IRON GATES PTY LTD v OSHLACK SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, PRIESTLY and BEAZLEY JJA 17 and 18 December 1997, 5 February 1998 [1998] NSWCA 111 ENVIRONMENTAL LAW — _ ENVIRONMENTAL PLANNING AND ASSESSMENTS ACT 1976, s76 — NATIONAL PARKS AND WILDLIFE ACT 1974 — development, allegedly carried out in breach of conditions of development consent and in breach of National Parks and Wildlife Act — primary judge's findings as to extent and severity of breaches challenged — HELD — no successful challenge made to finding of primary judge. Gleeson CJ This is an appeal from a decision of the Land and Environment Court. Some of the issues in the case were decided at first instance by Stein J. The remaining issues were decided by Pearlman J, the Chief Judge of the Land and Environment Court. Both Stein J and Pearlman J made orders which are the subject of the appeal, but it is the reasons for judgment of Stein J, not those of Pearlman J, which have been the focus of argument. The appellant is a land developer. In pursuance, or purported pursuance, of a development consent granted by the second respondent, Richmond River Shire Council, the appellant carried out development in the form of road construction, earthworks, and extensive clearing, in connection with a subdivision of an area of approximately 40 hectares near Evans Head in northern New South Wales. The development was highly contentious because of the environmentally sensitive nature of the land. By the time the matter came for hearing before Stein J, a substantial part of the proposed development had been carried out. The first respondent alleged, and Stein J found, that the work had been carried out in contravention of s76(2) of the Environmental Planning and Assessment Act 1979, and in breach of certain conditions of the development consent. It was further contended, and held by Stein J, that the appellant had caused damage to the habitat of threatened species in contravention of s118D of the National Parks and Wildlife Act 1974. Stein J granted injunctions restraining the appellant from carrying out further development pursuant to the consent, and from completing certain roads. He adjourned for further consideration the question whether there should be mandatory orders for remediation and reinstatement of the land. It was that issue which came before Pearlman J. Her Honour made certain orders for remediation and reinstatement. Insofar as there is a challenge to those orders, the substantial basis of the challenge is not directed towards Pearlman J's exercise of discretion but, rather, to the findings of Stein J on which that exercise of discretion was based. It was argued on behalf of the appellant that, to the extent to which the appellant was able to make a successful challenge to the findings of Stein J, then it would have demonstrated that Pearlman J exercised her discretion taking into account immaterial or inappropriate considerations. Most of the arguments advanced by way of criticism of judgement of Stein J were directed towards his findings of fact. That is a significant consideration for this court. It was also argued that in certain respects Stein J misconstrued the 2 UNREPORTED JUDGMENTS development consent, but that argument was closely associated with the criticism of the appreciation which his Honour had made of the facts of the case. It is also material to note, although there was no dispute about the relevant legal principles, that decisions such as Mison v Randwick Municipal Council (1991) 23 NSWLR 734 and Ziade v Woollahra Municipal Coucil (Court of Appeal, unreported, 28 April 1994) formed part of the legal context in which the issues in the case were litigated. It is unnecessary to expand upon those authorities, but an appreciation of what they decided is necessary for a complete understanding of the dispute, and the way in which it was resolved in the Land and Environment Court. The development consent The development application related to land at Iron Gates known as portions 276 and 277. It contemplated 110 residential lots. It was expected that there would be later development of adjoining land, but that is not presently material. As was noted, the proposed development was controversial, and had given rise to litigation. (See Oshlock v Richmond River Shire Council (1993) 82 LGERA 222). Part of the environmental sensitivity arose out of the presence on the land of littoral rainforest, and extensive vegetation. Additionally, the land was said to be a habitat of endangered fauna. The application for development consent was accompanied by a number of reports and proposals produced on behalf of the developer, and subsequently annexed to the development consent, which went into considerable detail as to the steps to be taken to protect the environment and endangered fauna. The following are some examples which are of particular relevance to the issues in this appeal. Cl3.6 of a report of Walker and Newton Pty Ltd was headed "Subdivision Design Principals" (sic). It said: "The principal aim, of the proposal is to maximise the retention of the timbered areas and the natural environmental character of the site. A principal feature is the high proportion, of the total site set aside as interconnected vegetation corridors. These will comprise timbered road reserves, open space areas, environmental protection areas, and vegetation 'easements' extending into and through timbered allotments, all being linked to the major vegetated corridor running parallel to the shores of the Evans River. This interconnection of timbered areas is crucial as a means of providing useful corridors for fauna moving through the Iron Gates property as a whole, while maintaining the amenity of the area. Residential housing will be developed on lots having an area of greater than 800 m2 and will be combined with "green easements', which will