the removal of the constructed works has potential to cause "significant adverse stormwater related impacts on adjoining properties", noting that dust and uncontrolled surface runoff would be caused by exposing and disturbing the surface during the process of removing and disposing of the imported fill and constructed hardstand areas. He notes that continued inundation of the neighbouring property will occur whilst the constructed works are in the process of removal. Mr Skaf maintains that there is no evidence of significant concentrated overland flows existing prior to the works. He disagrees with Mr Tooker and opines that the works to remove the fill would be required to be undertaken in a controlled manner. 5. Mr Lowe, an engineering geologist, having considered earlier geotechnical reports, concludes that, from a geotechnical perspective, removal of the hardstand and fill "would appear to be unwarranted" for "Storage Area 1" and unwarranted for "Storage Area 2" without further geotechnical investigation. He also opines (as noted below at [160]) in relation to the time it would take to restore the Premises. Town planning 1. While the town planning experts, Mr Anzellotti for Council and Mr Cowan for the respondents, largely agreed in relation to the applicable planning controls and the impacts which any potential rezoning or new planning instruments may have upon the available uses of the Premises and the Olathree Land, they disagreed on a number of matters including: whether the works undertaken by the respondents are obtrusive or excessive; whether the constructed batter and "benching and platform transitions" are of an appropriate form; whether the works would receive support from Council should a development application be made; the design and impact of any acoustic walls that would be required if a development application was (or had been) made; and whether the visual impact of storing Dincel product on the hardstand exacerbates the visual impacts already caused by the extensive works undertaken. 2. Mr Anzellotti, whose evidence was given before the changes to the WSEA SEPP on 11 June 2020, opines that the works undertaken are not consistent with the established character of the rural surrounds. He was not satisfied that the present use of the Premises is consistent with the potential infrastructure and land uses to complement the Western Sydney Airport, given the uncertainty in relation to the timing and content of future planning instruments and noting that the use of the Premises does not appear to relate to the use of the airport in any event. 3. Mr Cowan, whose more recent evidence is noted earlier, originally opined that the intensity and impact of Dincel's use of the Premises for the purposes of storage does not pose a risk to future land uses within the Mamre Road Precinct, nor does that use undermine the Western Sydney Airport or its corresponding Aerotropolis and that Dincel's operations provide employment in proximity to existing and future residential accommodation. He opines that the present use of the Premises is generally consistent with the established character of the surrounding land as the height of the stored product does not "unduly protrude to dominate the setting of the natural environment"; that the visibility of the Premises is limited; that the low impact and low intensity nature of Dincel's operations will not unreasonably increase the demand for public services or facilities; and that the (then) present planning proposal, which includes measures such as noise screening, vegetation buffers, and management plans, is capable of being supported by Council. Heritage impacts 1. The heritage experts, Mr Anzellotti for Council and Mr Beben for the respondents, gave evidence regarding the impacts upon the heritage value of Bayley Park already caused by the works undertaken by Dincel and the impacts which may result if the Premises were restored to their pre-existing ground level. The heritage experts also gave evidence regarding the potential impacts upon Aboriginal heritage values. 2. Mr Anzellotti opines that the failure to prepare a heritage conservation management plan prior to the works being undertaken shows that the heritage impact on both the heritage item and upon Aboriginal heritage value has not been assessed or considered. He notes that there is therefore a possibility that items were removed or destroyed by the works undertaken at the Premises, however he does not consider that the mere fact that any heritage objects or relics may have since been redistributed across the Premises is therefore a reason for the unlawful fill not to be removed. Mr Anzellotti opines that the heritage value also includes its pastoral setting and that the restoration of the Premises would revert the setting to that which was originally considered in the listing of the heritage item. 3. In relation to historical heritage matters, Mr Beben opines that, as there was no heritage archaeological assessment undertaken prior to the works, there is no baseline against which the present historical heritage value may be assessed. He nonetheless notes that the recent construction has encroached onto areas of high heritage potential and that it is possible that deeper deposits may still be present at the Premises. He notes that the homestead (Bayley Park) has been subject to extensive redevelopment and may not represent the original 19th century structure, however its pastoral setting has nonetheless been reduced by the presence of the hardstand. He opines that although there is unlikely to be any increased impact upon historical heritage values if the use of the Premises for the purposes of storage were to continue, the reinstatement of the Premises is likely to result in an increased level of harm to historical relics which may exist at the Premises, possibly including outbuildings, occupational deposits, or wells. 4. In relation to Aboriginal heritage matters, Mr Beben opines that there was high potential for the Premises to have contained Aboriginal cultural material prior to the works being undertaken by Dincel given the proximity of the Premises to Kemps Creek and the fact that the Premises are on an elevated terrace overlooking the surrounding landscape. Mr Beben again notes that there is no baseline to determine the precise impact upon Aboriginal cultural value as there was no Aboriginal Cultural Heritage Assessment undertaken prior to the works, however he states that there have not been any Aboriginal objects (including culturally modified trees or areas of potential archaeological deposits) identified on the Premises to date. He opines that, if there were archaeological deposits on the Premises, they are likely to have been displaced or truncated and still present within the redistributed fill on the Premises. He therefore opines that the possible presence of Aboriginal objects in redeposited or remaining soils is unlikely to be impacted through the continued use of the Premises as a storage facility, however the reinstatement of the Premises is likely to result in an increased level of harm to Aboriginal objects. 5. The experts otherwise agreed that a conservation management plan would be required; that the site ought to be considered as disturbed land; and that an Aboriginal Cultural Heritage Assessment and a full Historical Archaeological Assessment (including a statement of heritage impacts) would be required prior to the reinstatement of the Premises. Traffic impacts 1. Evidence in relation to traffic impacts was given by Mr Anzellotti for Council and Mr Hollyoak for the respondents. 2. Mr Anzellotti opines that the works already undertaken provide for an "over-proliferation" of access driveway; that the current driveway adjoins an existing right-of-way access road in a manner which creates a high risk of conflict with vehicles entering the right-of-way access road; and that any development application would require referral to Roads and Maritime Services ('RMS') for concurrence pursuant to cl 101 of the State Environmental Planning Policy (Infrastructure) 2007 given that Mamre Road is a Classified Road. He also notes that no evidence has been provided by Dincel to demonstrate: the satisfactory manoeuvring of vehicles or the forward entry and exits to and from Mamre Road; the provision of safe pedestrian paths from marking bays to offices and buildings; or that the required sight lines around driveway entrances and exits have not been compromised by landscaping, fencing or signage. Further, no evidence has been provided in the form of a traffic impact assessment to assess traffic generation, car parking and the like. Mr Anzellotti is also not aware of any application under the Roads Act 1993 (NSW) ('Roads Act') having been made. Additional concerns were raised in relation to the encroachment of "swept paths" onto the full width of Mamre Road and appropriate clearances for those paths. 3. Mr Hollyoak opines that a number of the concerns raised by Mr Anzellotti would be deemed acceptable subject to a further works being undertaken, such as the widening of the existing driveway, the inclusion of a turning area within the Premises, and the provision of additional line markings. Some aspects of these suggestions are considered later in this judgment. In relation to concerns regarding the referral to RMS, Mr Hollyoak opines that, as there are no practical alternative access ways to the Premises other than from Mamre Road, the current access to the Premises from Mamre Road would be deemed acceptable. Acoustic impacts 1. Mr Anzellotti for Council and Mr Pearce for the respondents gave evidence regarding acoustic impacts. 2. Mr Pearce notes that there are four nearby residential acoustic receiver locations, with two being classified as residential receptors and the remaining two being rural receptors. Based upon noise measurements taken on 20 May 2019, he opines that only one rural receiver experienced audible noise levels during peak operational periods. Further, he opines that noise impacts at the residential receivers would be compliant if acoustic barriers of two metres in height and a certain composition were constructed along particular sections of the northern and southern boundary of the Premises. He also opines that the Dincel product stored on the Premises will need to remain positioned in its current location (being adjacent to the boundary) to maximise acoustic screening. 3. Mr Anzellotti, who was not put forward by Council as an acoustic expert, does not consider that the proposed acoustic walls would be appropriate on the basis that the walls would be visually intrusive, particularly given that the proposed southern and northern acoustic barrier walls would be 100m and 80m long respectively (and between 2m and 5m above the ground level of adjacent land) and as the southern wall would be in an elevated position relative to the neighbouring property. Visual impacts 1. Evidence concerning visual impacts was given by Mr Anzellotti for Council and Mr Gluszkowski for the respondents. 2. Both experts agreed that standard visual impact assessment practice would involve the use of a baseline taken prior to works being undertaken, which is not possible in this case as the works have already been undertaken. 3. While it was agreed that no visual impact assessment was undertaken from 931 Mamre Road, being the closest visual receiver of the works, Mr Gluszkowski opines that any such assessment would be unnecessary in light of the letter received by Dincel from the owners of that property apparently comfortable with the works undertaken. Mr Anzellotti opines that the relationship between the works undertaken on the Premises and 931 Mamre Road is unacceptable given that the hardstand is significantly higher than, and directly overlooks, the backyard and home located on 931 Mamre Road. While both experts agreed that the current presentation of 931 Mamre Road acts as a landscape detractor, Mr Anzellotti notes that the presentation of adjoining properties is not necessarily reflective of the desired streetscape for Mamre Road and therefore should not be used as a point of comparison. 4. Mr Gluszkowski opines that although the current use of the Premises is visually prominent to neighbouring properties, the number of visual receptors to the storage areas on the Premises is relatively low. Mr Gluszkowski identifies four properties on the eastern side of Mamre Road as potentially having open views toward the Premises and opines that 930-966 Mamre Road is the most affected, thus representing the "worst case scenario" as it is at the highest elevation of the four properties and experiences "moderate/minor visual impacts". Mr Anzellotti opines that the visual impact of the development is not just restricted to immediate neighbours but also affects properties opposite the Premises along Mamre Road, as well as those which are to the north, south and west of the Premises and have "vistas" of the Premises. Mr Gluszkowski accepts that there is some degradation of the scenic character and landscape value, however long-distance views to the Blue Mountains remain unaffected. 