Land and Environment Court of New South Wales CITATION : Pittwater Council v Schiliro [2000] NSWLEC 175 APPLICANT Pittwater Council PARTIES : RESPONDENT Schiliro FILE NUMBER(S) : 40021 of 2000 CORAM: Pearlman J KEY ISSUES: Injunctions and Declarations :- placing of fill - earthworks - no development consent - breach of s 121B order under the EP&A Act - exercise of the Court's discretion under s 124 of the EP&A Act Pittwater Development Control Plan No 11 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 121B, s 124 Pittwater Local Environmental Plan 1993 CASES CITED: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 DATES OF HEARING: 05/07/00, 06/07/00 DATE OF JUDGMENT: 08/15/2000 APPLICANT Mr R P L Lancaster (Barrister) SOLICITORS Mallesons Stephen Jaques LEGAL REPRESENTATIVES: RESPONDENT Mr R J Legg (Solicitor) SOLICITORS Burridge & Legg JUDGMENT: IN THE LAND AND 40021 of 2000 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 15 August 2000 PITTWATER COUNCIL Applicant v LUIGI SCHILIRO Respondent JUDGMENT Introduction 1. This case concerns the placing of fill upon a property at Elanora Heights. 2. Pittwater Council seeks declaratory and injunctive relief and, in particular, seeks an order for the removal of the fill. The facts and the orders sought 3. There are a number of factual matters which are not in dispute. They are as follows: (1) Clause 10 of the Pittwater Local Environmental Plan 1993 provides that a person must not carry out earthworks, including landfill, without the prior consent of the council; (2) Between February 1999 and May 1999, the respondent, Mr Schiliro, placed fill and carried out earthworks upon the property which he owns, known as 15 Dendrobium Crescent, Elanora Heights ("the site"). It is a two-hectare property, located about 20 m from the eastern boundary of the Garigal National Park; (3) Between May and October 1999, Mr Schiliro placed topsoil over the disturbed area; (4) The fill was deposited in two places upon the site, but it is only the fill which has been placed upon a section of the northwest corner of the site which is the subject of this appeal. I will refer to this area as "the disturbed area". It is located adjacent to a rock ledge, and below the rock ledge the site slopes down through vegetated areas towards the national park; (5) No development consent was obtained for the placement of the fill, nor was it obtained for any earthworks; (6) On 25 May 1999, the council issued an order under s 121B of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"), requiring Mr Schiliro to comply with the following: 1. Cease any further landfilling/earthworks forthwith. 2. Remove the fill and reinstate the land to the condition of the land prior to the landfilling/earthworks or lodge a Development Application within fourteen (14) days. 3. Install siltation/sediment controls to prevent any siltation/sediment leaving the disturbed areas within seven (7) days. 4. An issue in dispute is whether or not the s 121B order has been complied with. The council asserts that it has not. However, Mr Legg, appearing for Mr Schiliro, responded to the council's claim by saying that the s 121B order has substantially been complied with because Mr Schiliro has ceased any further landfilling or earthworks, he lodged a development application, and he installed a sandstone rock retaining wall with shade cloth behind it by way of sediment control. These contentions are not, however, borne out by the evidence. On 20 October 1999 (some months after the issue of the s 121B order), Mr M F Hayward, an environmental compliance officer for the council, observed that topsoil had been spread over part of the disturbed area, and that no sediment controls had been put in place. Furthermore, whilst it is true that Mr Schiliro lodged, or attempted to lodge, a development application, he did so on 28 April 2000, which is almost a year after the 14 days stipulated in the s 121B order. I find therefore that the s 121B order was not complied with. My finding is to some extent corroborated by Mr Schiliro's oral evidence, in which he did not deny that he had failed to comply with the s 121B order. 5. Having regard to these facts and circumstances, the council seeks, in summary, the following relief: (a) a declaration that Mr Schiliro has failed to comply with the s 121B order and is accordingly in breach of the EP&A Act; (b) a declaration that Mr Schiliro has carried out landfilling and earthworks on the site without first having obtained development consent in breach of the EP&A Act; (c) an order restraining any further landfilling or earthworks on the site; (d) an order requiring the installation of siltation and sediment controls; (e) an order that Mr Schiliro remove the fill and reinstate the disturbed area to its prior condition. The exercise of the Court's discretion 6. From the facts which I have set out, and, in particular, from my finding that landfilling and earthworks have been carried out without development consent, and that the s 121B order has not been complied with, I make the inevitable ultimate finding that Mr Schiliro has committed a breach of the EP&A Act. In such circumstances, the Court is entitled, under s 124 of the EP&A Act, to make such order as it thinks fit to remedy such a breach. The discretion which s 124 casts upon the Court is wide and unfettered ( Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339). 