ensure the retention of the tree cover which could be at risk if smaller lot sizes were to be created. The use of controls on tree protection within, the subdivision, will have a number of significant benefits: * the retention of substantial numbers of trees will provide habitat for fauna. « the retention of significant vegetation on the site will minimise soil erosion and sediment flow potential. Roads will, wherever possible, be designed with minimal cut and fill to reduce the incidence of site disturbance, both to the physical characteristics and the existing water table characteristics." URJ IRON GATES PTY LTD v OSHLACK (Gleeson CJ) 3 Cl3.5 of the same report was headed "Bushfires". It said: "Considering the prevailing threat of bushfires to the proposed community at iron Gates, consideration has been given in the development to the measures of hazard reduction contained in the Plan of Management prepared by Outline Planning Consultants. Perimeter access reserved have been provided in areas where the proposed development abuts natural bushland. These access ways will have a cleared width of 6m, with a minimum formed width of 4m. All subdivision, roads are of a sufficient width to allow the passage of fire control vehicles." The report of Outline Planning Consultants dealing with perimeter reserves said: "Where the subdivision abuts timbered land in a bushfire prone area, perimeter roads should be located immediately behind the allotments in the bushland with a minimum cleared width of 6m and a minimum formed width of 4m Such roads shall be adequately drained to provide continuous dry weather access for fire fighting vehicles." The contemplation that the cleared area of perimeter access reserves was to include an unsealed road capable of carrying fire vehicles is of importance when regard is had to what was ultimately constructed. The report of Outline Planning Consultants also said: "The overall aim of the derived Plan of Management for the site will be to integrate residential development with the natural environment at the same time as retaining the timbered character of the Iron Gates property." The same report had the following to say about drainage: "Most drainage problems encountered on the site can be overcome by remedial engineering measures, in sympathy with surrounding environments. Particular care will need to be taken to ensure that nutrient-rich silt-sediment laden stormwaters do not adversely impact on nearby sensitive vegetated areas or habitats. Improved water quality of storm water discharges would result from retention of ground cover, implementation of erosion, and sediment control and stabilisation of natural draining lines." Emphasis was placed on minimising tile size of roads. The report of Outline Planning Consultants said: "Tt is proposed that most residential allotments to be created will be situated in quiet cul-de-sacs or on loop roads. The roads proposed will be narrow winding roads deliberately designed to ensure that vehicle speeds are reduced to make access-ways safe not only for pedestrians but also for wildlife. Given that one of the greatest threats to koalas and wildlife generally are vehicles, it is recommended that a number of measures be put in place to reduce the incidence of road accidents and mortality. These include: * the use of cul-de-sacs and loop roads, to minimise through traffic within any subdivision within the Iron Gates property. * narrow winding road pavements to reduce traffic speed, and hence increase the chance for motorists to see koalas and wildlife crossing local roads to avoid collision." The following conditions attached to the development consent are of particular significance: 4 UNREPORTED JUDGMENTS "1 Development of the site shall be carried out generally in, accordance with the documentation lodged by Walker & Newton (including reports by Outline Planning Consultants arid Dr Leong Lim), subject to such modifications required to comply with conditions set out hereafter. 9 All native vegetation is to be retained apart from, that which is required to be destroyed by constructing work required by this approval or proposed in the application or within 2m of all proposed boundaries or clearing necessary, for the establishment of bushfire breaks. 18 Stripping and stockpiling of existing topsoil on site, prior to commencement of earthworks, and the subsequent re-spreading of this material so as to provide a minimum thickness of 80mm over the allotments and footpaths and public reserves, upon completion of the development works. 26 Perimeter access reserves shall be a minimum, width of 15m." The perimeter access reserves were in three locations, shown on a plan attached to the development proposal. One was to run along the eastern boundary of the property. A second was to run roughly in a direction northwest to southeast adjacent to an environmental buffer zone which was in turn located between some proposed allotments and littoral rainforest. The third was in the southern part of the land also between proposed allotments and an environmental buffer zone adjoining littoral rainforest. Senior counsel for the appellant emphasised the word "general" in condition 1. The legal consequence of such a condition was considered by Stein J in his reasons for judgment. No challenge has been made to the principles enunciated by his Honour, but there was complaint about the way in which he related those principles to the facts of the case. Senior counsel for the appellant also emphasised the reference in condition 26 to the minimum width of perimeter access reserves as 15m. This replaced the reference to 6m which had been made in the reports. (See cl3.5 in the Walker & Newton report quoted above). It was rightly pointed out that a necessary consequence of this increase in the width of perimeter access reserves was either or both of some decrease in allotment