5. The experts agree that the incorporation of landscaping and a mound would, in part, screen the Premises in its present state from the view of motorists along Mamre Road. Mr Gluszkowski opines that landscaped mounding adjacent to roads is a common practice to screen and mitigate visual impacts and that mounding along Mamre Road would satisfy the objectives contained within cl 7.5(b) the PLEP. Mr Anzellotti disagrees that mounding is a common practice to mitigate visual impacts within a RU2 Rural Landscape zone and along that section of Mamre Road. 6. In relation to the suggested construction of a two-metre high acoustic wall along the northern boundary as suggested in the acoustic evidence, Mr Anzellotti opines (as noted at [86] above) that this would create a direct visual impact to the adjoining northern neighbour while Mr Gluszkowski opines that an existing avenue of trees along the adjoining northern access road would provide a degree of visual mitigation. With regard to the construction of an acoustic wall along the southern boundary, Mr Anzellotti opines that this would create a visual impact for motorists while Mr Gluszkowski opines that the majority of the acoustic wall (at least from one viewpoint) could be hidden by landscape planting. Costs and works associated with restoration of the Premises 1. The respondents place emphasis on the costs likely to be incurred if the orders for injunctive relief are not suspended and/or if orders for restoration sought by Council are made – particularly if the injunctive relief required compliance within 28 days. 2. In his affidavit dated 15 November 2019, Mr Prasad, Dincel's chief financial officer, deposes that the Premises contain and store over 180,000 m2 of Dincel product, and that this volume equates to an estimated 2,400 tonnes of product which has a value of over $8.6m and would require roughly 1,500 truck movements and 100 days to clear from the Premises. 3. Mr Prasad deposes that an order requiring cessation of use of the Premises within 28 days (being that sought by Council in its amended summons) would provide no practical opportunity for Dincel to find an alternative storage solution and would therefore require a radical reconfiguration of Dincel's operations at the Erskine Park plant to allow for storage of Dincel product. This reconfiguration would require the Erskine Park plant's manufacturing capacity to be reduced by 50%. Mr Prasad details the potential financial consequences to Dincel if an order requiring cessation of use of the Premises within 28 days were to be made as follows: 1. 26 full time production line employees, 29 administration and support staff, 4 dispatch staff, and 2.5 maintenance staff would need to be retrenched as a result of the necessary decommissioning of a number of production lines and reduction in production capacity to provide the necessary storage space. A number of other service providers (such as electricians, truck drivers etc) would also be impacted. As such, the number of staff at the Erskine Park plant would be reduced from 203 to 84 employees. 2. Dincel would be required to "write off" the 180,000m² of product presently stored on the Premises. 3. On the assumption of a 50% reduction in manufacturing capacity of the Erskine Park plant, Dincel would not be able to absorb what may amount to a $25.96 million loss. 4. The abovementioned consequences do not account for the costs of complying with any other order made by the Court including restoration, any market reaction to Dincel's reduced manufacturing capacity, and other consequential impacts such as loss of reputation. 1. Mr Tooker, a civil engineer retained by the respondents, opines that 94 days would be required to remove the volume of Dincel product (estimated by Mr Prasad) from the Premises. Mr Tooker estimates that the removal of the fill itself (based upon the volumes estimated by Mr Lowe) would then take another 23 weeks including final shaping of the Premises. The site would also require maintenance for one year to ensure erosion and sediment controls are properly established and then later removed. 2. Mr Kritzler, a quantity surveyor retained by the respondents, estimates the "fair and reasonable" cost of the "rectification" works identified by Mr Tooker as being approximately $17.7m (excluding GST) which includes costs associated with: salvage and transport costs involved with moving Dincel product to another facility; reuse of the soil impacted by glass fines; remediation and removal of contaminated material, including associated fees; legal costs and consultant fees; "authority fees" including the costs of having the works supervised by Council; cost escalation; finance costs; and interest charges. Evidence regarding conduct of the parties 1. Evidence was given by Mr Dincel and Mr Usta for the respondents and Mr Mitchell, Mr Esdaile, Mr Vecchio, and Ms Powell in relation to various attendances and meetings between representatives of Council and the respondents in 2018 and 2019. To the extent that there was conflict in this evidence, and insofar that this evidence is relevant to the remaining issues between the parties in relation to appropriate relief; it is considered later in this judgment. Breaches of the EPA Act 1. Council contends that Dincel has breached ss 4.2 and 4.3 of the EPA Act because it has used the Premises and the Olathree Land (and continues to use the Premises) as "storage premises" or "warehouse or distribution centre" in circumstances where those uses are either prohibited under the PLEP or require development consent that has not been obtained. Council no longer seeks relief against Gaonor having become aware that Dincel was responsible for the conduct the subject of these proceedings. 2. Although the respondents concede that some form of declaratory relief sought by Council against Dincel is appropriate as it has admitted breaches of s 4.2 of the EPA Act, the respondents deny that Dincel has breached s 4.3 of the EPA Act. The respondents, while accepting that Gaonor is a necessary party to the proceedings as it owns the Premises, also deny that Gaonor has contravened either of the provisions. Breaches of s 4.2 of the EPA Act 1. The respondents admit that the works, including the importation of fill, excavation, and the construction of the hardstand areas, were carried out on the Premises (and, for a limited time, the Olathree Land) for the purposes of the Premises being used by Dincel for storing its product. The respondents admit that no development consent has been granted for these works and the use of the Premises and the Olathree Land. 2. Section 4.2 of the EPA provides: 4.2 Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. Maximum penalty: Tier 1 monetary penalty. … 1. The following facts relating to Dincel's conduct are not in dispute: 1. Dincel by itself and its contractor engaged in works from 23 February 2018, comprising: the clearing of vegetation from the site; excavation, importation and deposition of at least 35,178m³ of fill; the construction of two hardstand areas with a combined size of approximately 33,000m²; the installation of a toilet block, fuel cell and shipping containers; the erection of a shade structure and fence and gates; the construction of drainage works; and the placement of Dincel product on the hardstand areas. 2. Dincel has used the Premises for the purposes of delivery and storage of its product, and for the purpose of dispatch of its product to customers, since at least 18 December 2018. 3. Dincel, pursuant to an arrangement to occupy (for a fee), used part of the Olathree Land for the purposes of delivery and storage of its product from early April 2018 to 2 December 2019 in circumstances where no development consent had been granted to use the Olathree Land for storage purposes. 1. Dincel accepts that no development consent had been obtained in respect of those works or uses and that, accordingly, Dincel has breached s 4.2 of the EPA Act. 2. I find, that the use of the Premises and Olathree Land for "storage use" of the Dincel product constitutes "development" as defined in s 1.5 of the EPA Act as it relates to the "use of land": s 1.5(a). Further, the works comprising the importation and deposition of the fill and the construction of the hardstand areas carried out on the Premises constitute "development" as they relate to the "carrying out of a work": EPA Act, s 1.5(d). As no development consent has been obtained for either of these developments, and as neither is, at least, permissible without consent pursuant to the PLEP or the WSEA SEPP, Dincel is in breach of s 4.2 of the EPA Act. 3. The Court has broad power to make declarations and the principles in relation to the grant of declaratory relief are well-established. Circumstances usually include where there has been an ongoing breach, where conduct has been carried out despite a respondent being on notice of the need to comply with the law, and in order to mark the Court's disapproval of the conduct that has occurred which is proscribed by Parliament: Blacktown City Council v Sakar (No 2) [2018] NSWLEC 71 at [91]; Inner West Council v Balmain Rentals Pty Ltd [2019] NSWLEC 24 at [36]. In Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1, Preston CJ of LEC considered the Court's position in relation to the making of declarations at [19]-[25] and his Honour's remarks have been considered in a number of subsequent cases: see Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 at [13]-[23]. 4. In relation to the breaches of s 4.2 of the EPA Act, I consider declaratory (and as later considered, consequential injunctive relief) is appropriate for the following reasons which, as they are also relevant to other matters that require consideration, will be expanded upon later in the judgment: 1. The breaches of s 4.2 are clearly made out on the evidence and are to a large extent admitted by Dincel; 2. The sheer volume and extent of the importation and deposition of fill and the earthworks undertaken, at the least without any opportunity at all for appropriate consideration, assessment or regulation by a consent authority, is significant; 3. Dincel (and Gaonor, to the extent relevant) have been on notice of the breaches since 27 March 2018; 4. Although there was a concern as to the validity of the Order issued to Gaonor under Div 9.3 of the EPA Act (as noted elsewhere in this judgment), the respondents at least were aware of Council's concerns raised in the Order and also as a result of the extensive intercourse between representatives of the respondents and Council officers; 5. The seriousness of the breaches is augmented because they comprise importation and placement of fill, construction of hardstand areas, use of the created hardstands, and the continued use of the Premises despite being aware of the need for, and absence of, development consent; 6. The breaches and, in particular, the use of the unlawfully constructed hardstand areas at the Premises is ongoing; and 7. The making of a declaration at least marks the disapproval of the Court of conduct that Parliament has proscribed and serves to discourage others from acting in a similar way. In this manner it may also have an educative element. 1. The parties disagreed as to the form and language of any declarations which would be made by the Court in relation to Dincel's breaches of s 4.2 of the EPA Act. While Council relies upon the orders sought in its amended summons, the respondents proffered alternate orders and submit that Council has not proved to the requisite standard that the removal of trees required development consent and that the proposed order, as presently expressed, goes beyond that which was initially sought in the amended summons. While I consider the submissions regarding the form of orders below, nonetheless, I consider it appropriate that declarations in relation to s 4.2 of the EPA Act be made generally in accordance with the wording proffered by Council. Breaches of s 4.3 of the EPA Act 1. Council contends that Dincel has breached s 4.3 of the EPA Act on the basis that the use of the Premises and the Olathree Land, and the works undertaken at the Premises, is (or, more particularly, was at the time) prohibited development. 2. Section 4.3 of the EPA Act provides: 4.3 Development that is prohibited If an environmental planning instrument provides that: (a) specified development is prohibited on land to which the provision applies, or (b) development cannot be carried out on land with or without development consent, a person must not carry out the development on the land. … 1. Despite accepting that the conduct was prohibited under the PLEP, the respondents contend, relying on cll 8 and 12 of the WSEA SEPP (as noted above, under which the Premises were, at the time of the conduct and up until 11 June 2020, in an area designated "unzoned land") that the works and use undertaken by Dincel was permissible with consent and was therefore not 'prohibited'. 2. Given the changes to the planning controls considered above, the question of whether the conduct was prohibited at that time may be of less relevance – however, as the parties made detailed submissions, I provide my reasons for finding that, up until 11 June 2020, being the date upon which the WSEA SEPP was amended, the use of the Premises for the purposes of storage was prohibited. 3. Relevantly, cl 8 of the WSEA SEPP provides: 8 Relationship to other environmental planning instruments … (2) This Policy to prevail over LEPs In the event of an inconsistency between this Policy and a local environmental plan or deemed environmental planning instrument that applies to the land to which this Policy applies, this Policy prevails to the extent of the inconsistency. 1. Council maintains that while cl 12 of the WSEA SEPP (at [45] above) states that "development may be carried out on unzoned land only with consent", this clause cannot override a clear prohibition that arises under the PLEP. Council's position is that cl 12 operates to prevent development from being carried out without consent, rather than making all development permissible with consent. 2. The respondents submit that there was a clear inconsistency between the planning controls contemplated by the PLEP and cl 12 of the WSEA SEPP, which they contend relevantly provided that any development may be undertaken on unzoned land provided that it had development consent. The WSEA SEPP would therefore prevail over the PLEP by operation of cl 8 to the extent of any inconsistency. 