7. It is clear that the council is entitled to the two declarations which it seeks, and the injunctions restraining further landfilling or earthworks on the site, and the installation of siltation and sediment controls. However, the critical question for the exercise of the Court's discretion is whether the Court should order the removal of the fill and the reinstatement of the disturbed area, or whether, and on what terms, the Court should refrain from making that order and allow the fill to remain. In considering the exercise of its discretion, it is appropriate for the Court to take into account, the nature and extent of the fill, the environmental consequences of its being placed on the site, and the motives and purpose of Mr Schiliro for doing so. 8. The nature and extent of the fill was the subject of evidence on behalf of the council from Mr A Colenbrander, a geotechnical engineer in the employ of GHD-Longmac Pty Ltd, and on behalf of Mr Schiliro from Mr G R Wilson, an engineering geologist with Douglas Partners. Although these experts did not agree on the precise dimensions of the fill, nor on the precise amount of the fill (Mr Colenbrander estimated about 500 m3 and Mr Wilson about 780 m3), they agreed that its approximate depth was 2.5 m, that the height of the sandstone retaining wall varied from 1 m to 2 m, and that the fill comprised ripped sandstone and builders' rubble, the latter including bricks, terracotta tiles, pieces of clay, vitrified sewer pipe, wood, reinforcing steel, PVC pipe, plastic, glass and fibro-cement sheeting. Mr Colenbrander was not able to place the source of the fill, but Mr Wilson relied upon Mr Schiliro's assurance that some fill had been taken from excavation works for a building upon the site, and some of it had been imported on to the site from outside sources. They agreed, however, that the fill had not been properly compacted, and both considered that the underlying part of the fill was likely to have a loose consistency. 9. Neither expert observed any evidence of chemical contamination or noxious odours in relation to the fill, but both agreed that fibro-cement sheeting had the potential to be contaminated by asbestos and the absence of contamination would need to be confirmed by laboratory testing. 10. As to the environmental consequences which have occurred or are likely to occur as a consequence of the landfilling and the earthworks, both Mr Colenbrander and Mr Wilson provided their opinions, and evidence was also given by Ms T L Smith, who is a natural resources assistant in the employ of the council. Ms Smith noted the effects and potential effects of the landfilling and earthworks in par 7 and par 8 of her affidavit which were as follows: 7. I observed that the area of cut and fill which has occurred has caused an adverse impact on the natural environment by way of: (a) the destruction of natural vegetation communities; (b) the creation of an extremely large disturbance area; (c) alteration of the natural drainage regime of the [site]; (d) the destruction of the sandstone outcrops. 8. The cut and fill on the [site] , unless removed will: (a) allow weeds to propagate and degrade the [site] and facilitate the spread of weeds into the adjoining national park; (b) create further adverse impacts on the [site] and adjoining bushland by soil erosion and sedimentation; and (c) detrimentally affect the habitat of species of flora and fauna and particularly [certain threatened species]". 11. These are severe impacts indeed, but I am unable to give them a great deal of credence. Ms Smith does not provide any reasoning, explanation or justification, either in par 7 and par 8 or elsewhere in her affidavit, for the bare statements which she makes. She does not, for example, explain how or to what extent the cut and fill has caused "the destruction of natural vegetation communities" , nor does she explain what "sandstone outcrops" have been destroyed, nor how and in what respects the cut and fill will "detrimentally affect the habitat" of various species. Similar difficulties arise respect of the rest of her statements. Although Mr Legg, in his cross-examination of Ms Smith, endeavoured to ascertain the basis for her assertions, she provided no assistance to the Court in that regard. 12. I am prepared to accept, because it stands to reason and was observable on the site inspection, that natural vegetation was removed from the disturbed area by the landfilling and earthworks, but otherwise I place little weight on Ms Smith's evidence, and turn for more helpful evidence as to the environmental consequences of the landfilling and earthworks to the evidence of Mr Colenbrander and Mr Wilson. 13. Mr Colenbrander's opinion was that the failure to properly compact the fill would mean that it would have "significant voids" and that the fill was likely to be "highly permeable" with the consequence that over time sand, silt and clay would be eroded from the fill and transported by stormwater into the natural bushland downhill of the disturbed area. He observed that there had already been erosion of material from the disturbed area through the sandstone wall, that is, stormwater has washed out some of the fine material through the toe of the wall. 14. Mr Wilson observed some "minor" transport of sandy sediment to the rock ledge below the sandstone wall, and, in his opinion, that was likely to have occurred by material flowing over the wall rather than through it. He noted that the disturbed area had not been grassed over, as Mr Schiliro had intended, and Mr Wilson thought that "completion of the grassing would have significantly reduced the observed erosion and deposition of fines downslope of the rock ledges and roadways, noting that overall volumes are even now small". 15. The evidence establishes that there has been, to a greater or lesser extent, erosion from the disturbed area and there is a potential for further erosion and siltation. It is clear that these consequences need to be mitigated. Simply removing the fill without taking other remedial steps is not likely to prevent further environmental harm. As Mr Wilson pointed out, the removal of the fill would be likely to expose significant areas of rock surface which would not provide good substrates for the redevelopment of native vegetation and there is a likelihood of further erosion. Mr Wilson also thought that removal of the fill would be likely to disturb additional natural vegetation, although Mr Colenbrander thought that appropriate controls could be put in place to ensure that such additional disturbance will not occur. 