sizes in certain places, or some decrease in the area of the environmental buffer zone in certain places. This, it was said, was a matter that was overlooked by Stein J, or given insufficient weight in some of this findings of fact. The actual development The most vivid illustration of the contrast between the development as proposed and the development as constructed is to be found in an aerial photograph which was exhibit 1 in the proceedings before Pearlman J. Substantially everything which the appellant did was done with the knowledge and approval of either the counsel itself, or of officers of the council. An argument which was unsuccessfully advanced at first instance, and which was not pressed on this appeal, was that the approval of the Council of certain engineering plans had the legal effect of modifying or altering the terms of the development consent. It was also argued at first instance that the knowledge and approval of the Council of what was done by the developer was a relevant URJ IRON GATES PTY LTD v OSHLACK (Gleeson CJ) 5 discretionary consideration to be taken into account in determining the nature of any relief to be granted against the appellant. After considering a substantial number of matters of detail to which it will be necessary to return, Stein J said: "The cumulative result of the discrepancies of the subdivision development as contained in the development application and supporting documentation and expressed in the consent, and as it has been actually undertaken, is that the development is radically different from the environmental sensitive subdivision, with 'green easements' and narrow meandering cul-de-sacs utilising natural drainage, which was approved." That is a fair general summary of what was disclosed by the evidence. It is necessary now to turn to the detailed respects in which what was done was different from what was proposed, in order to consider the challenges made to the findings of Stein J about those matters. It should be emphasised that in important respects there was no challenge to the findings of Stein J. It is only necessary to look at certain photographs, including the one mentioned above, to see that a number of findings are unchallengeable. Contrary to what was proposed, there was extensive clearing of the subject land. Indeed, the timber on substantial portions of it was clear-felled. What was described in the consent as a "wildlife corridor' is, in fact, an indistinguishable part of a much larger area of flat sandy unvegetated land. The proposed wildlife corridor was obliterated. Far from retaining all native vegetation except to the extent to which its destruction was necessary, the developer, in substantial areas of the subject land, totally destroyed all vegetation. Those matters are not in dispute. However, one of the most striking aspects of the difference between what was proposed and what was done, which is in dispute, relates to the matter of perimeter access reserves and drains. It is convenient to deal with that item first. Perimeter access reserves and drains By agreement with the Council. the developer constructed what were described by Stein J as massive earthworks in the form of open stormwater drains running the length of the first two of the three proposed perimeter access reserves referred to above. What was described as the eastern drain ran just inside the eastern boundary of the property. What was described as the western drain ran along the north eastern boundary of an area of littoral rainforest in the centre of the site. The eastern drain was 317m long. The western drain was 260m long. Both drains were 15m wide, and between 2 and 4m deep. There are numerous respects in which the construction of those drains was inconsistent with the development consent. It is necessary to mention only two. The eastern drain occupies substantially the whole of the site of what was supposed to be the perimeter access reserve. The perimeter access reserve was supposed to provide an unsealed roadway suitable for use by fire fighting vehicles. That has completely gone. The western drain at various points encroaches substantially into what was supposed to be an environmental buffer zone. At certain points it eliminates the buffer zone altogether, so that as Stein J observed, there are exposed roots of trees in the littoral rainforest area. Giving full recognition to the significance of the word "generally" in condition 1 of the development consent, and allowing for the practical significance of condition 2G insofar as the width of the perimeter access reserves was increased 6 UNREPORTED JUDGMENTS from 6m to 15m, nevertheless, the finding by Stein J that the construction of these drains constituted a gross departure from the development consent and a substantial breach of the conditions of the consent appears to have been not only fully justified, but virtually inevitable. Wildlife corridor buffer zones In relation to the proposed wildlife corridor referred to in the development consent and attached documents, Stein J said: "T accept the evidence that the vast majority of the vegetation - undergrowth, understorey, midstorey and trees - have been removed. This has destroyed the integrity of the wildlife corridor required by the consent." The photograph exhibit 1 shows what his Honour was talking about. The conclusion is unassailable. In relation to the environmental buffer zones required by the development consent, Stein J referred to the impact on those zones of the drains to which reference has already been made. His Honour said: "While the placement of the drains within the designated buffer zones may be advantageous to the development by minimising incursions into the area available for development, it is at the expense of the buffer zone which was intended as an important environmental safeguard. This is a clear breach of the consent, and