3. The principles of statutory construction require the words of a statute to be considered in their context. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [381]-[382], McHugh, Gummow, Kirby and Hayne JJ stated that the "primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute", that a "legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals", and that "a court construing a statutory provision must strive to give meaning to every word of the provision." 4. Section 33 of the Interpretation Act 1987 (NSW) requires a construction which promotes the purpose or object of an Act over one which would not. 5. These principles of statutory construction apply equally to the interpretation of delegated legislation including environmental planning instruments such as the PLEP and WSEA SEPP: Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [36]. 6. For the reasons that follow, I do not accept that there was an inconsistency between the planning controls contemplated by cl 12 of the WSEA SEPP and the land use table for the RU2 Rural Landscape zone under the PLEP. In consequence, I find that there was no earlier "planning pathway" to achieve development consent as suggested by the respondents. 7. The WSEA SEPP, at the time of Dincel's conduct, included an intermediate zoning designation (being "unzoned land") which I consider co-existed with the pre-existing zoning under the PLEP. The fact that the Premises were designated "unzoned land" simply meant that under the WSEA SEPP it was yet to be specifically zoned under that instrument. I consider that this designation is the equivalent to what has traditionally occurred when newer planning instruments (usually local environmental plans) replaced earlier planning instruments and deferred the specific zoning of certain land. In those circumstances, the existing zoning under the former instrument endured at least for some period of time. 8. Seen in this way, the WSEA SEPP simply provided, by way of cl 12, a further level of scrutiny by requiring additional discrete matters in cl 12(2)(a) and (b) to be taken into account. In this way, any proposal for development on unzoned land under the WSEA SEPP that was permissible under the PLEP would require the consent authority to also consider the impact on "adjoining zoned land" (under the WSEA SEPP), consider the objectives for development in those zones, and consider whether the proposed development was compatible with permissible land uses on any such adjoining land. 9. Further, the mandatory considerations contained in cl 12(2) cannot be read as providing an exhaustive list of all matters requiring consideration by a consent authority when determining an application for development on unzoned land under the WSEA SEPP. To read cl 12(2) in this manner would be to ignore the entirety of the matters which would otherwise require consideration by a consent authority under the PLEP. 10. When read in the manner noted above, cl 12 operated harmoniously with the PLEP and is not inconsistent with the PLEP. Therefore, the prohibitions on development contained within the PLEP continued to apply to development on unzoned land under the WSEA SEPP. 11. Accepting the submissions of Council that works carried out on the Premises and that the use of the Premises and the Olathree Land for the purpose of storage is prohibited, I find that Dincel was in breach of s 4.3 of the EPA Act. 12. I note that Council in its amended summons sought declarations from the Court to this effect. However, in light of my findings above and despite my reasons for making declarations with respect to Dincel's breaches of s 4.2 of the EPA Act, I do not consider it appropriate to make the declarations sought by Council in its amended summons in relation to breaches of s 4.3 of the EPA Act. This judgment is a public pronouncement of the unlawful behaviour of Dincel and I consider that the declaration in relation to the breaches of s 4.2 of the EPA Act and the consequential relief the Court will otherwise order is sufficient to publicly expose the unlawful behaviour. I also take into account that, following amendments to the WSEA SEPP on 11 June 2020 which included a rezoning of the Premises, use for storage no longer constitutes prohibited development. Injunctive relief 1. In light of my findings above in relation to the respondents' breaches of the EPA Act, I now turn to the issue of injunctive relief and whether the Court should suspend the operation of any consequential relief to allow the respondents an opportunity to seek to regularise their use of the Premises or otherwise cease the unlawful use of the Premises in a staged manner. I will then turn to the question of whether, in the exercise of the Court's discretion, the respondents should be required to restore the Premises to its ground level prior to the unlawful works being undertaken as sought in the amended summons. Without disrespect to the extensive written and oral submissions provided by the parties, I summarise the respective positions as follows. Council's position 1. Council seeks injunctive relief preventing the continuation of the unlawful use and mandatory injunctive relief requiring Dincel to restore the Premises and 931 Mamre Road to their pre-existing ground level prior to the works being undertaken. Council submits that these orders will appropriately remedy the breaches of the EPA Act by placing Dincel in the position it would have been in had it complied with the law. Council also submits that making any order that leaves the Premises as it is now, with the unlawful works in situ, is not an order that the Court is empowered to make pursuant to s 9.46(1) of the EPA Act as this would not "remedy or restrain" the breaches of the EPA Act. 2. Council submits that the Court would grant the injunctive relief it seeks for reasons similar to those Council proffered in support of declaratory relief, including: first, the importation and deposition of fill and earthworks undertaken was significant; second, the respondents have been on notice of the breaches since 27 March 2018 and have ignored the Order issued to Gaonor pursuant to Div 9.3 of the EPA Act; third, the breaches are numerous and ongoing; fourth, the breaches ought to be enforced as a matter of public interest to indicate the Court's disapproval of conduct which has been specifically proscribed by Parliament, and for reasons of general deterrence; fifth, the breaches of the EPA Act have caused impacts to the environment; and sixth, Dincel has attained a private advantage, including a financial advantage, through its "direct contravention of the planning laws". 3. Council specifically points to the largely uncontested factual history of the unlawful conduct at the Premises and on adjoining properties and submits that the respondents' decision to import fill and undertake earthworks was deliberate, made despite having acknowledged that development consent was required for such works, and while being aware of the Council Order which required those works to cease. Council submits that further breaches were committed even after these proceedings were commenced. 4. Council points to the admissions and conduct of Mr Dincel (and therefore Dincel) including that: 1. As at January 2018, he knew that the Premises were within a rural, not an industrial, zone; 2. From February 2018, as a result of Council's refusal of the development application for a "home industry" use, he knew that the Premises were not zoned for the uses Dincel sought to undertake and that Council did not support hardstand areas on the Premises; 3. He engaged a contractor to construct the hardstand areas knowing that Council had not supported the construction of any hardstand on the Premises; 4. As at 19 February 2018, he was well aware that Dincel did not have a development consent or any relevant approval for the construction of a hardstand and that, at all times, he intended to use the hardstand for the storage of Dincel product once it had been constructed; and 5. As at 19 February 2018, he knew that the Premises were not zoned for storage use and that the Premises did not have the benefit of a development consent for the purpose of storage of Dincel product. 1. Council also pointed to Mr Dincel's evidence in cross-examination that he was aware that Dincel would be committing an "offence" by continuing to import fill onto the Premises, as Dincel did not have development consent for the importation of fill onto the Premises as at 2 July 2018. Further, notwithstanding this knowledge and understanding, Mr Dincel was aware that, as at 27 November 2018, trucks were continuing to arrive at the Premises and deposit fill when it was "very clear to him, that this work was being done 'without council's DA approval'". 2. In relation to works on 931 Mamre Road, Council submits that the imported fill created steep, unstable batters along the southern boundary of the Premises for which development consent was not attained. Despite Dincel obtaining consent from the owners of 931 Mamre Road during November 2017 to deposit fill over the boundary and construct an earthen mound on that property adjacent to the batter constructed on the southern boundary of the Premises. Further, the importation of fill and construction of the earthen mound extending onto 931 Mamre Road, which was carried out by a contractor at the request of Mr Dincel and authorised by him in sketched plans prepared by him, was prohibited development and, in any event, was undertaken without development consent. 3. In relation to the storage on the Premises and the Olathree Land, Council accepts that Dincel stopped using the Olathree Land for the purpose of storing Dincel product on 2 December 2019 and that the product stored on the Olathree Land was moved onto the Premises from early 2019. It was then stored in the newer storage area (being Area F shown in the aerial photograph at [12] above), the construction of which had been authorised by Mr Dincel between February 2019 and April 2019. Mr Dincel confirmed in cross-examination that he had authorised that hardstand area (Area F) to be constructed at a time when he knew that there was no development consent in place for the construction of an additional hardstand and that he was aware that Area F was zoned RU2 Rural Landscape. Council further pointed to Mr Dincel's evidence where he admitted authorising Dincel product to be stored on Area F at a time after Council had commenced these proceedings. 4. Council further submits that a private financial advantage has been obtained by Dincel as a result of the contravention of planning laws including, for example, saving $1.25m in rent which would otherwise have been paid for other land to have been used for its storage purpose. 5. Council submits that once the Premises had been purchased, there was little done to seek or secure alternative premises that were appropriately zoned for the activities and uses which Dincel sought to undertake. Council submits that the respondents did not make meaningful attempts to secure alternative premises. 6. Council further submits that the breaches of the EPA Act are not merely technical or without environmental impact. The breaches caused harm to the setting of the heritage item through the construction of the earthworks and the hardstand areas and the removal of the previous pastoral paddock setting of the Premises, and work was undertaken where no heritage or visual impact assessment had been carried out. Further, the visual impacts of the unlawful development would be exacerbated by the two-metre high acoustic walls recommended by Mr Pearce to be constructed to ameliorate acoustic impacts to adjoining residential properties. 7. Further, the works have caused significant harm to the Premises' Aboriginal cultural heritage value. Council points to earlier correspondence dated 9 August 2019 from Dincel's expert, Mr Beben (who was not engaged until after the works had been completed) which stated that "prior to recent development works the study area [incorporating the Premises] would have contained a high level of Aboriginal archaeological potential" and that the recent construction works are "likely to have drastically truncated if not removed all potential for the study area to contain Aboriginal cultural material". 8. In the circumstances, Council submits that the relief it seeks in the amended summons is not "unreasonable, unjust and impractical" as pleaded by Dincel. The financial difficulties Dincel now faces are of the company's own making. Further, the Court would not accept that the financial damage to the company would be as significant as claimed in the event that the Court ordered the use of the Premises for the purposes of storage to cease, as the Court has not been asked to close the company's manufacturing plant at Erskine Park but instead merely one of the storage areas used by it. 9. Council further submits that the Court would not accept the detailed expert evidence suggesting that the environmental impacts of Dincel's developments can be appropriately managed if the use of the Premises continued. In the absence of a development application submitted for the physical works before they were undertaken, Council has not been able to, and has been deprived the opportunity of, undertaking an assessment of the merits of any such development application in accordance with s 4.15 of the EPA Act. In any event, the works undertaken do not comply with Council's stormwater controls and, if a development application was lodged, Roads and Maritime Services ('RMS') would need to consider the design of traffic access points and the like. Further, unless the present use of the Premises is ceased, a concern would endure in relation to the intensified use of the right of way as well as the fact that there is no requisite Roads Act approval and/or concurrence from the RMS pursuant to s 138 of the Roads Act. 10. Finally, Council submits that, to the extent that there is a submission made by the respondents that Council officers induced the respondents to acquire and develop the Premises for storage purposes, the evidence does not warrant such a conclusion and Council points to the oral evidence of Council officers having denied all such allegations put against them. 11. Council submits that irrespective of the amendments to the WSEA SEPP, development consent cannot be given to regularise unlawful physical works that have already occurred. As such, the Court should order that the respondents cease the unlawful use of the Premises and remove all works including the toilet block, fuel cell, and shipping containers within 28 days of the Court's order. In addition, the Court must order the unlawful fill to be removed as to do otherwise would merely preserve the status quo and would not "remedy or rectify" the breaches of the EPA Act. Council accepts that a longer period than 28 days would be appropriate for restoration works and submits that such works should be subject to an environmental management plan prepared in consultation with Council. 