16. The critical issue is the compaction of the fill, which both experts agree is necessary, although they disagree as to the extent of compaction required. Mr Wilson recommended additional reshaping and compaction of the surface of the fill, but Mr Colenbrander stated that surface compact alone is insufficient. What is required, in Mr Colenbrander's opinion, is layered compaction, that is, the removal of the fill and its re-deposition in layers with compaction of each new layer. I am minded to accept Mr Colenbrander's recommendation for layered compaction, because, overall, I found his evidence more reliable than that of Mr Wilson, who conceded that his recommendations were influenced by the cost to Mr Schiliro of remediation. 17. There is no doubt that more than compaction is required. Mr Wilson recommended the provision of temporary silt fencing and hay bales, the placement of additional clean topsoil as a base for new grassing, and the grassing and planting of the disturbed area. Ms Smith recommended the making of a restoration plan by a bush regeneration consultant, and she outlined the components of such a plan, but, since her recommendation was no doubt influenced by the environmental consequences which I think she has overstated, I do not accept that so rigorous a regime is required. 18. Mr Wilson also recommended the provision of a lined drain section across the disturbed area to carry runoff from upslope to the natural gully line below the rock ledge, but Mr Colenbrander recommended that the impact of the concentration of flow by such a drain must be assessed before it is adopted. 19. However, before any of these steps can be taken, it will be necessary, as both experts agreed, to test the fill for contamination. Mr Schiliro tendered letters to indicate that the source of the imported fill was from North Shore Cement and Sand Pty Ltd and Tony Falvo's Earthmoving, but the absence of contamination has not been confirmed, and, having regard to the presence of fibro-cement sheeting, I consider that testing for contamination must be undertaken as a first step in any remediation. 20. Mr Schiliro gave evidence. He presented four reasons why he had carried out the landfilling and earthworks. First, he wanted to provide some greenery amongst the otherwise too rocky landscape. Secondly, he wanted to provide a place for walking. Thirdly, he hoped that it would provide a preventative measure against the spread of bushfire. And, lastly, he hoped to provide an area for himself and his family which would be free of snakes. He was also motivated by other considerations. Over the 16 years in which he has lived at the site, he had, he said, successfully carried out similar works, that is, placing fill of rocks and clay, compacting it with machines, and planting turf. Furthermore, he believed that no approval was required for the placement of fill to a depth of 30 cm, and this understanding was derived, he said, from what he had been told by a council officer. In any event, he felt that, obtaining council approval would take years. 21. Some of these matters might well provide good reasons for landscaping some of the site, but they do not, in my opinion, provide any excuse for the failure to obtain development consent. Even on Mr Schiliro's erroneous understanding of the limit of 30 cm, development consent would have been required because that limit was well exceeded. 22. Taking into account all these matters, I conclude that the Court should not order the removal of the fill from the site, but instead should make orders requiring remediation of the disturbed area. Conclusion 23. In accordance with the foregoing, I conclude as follows: (1) The council is entitled to the two declarations which it seeks, that is, in brief, a declaration that the Mr Schiliro has failed to comply with the s 121B order in breach of the EP&A Act; and that he has carried out landfilling and earthworks on the site without first obtaining development consent and is thus in breach of the EP&A Act. (2) The council is also entitled to two further orders which it seeks, namely, an order that Mr Schiliro be restrained from carrying out any further landfilling and earthworks on the site, and also an order that, within 14 days, Mr Schiliro install siltation and sediment controls to prevent any silt or sediment from leaving the disturbed area. (3) The final consequential order should provide that Mr Schiliro must at his own cost and expense: (a) arrange for the testing of the fill for contamination; (b) if the fill is not contaminated, remediate the disturbed area by: (i) layered compaction of the fill, with the provision of appropriate measures to prevent damage to any natural vegetation on the site; (ii) placement of clean topsoil as a base for grassing of the disturbed area; (iii) the grassing and planting of the disturbed area; and (iv) the satisfactory design, assessment and installation of a lined drain section across the disturbed area to carry runoff from the disturbed area. (c) if the fill is found to be contaminated, remove the fill and restore and revegetate the disturbed area. 24. I have set out the final consequential order in outline only, and consideration needs to be given to the precise details of such order. In particular, such order should reflect the controls regarding landfill and earthworks set out in Pittwater Development Control Plan No 11. 25. I direct the parties to bring in, within 14 days, short minutes to give effect to the orders which I propose in accordance with this judgment. I also grant liberty to apply on two days' notice. 26. No submissions were made as to costs. I direct the parties to file any written submissions as to costs within 14 days. 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.