evidently not an inadvertent one." It was argued on behalf of the appellant that in some way the finding by Stein J in relation to the wildlife corridor was affected by what was said to be a failure to appreciate the clearing involved in a certain powerline easement. There is no warrant for concluding that Stein J was under any misapprehension in relation to that matter or that his judgment was affected by it. In relation to the buffer zone, it was argued that Stein J appeared to have overlooked the significance of the increase in the width of the perimeter access reserves from 6m to 15m. I am not persuaded that his Honour overlooked that matter, and there is no reason to doubt that he took into account when making his factual judgment. Road widths It was represented to be an important aspect of this development proposal that roads would be kept to a minimum width. The Outline Planning report said that in the main most streets would be cul-de-sacs of widths varying from 4m to 7m. Short residential streets would be between 4 and 5m wide, and main collector street widths would be 7m wide. Stein J's finding about this matter was as follows: "Mr McCotter's evidence, which I accept, is that the roads constructed on the site are 7-1lm wide, rather than the 4-7m which had been indicated in the application. He also gave evidence that the increased road width substantially increase the amount of vegetation which was removed. Accordingly, as well as indicating a breach of the condition implied by the Outline Planning report that roads would be 4-7m, the increased road widths brought about the further breach of Condition 9 directly the though the additional clearing which that entailed and indirectly by the greater cut and fill which was undertaken." In challenging that finding, the appellant contended that the reliance upon the evidence of Mr McCotter was misplaced. It was also contended that Mr McCotter had undertaken his measurements of road widths, or pavement widths, erroneously, by including kerbs and channels. URJ IRON GATES PTY LTD v OSHLACK (Gleeson CJ) 7 Additionally, reference was again made to the use of the word "generally" in Condition | and it was said that any departure from the terms of the consent was minimal. These were all matters for factual judgment by Stein J, and error has not been demonstrated. There was evidence upon which it was well open to his Honour to come to the conclusions he expressed. His findings of primary fact are supported by the evidence. It is true that an appreciation of the significance of the difference between the width of the roads as constructed, and as originally envisaged, is a matter upon which different views could be held. However, it has not been shown that the finding of Stein J should be disturbed. Allotment sizes The minimum sizes of the allotments was to be 800 m°2;. This was said to be of significance in relation to the "green" aspect of the subdivision. Both before this court, and before Stein J, there was detailed evidence about the ultimate size of individual allotments. It is not necessary to repeat the detail of the figures. A number, which Stein J was entitled to regard as substantial, were less than 800 m°2;, by an extent which Stein J was entitled to regard as significant. It is not possible to account for the reduction in size in all cases by reference to the increase in the width of what should have been perimeter access reserves to 15m. Breach of condition 18 There was ample evidence, including the evidence of Mr Payne and Mr Ardill, which warranted a conclusion by Stein J that there had been a contravention of condition 18. National Parks and Wildlife Act s118D S118D provides that a person must not, by an act or omission, do anything that causes damage to any habitat of a threatened species if the person knows that the land concerned is habitat of that kind. It was not an issue in this appeal that the evidence showed that the work undertaken by the developer caused, in sonic places, some damage of the kind referred to in s118D. The issue in the appeal related to the matter of knowledge, and turned upon the fact that the developer contended, in evidence before Stein J, that although it knew that some parts of portions 276 and 277 constituted habitat of the relevant kind. it did not know that the particular parts which were the subject of damage constituted habitat. Before this development occurred there was a great deal of controversy, including litigation, about the consequences for local fauna of what was proposed. The appellant had engaged the services of an expert in that subject, Dr Lim, and his report was one of the documents annexed to the development consent. Stein J had before him evidence of all of the information that was available to the developer, and he also had the benefit of seeing the principal executive of the developer questioned on the subject. In the light of that evidence he was satisfied that the developer possessed knowledge that the whole of portions 276 and 277 could properly be described as the habitat of threatened species. There was ample evidence to support that finding, and no successful challenge has been made to his Honour's conclusion of fact. 8 UNREPORTED JUDGMENTS Conclusion It has not been demonstrated that this court should interfere with any of the findings of fact, or any aspect of the discretionary judgment, of Stein J. Consequently, the challenges to the orders made by Stein J and Pearlman J must 5 fail. The appeal should be dismissed with costs. Priestley JA I agree with Gleeson CJ. 10 Beazley JA I agree with Gleeson CJ. Appeal dismissed. Counsel for the appellant: D Jackson QC 15 Solicitors for the appellant: Deacons Graham & James Counsel for the respondent: (1) P W Larkin / J E Stuckey-Clarke (2) P Beazley 20 Solicitors for the respondent: (1) Environmental Defenders Office (2) Hannigans, Casino