12. Council submits that the respondents have not pursued the new development application lodged 3 July 2020 (and subsequent Class 1 appeal to this Court) with due expedition. Dincel's position 1. The respondents submit that the injunctive relief sought by Council (in particular, the 28 days sought for compliance) and an order for restoration of the Premises would be disproportionate to the gravity of the alleged breaches of the EPA Act. 2. The respondents submit that any environmental impacts caused by the works undertaken and the ongoing use of the Premises can be effectively managed if the Court were to permit the use of the Premises for storage to continue. It points to the evidence in relation to stormwater and flooding; traffic; Aboriginal and historical heritage value; visual and acoustic impacts; and contamination in this regard. 3. Dincel submits that the Court, in the exercise of its discretion, would also consider the fact that Council has not demonstrated any urgency in seeking relief against the respondents in circumstances where Council first became aware of the deposition of fill on the Premises in late March 2018. After waiting a month before issuing the Notice, Council did not issue the Order until July 2018 and then only required Gaonor to comply with certain orders by July 2019 – being some 12 months after the Order was issued. 4. The respondents submit that a delay in the operation of any such relief would substantially, but not wholly, mitigate the impact of the relief on the respondents. As such, the respondents ask the Court to stay or suspend any injunctive relief for a period of 18 months. This would provide the respondents with an opportunity to seek development consent for their use and development of the Premises in circumstances where the NSW Government since November 2019 (being after the commencement of these proceedings) has foreshadowed and effected changes in the planning regime including the releasing of a Draft Structure Plan, Draft Land Zoning Map, and the Mamre Road Precinct: Exhibition Discussion Paper relating to the State Environmental Planning Policy (Western Sydney Employment Area) 2009 (Draft Structure), under which it was proposed that the Premises, the Olathree Land and the majority of 931 Mamre Road be rezoned "IN1 – General Industrial". More recently, on 11 June 2020 the zoning of the Premises under the WSEA SEPP changed from "unzoned land" to "IN1 – General Industrial" with the effect that the use of the Premises for the purposes of storage is now permissible with consent. 5. The respondents note that a development application was filed on 3 July 2020 seeking development consent for a proposal described as "… authorisation of the use of the existing hardstand area on [the Premises] for the purposes of storage" and is now the subject of a Class 1 appeal filed in this Court on 7 January 2021 following Council's deemed refusal of that development application. 6. The respondents submit that the Court's discretion is wide and, contrary to the position of Council, is not limited to making orders that will restrain or remedy breaches of the Act. The respondents refer to Batson v de Carvalho (1948) 48 SR (NSW) 417 at 427 where Sugerman J said: "To "remedy" a breach is not to perform the impossible task of wiping it out – of producing the same condition of affairs as if the breach had never occurred. It is to set things right for the future, and that may be done even though they have for some period not been right, and even though they may have caused some damage to the lessor …" 1. In addition, the respondents point to a number of factors which they submit now weigh against the urgency of the injunctive relief sought by Council: 1. The Premises and the Olathree Land are now zoned IN1 – General Industrial. 2. Dincel would suffer considerable financial losses if it were required to cease use of the Premises within 28 days as this would require the decommissioning of 4 of 8 production lines at the Erskine Park plant. In consequence, this 50% reduction in manufacturing capacity would require reconfiguration of the plant at an estimated cost of $1.3m. 3. Dincel would likely need to terminate 118 of its 203 employees if such a large reduction in its manufacturing capacity was so required. 4. In addition to the costs of reconfiguring the Erskine Park plant, the evidence is that Dincel would not be able to absorb a loss of "approximately $25.96 million." 5. Dincel's reputation would also likely suffer and it may not be able to fill existing orders if a reduction in operations was ordered. 6. Dincel currently stores 180,000m² (2,400 tonnes) of stock on the Premises which would not be able to be moved from the Premises within the 28-day timeframe sought by the Council. Instead, 100 working days would be needed to remove the product completely from the Premises. As Dincel has been unable to source an alternative site for relocation, this product may therefore need to be disposed of if the Court required its removal. 1. In relation to restoration, the respondents submit that the Court should not order Dincel to reinstate the Premises because the approximate costs of restoration (being in the order of $19,506,914.90 as estimated by Mr Kritzler) are extreme and disproportionate in circumstances where the Premises are now zoned IN1 – General Industrial, which would permit the use of the Premises for storage with development consent. The respondents note the evidence that the costs involved may lead Dincel to insolvency. 2. The respondents submit that restoration of the Premises would result in greater environmental impacts than if the hardstand areas and imported fill remained in situ. The respondents submit the fill would be destined for landfill in any event given the presence of glass fines, and that the transportation of this material would have associated environmental impacts resulting from noise and other transport impacts. 3. The respondents also note that Mr Tooker and Mr Beben respectively opine that the removal of the hardstand areas is likely to cause further environmental impacts and harm relating to stormwater runoff and Aboriginal and heritage values. 4. The respondents also rely upon the earlier town planning evidence, particularly the evidence of Mr Anzellotti, who stated in cross-examination that if Dincel's use of the Premises became "expressly permissible", given that there was a need for industrial land in the locality, it is likely that there will be significant industrial development along Mamre Road in five or six years' time. 5. The respondents submit that they have been assiduous in their efforts to obtain consent for the use of the Premises and that, as early as May 2017, representatives of the respondents met with Council officers to discuss Dincel's operations. The respondents point to evidence given in relation to meetings with various Council officers (in particular Peter Wood and Gavin Cherry) who were not called to give evidence in these proceedings. The respondents point to the evidence of Mr Dincel that Mr Mitchell (Council's director of development and regulatory services) had recommended that Dincel pursue a development application for home industry and points to the evidence of Mr Dincel and Mr Usta in relation to their recollection of the conversation. 6. The respondents point to the evidence of Mr Dincel that he "made the decision for Gaonor to purchase the Premises thinking that Council would allow some storage use" following comments made to him by Mr Mitchell. The respondents submit that Gaonor purchased the Premises in August 2017 in reliance of, amongst other things, Mr Mitchell's comments. 7. The respondents also point to the evidence of various attendances upon Council officers and members of Government, including representatives of the NSW Department of Industry, regarding whether Dincel's operations at the Premises qualified as a "State Significant Development" in June 2018. Further, in December 2018, Mr Dincel attended various meetings with Council officers and representatives of the Department of Planning and Environment and the Department of Industry to discuss the use of the Premises and possible "planning pathways" for Dincel. Further meetings took place between representatives of the respondents and Council in February and April 2019 and, in August 2019, Willowtree (on behalf of Dincel) commenced the preparation of a planning proposal seeking an amendment to the PLEP to include storage as an additional permitted use of the Premises. 8. The respondents most recently submit that the Court would accept that the Class 1 appeal will likely be heard by this Court within four or five months and they should, at least, have the "opportunity" that may be available in those Class 1 proceedings to regularise the use while acknowledging that a development consent cannot validly be granted for development that has already taken place (Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240; (2000) 111 LGERA 299). However, the respondents submit that is not to say that what has already been constructed might not be regularised otherwise than by obtaining development consent for the construction of the impugned development. 9. In the above circumstances, the respondents submit the Court would find that both respondents have been proactive in their efforts to regularise the use of the Premises and have engaged frequently and constructively with Council and other planning authorities in an effort to obtain permission to use the Premises as either "storage premises" or as a "warehouse or distribution centre". 10. Finally, the respondents submit that the Court would not accept the description of the respondents' conduct as "deliberate, brazen and cynical" and points to the evidence of Mr Dincel that he was "induced to believe" that Dincel could use and develop the Premises and the Olathree Land for the purposes of storage premises or as a warehouse or distribution centre as a result of representations that Council was unlikely to take any enforcement action against the respondents if they were to develop and use the Premises for the purpose of storing its product. To the extent that there was conflict in the evidence given by Messrs Dincel, Usta and Esdaile on behalf of the respondents and that given by Mr Mitchell on behalf of Council, the respondents submit that it was Mr Mitchell who suggested that Dincel lodge a development application for "some sort of storage". The respondents submit that the Court would find that Mr Dincel had a genuinely held belief that Dincel's actions would be acceptable to Council and that he did not act deliberately or brazenly in causing Dincel to undertake breaches of the EPA Act. 11. Given the evidence of Mr Warwick, Mr Lowe and Mr Tooker concerning the time it would take to remove the fill, and considering that the removal of Dincel product from the Premises would need to be completed before bulk excavation works commenced if restoration was ordered, Dincel submits that it would take between 37 and 47 weeks to restore the Premises to the condition it was before it was occupied by Dincel. 12. In these circumstances, the respondents seek the suspension of any injunctive relief for at least 18 months to allow the respondents the opportunity to regularise the use of the land and, if necessary, to exit the Premises in a staged manner. 13. In relation to the injunctive relief concerning the Olathree Land, the respondents submit that Dincel has removed all product that had been previously stored on that land and has not used the Olathree Land for any purpose since 2 December 2019. Consideration 1. Sections 9.45 and 9.46 of the EPA Act empower the Court to remedy or restrain a breach of the EPA Act. These provisions relevantly provide: 9.45 Restraint etc of breaches of this Act (1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. … 9.46 Orders of the Court (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. (2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may: (a) where the breach of this Act comprises a use of any building, work or land—restrain that use, (b) where the breach of this Act comprises the erection of a building or the carrying out of a work—require the demolition or removal of that building or work, or (c) where the breach of this Act has the effect of altering the condition or state of any building, work or land—require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed. … 1. The principles relating to the exercise of the Court's discretion pursuant to ss 9.45 and 9.46 are well-known but worth repeating. 2. In Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 ('Sedevcic') at 339-340, Kirby P identified nine guidelines applicable to the exercise of the Court's discretion pursuant to the then s 124 (now s 9.46) of the EPA Act. As I have taken these guidelines into account, it is convenient for present purposes to restate a number of his Honour's observations which are of particular relevance to the circumstances of this case: "4. In exercising the discretion, it must be kept in mind that the restraint sought is not, in its nature, the enforcement of a private right, whether in equity or otherwise. It is the enforcement of a public duty imposed by or under an Act of Parliament, by which Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment. Attorney-General v BP (Australia) Ltd (1964) 83 WN (Pt 1) (NSW) 80 at 87; 12 LGRA 209 at 218. Because s 123 of the Act permits any person (and not just the Attorney-General or a person with a sufficient interest), to bring proceedings in the Court for an order to remedy or restrain a breach of the Act, there is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid: cf Attorney-General v Harris [1961] 1 QB 74 at 94; Trimboli v Penrith City Council (1981) 48 LGRA 323 and Deane J (dissenting) in Lizzio v Ryde Municipal Council (1983) 155 CLR 211. … 6. Where the application for the enforcement of the Act is made by the Attorney-General, or a council, a court may be less likely to deny equitable relief than it would in litigation between private citizens: Associated Minerals Consolidated Ltd v Wyong Shire Council (at 692). This is because the Attorney-General or the Council are seen as the proper guardians of public rights. Their interest is deemed to be protective and beneficial, not private or pecuniary: cf Rowley v New South Wales Leather Trading Co Pty Ltd v Woollahra Municipal Council (1980) 46 LGRA 250. … 7. Where the relief is sought against a "static" development (ie the erection of a building) which, once having occurred can only be remedied at great cost or inconvenience, the discretion may, in the normal case, be more readily exercised than where what is involved is a continuing breach by conduct which could quite easily be modified to bring it into compliance with the law: see Blacktown Municipal Council v Friend (at 197). But this observation is simply a reflection of the judicial perception in balancing, on the one hand, the public interest in equal compliance with the law and, on the other, the degree of irremediability occasioned by the breach and the expense or inconvenience which would follow the law's enforcement: cf Associated Minerals case (at 692). It does not amount to a hard and fast exception to the discretion. That discretion must be exercised in every case in which it is invoked. Nor is it a reason to refuse relief where no "static" development can be proved." 8. The wide discretion has been described as "an adequate safeguard against abuse of a salutary procedure": see Menzies J in Cooney v Ku-ring-gai Municipal Council (1964) 114 CLR 582 at 605; (1963) 9 LGRA 290 at 306. It permits the court to soften, according to the justice of particular circumstances, the application of rules which, though right in the general, may produce an unjust result in the particular case. Sometimes this "softening" can be achieved by postponing the effect of injunctive relief: see, eg, Woollahra Municipal Council v Carr. Sometimes that evidence will not achieve a just result. The remedy of injunction, with its powerful sanctions, is not, after all, the only remedy available to a local government authority for breaches of the Act. Criminal prosecution, with its heavier onus of proof and rigorous procedures may offer an inadequate means, in the typical case, for the enforcement of environmental law in the public interest. Furthermore the provisions of s 123 of the Act indicate an enlargement of the availability of injunction for breach of that law. However the refusal of a court to grant an injunction, in the exercise of its discretion, does not necessarily conclude the authority's remedies." 1. In F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306 at 311, Street CJ noted that the power given under the then legislation to make "such order as it thinks fit" enabled the Court to "mould the manner of its intervention in such a way that will best meet the practicalities as well as the justice of the situation before it". His Honour continued (at 313): "… It is the duty of that Court, in formulating "such order as it thinks fit", to have regard at all times to the pursuit of the objects of the Environmental Planning and Assessment Act as set out in s5. This involves, in appropriate cases, the evaluation of matters extending beyond the mere determination of the rights and matters in dispute between the immediate parties. It involves due weight being given to the public interest and the interests of other affected persons in the overall context of the pursuit of the objects broadly set out in s5. …" 1. Further, in ACR Trading Pty Ltd v Fat-Sel Pty Ltd; sub nom Fatsel Pty Ltd v ACR Trading Pty Ltd (LGRA) (1987) 11 NSWLR 67 ('Fatsel'), Kirby P further stated (at 82): "… [The] discretion is a mollifying one. It permits, in appropriate cases, the refusal of injunctive relief where to grant such relief would work such an injustice as to be disproportionate to the ends secured by enforcement of the legislation including by injunction. …" 1. There are many instances of the Court ordering demolition or reinstatement as an appropriate remedy for a breach of the EPA Act: Woollahra Municipal Council v Sahade [2012] NSWLEC 76 ('Sahade') at [62]-[87]; Canterbury City Council v Mihalopoulos [2010] NSWLEC 248 at [47]-[51]; Glaser v Poole [2010] NSWLEC 143 at [60]-[77]; Fairfield City Council v Ly [2008] NSWLEC 322 at [22]-[26] and Sutherland Shire Council v Nader [2007] NSWLEC 363 at [17]-[27] (upheld on appeal in Nader v Sutherland Shire Council [2008] NSWCA 265). 2. I am conscious not to give this discretion, being a mollifying one, an unduly restricted operation. As stated by Kirby P in Fatsel at 82, the wide scope and purpose of the discretion conferred by s 9.46 of the EPA Act is not a warrant to: "set at nought the contemplated and sensitively balanced provisions of the legislation, substituting for the operation of the law laid down by Parliament, personal opinions of the judge hearing the case" 1. Adopting the principles summarised above, in particular the guidelines enunciated by Kirby P in Sedevcic, and balancing the discretionary factors relevant to the exercise of the Court's discretion, I consider that relief should be granted to Council in light of Dincel's breaches of ss 4.2 and 4.3 of the EPA Act and that Dincel should be ordered to, first, cease the use of the Premises for the purpose of storage or as a warehouse or distribution centre; and second, remove the works and the fill which has been unlawfully deposited on the Premises and on 931 Mamre Road. However, this relief ought to be suspended for a period of four months in relation to cessation of use and an additional six months to allow for restoration to occur. My reasons follow. 2. I consider the factors to be weighed include the seriousness of the breaches which I have found, the fact that the breaches are not merely technical, the continuing nature of the conduct, the hardship to Dincel, the conduct of Dincel, the environmental harm both caused by the breaches and the harm likely to follow orders being made, and the need for the orderly enforcement of public duties. While the weight to be attributed to the factors to be considered may vary, the weighing exercise that I have undertaken falls heavily in favour of making orders remedying the breaches albeit allowing some time for an orderly cessation of the use and the later removal of the works. 3. I now turn to the factors which have influenced my exercise of the Court's discretion, noting that there is obvious overlap between these factors. The breaches were not technical 1. Dincel's breaches were not mere technical breaches of the law. The evidence in relation to the extent of both the earthworks undertaken as well as the continuing use of the Premises is clear. The nature and extent of the works undertaken is further evident from a comparison of the aerial photographs being Annexures A and C to this judgment. 2. Although not on its own determinative, the size of the earthworks and other construction that was undertaken is a matter of some importance in my consideration of appropriate relief – both in relation to the extent of impacts, as well as considering Dincel's submission that the sheer size of the works militates against any relief involving restoration. Simply stated, the fact that the volume of material cut from the Premises was approximately 6,500m³, that the volume of fill placed on the Premises is approximately 42,000m³, that the area of the constructed hardstand spreads over 33,000m², that the unlawful use is continuing, and that the extensive earthworks and construction were undertaken over many months, is persuasive in my view in favour of a granting both injunctive and mandatory injunctive relief. As such, Dincel's breaches are not merely technical but instead represent significant breaches of the planning law. Hardship to Dincel 1. The evidence before the Court makes clear that Dincel will suffer a significant financial loss if the Court were to make the orders as presently sought by Council. In particular, I have considered the evidence (noted briefly at [93]-[97] above) in relation to potential financial losses, including the prospect that there may be a need to terminate a number of employees (if Dincel was otherwise unable to find alternative premises with the necessary storage capacity) and that there will be significant cost incurred in attending to any restoration ordered. While the respondents submit that this total loss could be in the vicinity of $45m (being approximately $25m associated with the cessation of use within 28 days and $20m owing to restoration of the Premises), I have doubt whether the loss would be of such magnitude and, although I take this evidence into account, I nevertheless do not find this evidence persuasive such that the relief should not to be ordered. My reasons are fourfold. 2. First, the evidence concerning financial loss is predominately based upon the premise that Dincel has no (or has been unable to acquire) alternative locations at which to store its product and would therefore be required to reduce its manufacturing capacity at the Erskine Park plant by 50% in order to create the necessary storage space for the product presently stored on the Premises. I have a concern in relation to the weight to be attributed to this evidence in circumstances where Council is not seeking any cessation (or reduction) of the Erskine Park plant's manufacturing capacity. As deposed by Mr Prasad, it is primarily because of the apparent need to diminish its manufacturing capacity of the Erskine Park plant that will result in the loss of jobs and profit. However, having heard evidence in relation to the availability of alternative storage locations, and noting my intention to allow more than the 28 days sought by Council for compliance with any order, I do not consider that Dincel is likely to incur these significant losses as I consider that it is clear that, if required, Dincel would be able to secure alternative storage premises (albeit likely at a higher cost compared to the current Premises). 3. As considered elsewhere in this judgment, Dincel (and Gaonor) have made deliberate business decisions that have resulted in it being in this position. Despite this, some suspension in the time to comply with the orders may ameliorate the likely loss and may allow some time for Dincel to secure alternative premises, or make other commercial arrangements, without requiring a reduction in its manufacturing capacity (and thus the large financial repercussions discussed above). As such, and taking into account the variety of factors relevant to the Court's discretion, I consider that an appropriate balance is for the injunctive relief in relation to use of the Premises to be suspended for a period of four months. 4. Second, even if Dincel's losses were of such magnitude, such a loss cannot have been an unforeseen risk to Dincel. Dincel elected to store 180,000m² of product on the Premises as at the date of Mr Prasad's affidavit in November 2018 (and has apparently continued to do so) with the full knowledge that this use was unlawful. This continued operation was a matter of choice of Dincel (and Gaonor) and therefore any losses associated with the removal of its product are, to a large extent, of Dincel's own making. I accept the submission of Council that the respondents' decision to significantly increase production at the Erskine Park plant in early 2017, to purchase of the Premises in August 2017, and to incur significant expense and undertake the works over a period of time, were all commercial decisions of Dincel and Gaonor which were pursued knowing full well there was a significant risk involved in that conduct. I note that the factual history in relation to Dincel's conduct on both the Premises and the surrounding land is largely uncontested. The actual knowledge and conduct of Dincel is considered further below. 5. Third, it is clear that by purchasing the Premises which had no operative development consent permitting the use for which it was purchased, and then using it for a purpose which was not permissible, Dincel likely obtained a private financial advantage which, at least, includes a saving of rent. While there was dispute between the parties on this point, I accept that it was likely that there was a saving in the purchase price of the Premises considering the evidence that properties of not dissimilar size, but with favourable planning scenarios, were being marketed for significantly more than Gaonor paid for the Premises in August 2017. 6. Fourth, to the extent that the evidence of Mr Prasad in his affidavit of 15 November 2019 was based upon Council seeking orders requiring cessation of use of the Premises within 28 days, the facts that further time has now elapsed since that evidence and that Dincel has, in any event, been aware of the possible outcome of these proceedings since they were commenced on 20 May 2019, means that Dincel has had significant time to anticipate the likely relief that may be ordered and to conduct its operations accordingly. This is aside from the respondents being aware of Council's concerns regarding their conduct from at least May 2018. Further, Gaonor has been the owner of the Premises since August 2017, the unlawful works commenced at least in February 2018, and the Premises has been used for the unlawful storage purpose from at least November 2018. 7. It follows that while I accept that Dincel would suffer significant financial losses if injunctive relief and orders for restoration were made, the evidence of Mr Prasad (and thus the significant losses estimated) was initially based upon the Court making an order within 28 days of judgment. As this evidence was given some time ago and as Council has accepted that some suspension of any injunctive relief that is ordered to allow orderly cessation of the use of the Premises (and restoration) would be appropriate, I do not consider Mr Prasad's evidence (combined with the other evidence in relation to the losses that may be experienced by Dincel consequent upon orders sought by Council) to be determinative in my consideration of appropriate relief. Again, Dincel has known of Council's concerns now for some years and yet has continued with the expansion and use of the Premises, including after these proceedings were commenced, in the knowledge that it was most likely that some relief would be granted in these proceedings, especially given the concessions made by the respondents in relation to unlawful development. Harm to the environment 1. The respondents marshalled extensive evidence to suggest that any adverse environmental impacts of the development could be managed and that restoration would result in a greater environmental impact. I have approached this evidence generally in accordance with my commentary at [60]-[61] above, noting that the Court is not engaged in an assessment of the merits of a development application. Suffice it to say, I consider that there has been obvious environmental harm caused by the unlawful conduct. 2. Dincel suggested that if further works were to be undertaken, including the implementation of various proposals regarding heritage, acoustic, visual, traffic, stormwater/drainage/geotechnical and contamination, any likely or present environmental impacts caused by the works and ongoing use of the Premises would be able to be managed. As such, the Court would find that the ability to manage any environmental impacts arising from that which has already been undertaken outweighs the costs that Dincel would otherwise incur if orders for restoration were made. I do not find this evidence persuasive. 3. Having considered the evidence in relation to contamination, town planning, heritage, stormwater/drainage/geotechnical, and visual and acoustic impacts both individually and collectively, I find that even if the environmental impacts of the ongoing use of the Premises are not significant (which I do not find) or are able to be managed without further assessment by Council (about which I have some doubt), there is little doubt that any impact would, to a large extent, have been otherwise avoided if there had not been breaches of the EPA Act. In any event, even if the Court were to allow the unlawful works to remain, it is clear that the respondents would be required to expend substantial time and cost in resolving a number of environmental concerns which have been raised in the evidence. I note many of these concerns are agreed. For example, if the Court were not to order restoration of the Premises, the respondents would need to, at the very least, undertake three months of work to resolve stormwater concerns; reconfigure much of the vehicle access into, and within, the Premises; and undertake further works which have not been the subject of detailed assessment by Council. 4. In relation to contamination, the respondents submit that the fill (which contained excavated natural material, virgin excavated natural material and recycled glass sand) imported onto the Premises (and 931 Mamre Road) does not pose a risk to human health or the environment and that the optimal solution is for that fill to remain on the Premises. Further, Dincel submits that Ms McGinty's evidence of her concerns dealt with the "then current" zoning and that (at the time of the hearing), the Premises were likely to be rezoned for industrial use, noting that there are less stringent guidelines in relation to contamination governing industrial uses. 5. While I take into account the evidence that "minor quantities of asbestos containing materials (ACM)" were imported that do not pose a "significant" contamination risk to human health, I accept the opinion of Ms McGinty that the potential for asbestos to be present "cannot be ruled out at this time" and that there is sufficient concern in relation to the contamination risk as to require further investigation. 6. Although the respondents submit that the contamination evidence would "incline the Court not to exercise its discretion against allowing the fill to remain in place" and notes the costs involved in having it removed, having considered the contamination evidence along with the other evidence (and again noting there is overlap between the factors requiring consideration), I do not consider that the fill should remain in its place. While I note that Mr Challoner opines that the "optimal environmental solution" would be for the fill to remain on the Premises, I note that restoration of the Premises (and 931 Mamre Road), including the transport of the deposited fill containing glass fines and possibly asbestos to an appropriate facility or location, provides for greater certainty in relation to environmental impacts and allows for the proper management of that material. I note that Council's separate concern relating to Dincel's allegedly unlawful importation of glass fines is dealt with later in this judgment. 7. In relation to the stormwater/drainage/geotechnical evidence, while I accept the evidence of Mr Tooker that measures are able to be adopted (such as those detailed in the stormwater management plan prepared by Tekcivil Pty Ltd) to address the management of stormwater in relation to the presently constructed works (and the use) and, as noted above, that those works would require three months to construct, I do not consider that this is a persuasive consideration for not ordering restoration of the Premises. 8. The evidence is clear that the extensive works did not comply with Council's requirements in relation to stormwater controls in any event. That is not to say that the further works could be not undertaken to attempt to meet and comply with Council's requirements, and that there may be some adverse stormwater related impacts on adjoining properties if restoration is ordered, however, the very extent of the remedial work required is indicative that what has been constructed is of environmental concern. 9. In relation to heritage impacts, it is clear that there has been damage to the heritage value of Bayley Park and particularly its setting. Further, the excavation and placement of fill on the Premises have all but destroyed (or, at least, displaced) any Aboriginal or historical relics or objects that may have existed on the Premises. Even if objects or relics remain on the Premises in "deep deposits", the evidence is that they would now likely be encapsulated underneath the constructed hardstand areas or under several metres of fill. In addition, and again not determinative on its own, I find that many of the concerns relating to heritage impacts would have been avoided if a heritage conservation plan (or proper consideration given to heritage aspects) had been undertaken prior to works being undertaken. 10. As such, I accept the evidence of Mr Anzellotti that, if there were any potential for relics or objects to have survived the earthworks undertaken on the Premises, their possible presence would not justify not ordering Dincel to restore the Premises to their prior condition. I do not find compelling the argument that restoration is likely to result in an increased level of harm to historical relics as suggested by Mr Beben. I note that concerns regarding the pastoral setting of Bayley Park, which has been reduced by the presence of the hardstand areas and the use thereof, has the potential to be addressed by restoring the Premises to their prior ground level. 11. Finally, in relation to the traffic evidence, although Mr Hollyoak opines that a number of the proper concerns raised by Council would be able to be addressed by way of further works and a number of changes being undertaken (such as widening the existing driveway, the inclusion of turning areas, and additional line markings), again, I do not find this evidence on its own or in combination with the other evidence suggesting a lack of environmental harm to be compelling such that an order for restoration is not justified. It is clear from the joint traffic expert report that there are a number of issues concerning traffic and access to the Premises which would require resolution in any event if the use of the Premises were to continue. For concision, I make the same find findings in relation to the geotechnical evidence, the acoustic evidence and the visual impact evidence summarised above at [84]-[92] that environmental harm has been caused by the unlawful works and use of the Premises. 12. While I accept that restoration is not without some environmental impact or consequence, I consider that, viewed holistically and in their totality, the environmental impacts and concerns noted above arising from the unlawful, unregulated and unsupervised (by a consent authority) construction of a 3.3ha hardstand and the importation and removal of 42,000m3 of (possibly contaminated) fill provide a compelling reason for granting injunctive relief in relation to the unlawful use and ordering the restoration of the Premises. Deliberate flouting of the law 1. As noted above at [129]-[130], Council submits that the respondents have deliberately flouted the law and points to the conduct of Dincel, Gaonor and, specifically, the conduct and the admissions of their controlling mind, Mr Dincel. In particular, from at least January 2018, Mr Dincel knew that the Premises was not zoned industrial but was instead within a rural zone; and, from at least March 2018, as a result of Council's refusal of the development application for home industry use, he knew the Premises were not zoned for what Dincel sought to undertake and that Council clearly did not support a hardstand or the use otherwise contemplated. Further, at all relevant times, he was aware that Dincel did not have development consent for the works and use of the Premises which he admits he knew required development consent. Council submits that in those circumstances, the conduct was both deliberate and brazen. I accept this submission. 2. Notwithstanding the admissions properly made by Dincel and the specific matters accepted by Mr Dincel in his evidence, it was submitted that Dincel had otherwise been assiduous in efforts to obtain consent for the use of the Premises from at least May 2017. I find that the history of attempts to seek to legitimise Dincel's conduct is neither determinative nor persuasive. 3. Dincel also points to evidence that Council officers (including Mr Mitchell) conducted themselves in a manner, and made representations, which led Mr Dincel to the decision for Gaonor to purchase the Premises "thinking that Council would allow some storage use". Further, the respondents submit that Mr Dincel was "induced to believe" that Dincel could use and develop the Premises (and the Olathree Land) as a result of representations made by Council officers that Council was unlikely to take enforcement action against the respondents. 4. While Mr Dincel gave evidence of meetings he had with various Council officers commencing in May 2017 and that he understood that Council was "unlikely to take any action against the Respondents…" and would "effectively facilitate the proposed use", I do not find this evidence compelling in light of the evidence given by other witnesses and the contemporaneous correspondence between Council and the respondents (including Mr Dincel). Further, even if Dincel considered that the works and the use would, at some time in the future, be permissible, this does not explain the sheer size of the construction, and its ongoing use over a significant period of time, when it was apparent that there was no consent for those works or for the use to which the Premises continued to be put. 5. Moreover, to the extent that there is competing evidence and a dispute in relation to the intercourse between Council officers (in particular, Mr Mitchell) and Mr Dincel, I do not consider that Mr Dincel's "understanding" that Council would not take enforcement action in relation to either the Premises or other occupiers of premises in the locality is relevant, and again clearly not determinative, given that the contemporaneous written correspondence suggests that Council was considering those actions and had commenced action against various neighbouring sites where unlawful development was apparently being undertaken. Irrespective of this, the contemporaneous material, including emails passing from Council to the respondents, confirms that, at all material times, any re-zoning for future industrial development was some years away (being in the order of three to five years). There is no doubt that Mr Dincel was aware of this fact. One example is the email of 1 June 2017 from Mr Mitchell to Mr Esdaile, which he forwarded to Mr Dincel, headed "Dincel/PCC Meeting" which states: "Further to our meeting this week I have checked with our City Planning Department about the likely timing of the rezoning of land for future industrial development in the area we talked about in Kemps Creek to the south of your site. Their feedback was that it is still quite uncertain and likely to be in the order of three to five years. A lot of planning work has to occur first." 1. I consider that the contemporaneous written material makes it clear that Dincel could not have been under any misapprehension that the work it was undertaking on the Premises (and on the Olathree Land) at the very least required development consent and/or was not permitted in the then relevant zoning. The email from Mr Dincel to Council, noted at [24] above, is one example of the clear and frank evidence of Dincel's knowledge. 2. Moreover, conduct continued to be undertaken by Dincel (that is, significant further earthworks, construction and use of the Premises for storage) even when Council's position was made abundantly clear both in relation to representations (including numerous attendances by Council officers and conversations) and further, in the light of the Notice and the subsequent Order. In light of all the evidence, I do not accept that, apart from a suggestion that the zoning may change in the future, the conduct of Dincel is, or could be, in any way be attributed to, or excused by, suggestions, inducements or representations made by Council. 3. The conduct summarised at [15]-[27] and, in particular, the specific correspondence summarised at [22]-[25] are indicative, if not decisive, of a determination to proceed irrespective of the failure to adhere to the proper process to attain development consent. It is clear and apparently accepted by Mr Dincel that the commercial imperative was at the forefront of Dincel's conduct. I find that Dincel and Gaonor are sophisticated and successful commercial operators who have enjoyed, according to Mr Dincel, national and international success and notoriety for their product. I consider that the conduct of Dincel is indicative of a complete disregard for the planning framework. 4. While it is accepted that the knowledge and conduct of the respondents (in particular, Dincel) is relevant in the consideration of relief to be granted, and conscious, as noted at [209] below, that these civil enforcement proceedings are not criminal proceedings, although I do not find that this knowledge and conduct on its own to be determinative, the deliberate nature of the conduct and the knowledge that development consent was required weighs more persuasively in favour of granting relief. 5. As a separate matter concerning the conduct of Dincel, Council submits that Dincel imported and deposited fill which contained glass fines during February and March 2018 at a time when no valid Glass Sand Exemption was in place. 6. Although a recovered Glass Sand Exemption was valid from 11 November 2016 to 11 November 2017, and thereafter from 31 May 2018 onwards, Council notes that there was no operative glass sand exemption at the time that fill containing glass fines was imported onto the Premises between February and May 2018. Council submits that this constitutes an offence pursuant to s 144(1) of the Protection of the Environment Operations Act 1997 (NSW) ('POEO Act') as the Premises were therefore being used as a "waste disposal facility" without lawful authority and that these "further breaches" are additional matters which weigh in favour of injunctive relief being granted. 7. Dincel submits that any issue concerning s 144 of the POEO Act was not a pleaded issue and that, in any event, the Premises were not a waste facility and the Court does not have evidence before it as to how much fill was placed on the Premises outside of the two glass sand exemptions which were operative at other times. 8. I accept the submission of Dincel that, although a material issue in the proceedings concerns whether the fill deposited at the Premises and on 931 Mamre Road is contaminated (and the consequence thereof), I consider the question of whether the fill was lawfully imported is not strictly relevant to that issue and I make no findings as to the breach or otherwise of s 144 of the POEO Act. Orderly enforcement of the law 1. The orderly enforcement of the planning law is an important consideration where significant works and use of land has been undertaken without the requisite development consent. I am conscious that the relief sought by Council in these proceedings is not the enforcement of a private right, but the enforcement of a public duty imposed by an act of Parliament – through which act Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment. These proceedings have been brought by a consent authority as the proper guardian of public rights and its interest is deemed to be protective and beneficial, not private or pecuniary: Sedevcic at 340. 2. Although there was extensive evidence in relation to the environmental impacts that have been caused by the works and the impacts that may result from restoration of the Premises, it bears remembering that the conduct of Dincel has deprived Council of the opportunity to consider the merits of the development – particularly in relation to a relatively undeveloped site – and to consider what may be considered as baseline data in relation to matters regarding contamination; visual and acoustic amenity; heritage value; hydrological and geotechnical matters; and traffic. Council has further been deprived of the opportunity to consider the provision of appropriate infrastructure which would otherwise have been the subject of evaluation and assessment by the consent authority in considering such an application. Council would then have had the ability to refuse the application or, in the event that consent was granted, impose appropriate conditions in relation to construction and use. 3. I am conscious that relief ordering the removal of the fill by way of mandatory injunction is not the only remedy available to a government authority for breaches of the Act and that, in exercising the available discretion, it is generally appropriate to leave to the criminal law the punishment of unlawful conduct involving unlawful works and unlawful use, however noting of course that a wrongdoer should not be allowed to benefit from its wrongdoing. I am also conscious of the care required to be taken to ensure that relief is not used as a substitute for criminal prosecution, and that it is not appropriate for the Court in the exercise of its civil enforcement jurisdiction to punish wrongdoers under the guise of remedying a breach. Whether any injunction should be softened or mollified by suspending operation 1. I consider that, consequent upon my findings above and the declarations I intend to make, the operation of the injunction in relation to the use of the Premises should be suspended for a period of four months. In relation to the operation of the mandatory injunction to remove the unlawful works, restore the ground level of the Premises to the ground level that existed prior to the carrying out of the unlawful works, and the disposition of the unlawful landfill at a site that can lawfully accept the fill, I consider that a suspension of this relief for a further six months (being 10 months from judgment) provides an appropriate balance of the factors to which I have referred. 2. I have chosen these timeframes, which I note are less than those sought by the respondents and are greater than that which were otherwise sought by Council, taking into account all of the evidence (especially in relation to hardship) as well as the fact that some time has passed since Dincel first became aware of Council's concerns in relation to its conduct and, more particularly, since the commencement and hearing of these proceedings. Suffice it to say, I have determined the time for the respective suspensions of the relief by balancing the public interest in equal compliance with the law and the "degree of irremediability occasioned by the breach and the expense or inconvenience which would follow the law's enforcement" (Associated Minerals Consolidated Ltd v Wyong Shire Council (1974) 2 NSWLR 681 at 692) as well as the damage to the environment and the actual conduct of the respondents. I also take into account that courts have frequently emphasised the importance of compliance with the planning framework and the danger of allowing individual hardship in particular cases to erode the general operation of planning schemes. 3. I repeat my comment above that a suspension of four months (in relation to use of the Premises) will allow time for the respondents to seek an alternative storage location (or make other commercial arrangements) which may ameliorate the losses including jobs and profit that would otherwise be incurred if the respondents were only given 28 days to cease this use (as the securing of alternative storage premises would no longer require a reduction in the manufacturing capacity of the Erskine Park plant to create the required additional storage space). 4. As noted above, at the further hearing on 14 January 2021 the respondents called further evidence that a Class 1 appeal has now been filed in this Court. As the evidence of Ms Murray indicates that a hearing of that appeal may be available within four or five months, the respondents submit that any injunctive relief should be further delayed on account of this fact. I do not place significant weight upon this recent development in considering the softening of the relief. Leaving aside that there has been further delay by the respondents, a fact I do not find determinative, there remains the concern which I raised with the parties at the further hearing on 14 January 2021 that, apart from the use continuing to be undertaken by Dincel at the Premises, there appears a real concern that a development consent cannot validly be granted for the development that has already taken place. Although counsel for the respondents accepted this was a concern, Dincel requests further time to at least allow the respondents the "opportunity" to seek to regularise the conduct. 5. I consider the timeframes that I have now determined provide an appropriate balance to allow the orderly cessation of the use and the restoration of the Premises and 931 Mamre Road. I also consider that these timeframes appropriately account for the fact that the restoration works will require proper environmental management (for example, through an environmental management plan) to ensure the orderly restoration of the Premises and 931 Mamre Road. 6. In forming my view that mandatory injunctive relief in relation to the restoration of the Premises ought to be suspended, and in balancing the competing considerations (as I have done above in relation to the suspension of the injunctive relief regarding the use of the Premises) and taking into account the various timeframes proposed in the evidence (such as those referred to at [160] above), I consider that a period of six months is an appropriate length of time to allow for restoration of the Premises to occur. This six-month suspension must be considered as being in addition to the four-month suspension I have given in relation to the cessation of use and is therefore operational 10 months from the date of judgment – thereby allowing some flexibility to Dincel as to how it chooses to conduct its affairs. While I note that this duration is less than that which Mr Tooker opined was required, I note that he nonetheless notes that his estimated times for restoration and the like could be shortened with different work efforts. Conclusion regarding injunctive relief 1. In summary, taking into account the significant extent of the importation of fill and the earthworks undertaken; the fact that the respondents have been on notice of the breaches since at least late March 2018 and have clearly chosen not to respond to the earlier Order (possibly in the hope that some form of rezoning and/or development consent or approval may be obtained); the public interest in the enforcement of the breaches; the impacts to the environment (which I do not consider to be minor as suggested by the respondents); that Dincel has clearly obtained a private financial advantage through its contravention of the planning laws; and that it is clear, on the whole of the evidence, that the decision taken by Dincel to import the fill and undertake the works was deliberate or, at the very least, in the knowledge that development consent was required and had not been obtained, I consider that injunctive relief is appropriate and that an order for restoration ought to be made. I do not consider that this relief (with the suspension I impose) would work such an injustice as to be disproportionate to the ends secured by enforcement of the legislation. Relief affecting neighbouring land 1. There was a dispute between the parties as to whether the Court should order the respondents to restore parts of 931 Mamre Road affected by the works. The controversy arises by dint of the fact that the constructed hardstand areas or "earthen platform" (including the necessary batters surrounding the works undertaken on the Premises) encroaches over the common boundary into 931 Mamre Road. 2. Council submits that any order for restoration of the Premises should include 931 Mamre Road because the works undertaken at 931 Mamre Road, like the Premises, were carried out by Dincel without development consent. Council submits that it is a matter for Dincel to ensure compliance with any such order of the Court, including obtaining the necessary permission of the owner of 931 Mamre Road – who Council submits has already consented to the removal of the fill on their property by the respondents in any event. I accept this submission. 3. The respondents submit that the Court should not make any order as to the restoration of 931 Mamre Road as Council's pleadings did not allege any occurrence of unlawful activity at 931 Mamre Road and the owner of that land has not been joined to the proceedings. The respondents also submit that the neighbour has not objected to, and may have consented to, the works at the Premises in the past, and that the Court does not have any evidence as to what has since occurred at, or what the impact of restoration would be upon, 931 Mamre Road. 4. I do not accept the respondents' position. It is trite that persons directly affected by an order should ordinarily be joined to litigation and that the obligation to join necessary parties is a matter of obligation not discretion: Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 ('Ross') at [54], [57]. However, a party may not necessarily be required to be joined in circumstances where, for example, that party has positively assented to an order but has nonetheless declined to be joined or heard: Ross at [61]-[62]; Community Association DP270447 v ATB Morton Pty Ltd [2019] NSWCA 83 at [118]. 5. The evidence before the Court, being correspondence dated 13 February 2020 from the solicitors acting for the owner of 931 Mamre Road to Council, unequivocally indicates that the owner of 931 Mamre Road provides consent for "Penrith Council to seek an order that Dincel Corporation System Pty Ltd and Gaonor Pty Ltd remove the fill they placed on her land without Development Consent". This is, in my view, a positive assent to and order of the Court in circumstances where there is no allegation that the owner of 931 Mamre Road is in breach of the EPA Act and as such I consider that the owner is not a necessary party to these proceedings. 6. I am comforted in my view because it is clear from earlier correspondence of 4 December 2018 from the owner of 931 Mamre Road to Council that, at that time, she was aware and "accepted" that some "earthfilling can extend… to the edge of our market gardens". These circumstances, and in particular her recent instructions recorded in her solicitor's letter of 13 February 2020 to Council's solicitors, satisfy me that the owner is aware of the consequence of an order to remove the fill "placed on her land without Development Consent". 7. A similar position was adopted by Preston J in Sahade where his Honour recognised that a party, in that case an owners' corporation, was directly affected by a proposed order and, despite being aware, did not wish either to be joined or heard in the proceedings. 8. There is little doubt, and I find, that the unlawful works on the Premises effected works on 931 Mamre Road and that, given the nature and extent of the works, any restoration would involve some works on 931 Mamre Road. For the reasons I have otherwise given in relation to the Premises, I find that it is appropriate that the order requiring Dincel to restore the Premises similarly require Dincel to restore the areas of 931 Mamre Road that have been affected by the unlawful works and use. Form of orders 1. The parties made competing submissions regarding the precise form and language of the appropriate relief. 2. For the reasons I have given, I consider that it is appropriate to make declarations in relation to Dincel's breaches of s 4.2, but not s 4.3, of the EPA Act; that the injunctive relief preventing use of the Premises be suspended for four months; and that the order for restoration of the Premises and 931 Mamre Road be suspended for a further six months. I will make these orders accordingly. 3. In lieu of an order sought in the amended summons restraining Dincel from using the Olathree Land, Dincel has proffered an undertaking that it will not occupy the Olathree Land for the purpose of a distribution centre for the delivery and storage of its product or, alternatively, for the storage of its product without development consent. Dincel submits that the undertaking is in substantially the same terms as the relief sought in the amended summons. 4. Council opposes the acceptance of the undertaking in circumstances where it has expressed ongoing concerns that Dincel has knowingly acted in contravention of the law despite a number of notices and the like. I accept Council's position and I find that it appropriate to make an order generally in accordance with that which is sought in the amended summons. 5. In relation to a number of other matters, the respondents proffered a form orders that it suggests would ameliorate, at least in the short term, some of the concerns that would otherwise reside with the Court in relation to Dincel's ongoing conduct (presumably on the basis that there will be a suspension of injunctive orders for some time to allow orderly adherence to the orders). I do not consider these further proposed orders, subject to one exception, to be appropriate. I will deal with each. 6. Dincel seeks that the respondents have liberty to apply to the Court to extend the date for compliance with any orders made in the event there is a "material change in circumstances" after the date on which orders are entered. Given the time that has already elapsed since the development was undertaken by Dincel in the knowledge that consent was required, Dincel's failure to cease or limit its conduct prior to or after these proceedings were commenced, and the suspended nature of the orders I make, I do not make this order as it would lead to uncertainty in the final resolution of the matter. 7. The respondents also propose an order that, within two weeks of the date of any orders made, the respondents must not permit the size of trucks greater than 16m to enter the Premises otherwise than approved and compliant with conditions of a development consent. They submit such an order would address concerns raised by the traffic experts concerning the swept paths of trucks of more than 16m entering and exiting the Premises. 8. While Council appears to accept that a limitation on the size of trucks entering and exiting the Premises is appropriate, Council notes that this limitation does not, on its own, address the concerns regarding the ongoing use of the Premises, particularly where: first, there is no development consent for continuing use for any trucks to conduct pick up and deliveries; second, there are existing inadequacies in the design of the entry and exit driveways; and third, adequate site distances have not been demonstrated. 9. Council further submits that the acceptability or otherwise of the proffered driveway design to RMS is unknown in circumstances where work has been undertaken without any requisite approval and, further, where there is no specific evidence about which of the respondents' contractors (or others) use trucks over 16m in any event. In those circumstances, Council is unable to ascertain whether such an order would be able to be implemented or enforced. 10. I accept the concerns of Council that this proposed order would inadequately resolve concerns in relation to the ongoing use of the Premises. However, given that I find that Dincel's ongoing use of the Premises is unlawful and ought to cease in any event, these issues will no longer remain of concern once the orders requiring cessation of use and restoration of the Premises come into effect and are complied with. As such, I consider that an order in this form, while not condoning the conduct, is an appropriate interim (and temporary) measure which may mitigate to some extent concerns regarding the swept paths of trucks accessing the Premises in its present configuration. 11. The respondents also suggest an order that, within 12 weeks of the date of any order made by the Court, the respondents cease to use the hardstand area referred to as "Storage Area 2" (also described as "Storage Site Plan No. 17076 C21" as shown in Ex A, Tab 3, also noted as "Area F") for product storage until otherwise approved in accordance with the conditions of a development consent". The respondents submit that such an order would mitigate the impact of allowing Dincel to remain on the Premises without compromising its ongoing financial viability. 12. I do not consider that this order is necessary nor appropriate given the orders which will otherwise be made and as the Court is already allowing a suspension of the operation of injunctive relief for reasons detailed earlier. Conclusion 1. In light of my findings above and for the reasons stated, it is appropriate that orders be made denouncing the breaches committed by Dincel and requiring restoration of the Premises to their pre-existing ground level prior to the unlawful works being undertaken. However, as considered earlier, conscious of the magnitude of this task, the costs which are likely to be incurred, the somewhat protracted nature of the enforcement action (including these proceedings) that has been taken against the respondents, and the fact that the works involved must be appropriately managed and likely require a form of environmental management, I find that it is appropriate to allow the respondents four months to cease the use of the Premises and a further six months to fulfil their restoration obligations. 2. The usual costs order in Class 4 proceedings is that costs follow the event. As Council has been successful in its application, I consider that the respondents should pay Council's costs in the proceedings. However, as the parties have not made submissions on this matter, if a different order is sought then such an application should be made within 21 days of the date of this judgment. Orders 1. The Court: 1. Declares that Dincel Construction System Pty Limited ('Dincel'), by itself and its contractor, carried out physical works at 919-929 Mamre Road, Kemps Creek ('Premises') from 23 February 2018, which consisted of the clearing of vegetation from the Premises; excavation, importation and deposition of at least 35,178m³ of fill and the construction of earthworks including two hardstand areas of a combined size of approximately 33,000m²; placement of gravel seal surface over the two hardstand areas, an earth mound on the eastern frontage, and a batter along the entire southern boundary raising the levels of the land surface; works to a dam including dam embankment and raised levels; in addition to the installation of a toilet block, fuel cell and shipping containers; the erection of a shade structure, fence and gates; the construction of drainage works; and the placement of its building formwork product on the hardstand areas ('unlawful works') without development consent, in breach of s 4.2 of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act'). 2. Declares that Dincel used the Premises for the purposes of a distribution centre for the delivery and storage of its product, and for the purpose of dispatch of its product to customers by the delivery of the product by Dincel or its agents, since at least 18 December 2018 and to the present day without development consent, in breach of s 4.2 of the EPA Act. 3. Declares that Dincel used part of 901-915 Mamre Road, Kemps Creek, being the land in Lot 33 of DP 258414 ('Olathree Land'), for the purposes of storage premises for delivery and storage of its product from early April 2018 to 2 December 2019 without development consent in breach of s 4.2 of the EPA Act. 4. Declares that Dincel has, by itself, its contractors, servants or agents, carried out development on land at 931 Mamre Road, Kemps Creek otherwise known as Folio 36/258414 by the deposition of fill and construction of an earthen platform in breach of s 4.2 of the EPA Act. 5. Orders that from 15 May 2021, Dincel cease the unlawful use of, and be restrained from unlawfully using, the Premises for the purposes of a "storage premises" or "warehouse or distribution centre" in breach of s 4.2 of the EPA Act. 6. Orders that Dincel is restrained from using the Olathree Land for the purposes of storage premises or a distribution centre without development consent, in breach of s 4.2 of the EPA Act. 7. Orders that, within 2 weeks of the date of these orders, the respondents must not permit any trucks greater than 16m to enter the Premises unless otherwise approved and compliant with the conditions of a development consent. 8. Orders that, by 15 November 2021, Dincel: 1. Remove all items from the Premises and the Olathree Land associated with the use of the Premises and the Olathree Land for purposes which are unlawful or prohibited, including all building and construction products and materials, equipment, machinery and vehicles; 2. Remove the unlawful works and restore the ground level of the Premises and 931 Mamre Road, Kemps Creek to the ground level that existed prior to the carrying out of the unlawful works; and 3. Dispose of the unlawful fill at a waste facility or site that can lawfully accept the unlawful fill. 1. Orders that the respondents are to pay Council's costs of the proceedings unless an application is made for an alternative costs order within 21 days of the date of this judgment. ********** Annexure A (2444705, pdf) Annexure B (959395, pdf) Annexure C (2295104, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 January 2021