Land and Environment Court of New South Wales CITATION : Ryde City Council v Sedaca and Anor [2001] NSWLEC 131 APPLICANT Ryde City Council PARTIES : RESPONDENTS Sedaca and Anor FILE NUMBER(S) : 40167 of 2000 CORAM: Pearlman J KEY ISSUES: Injunctions and Declarations :- development without consent - removal of vegetation - placement of fill LEGISLATION CITED: Ryde Planning Scheme Ordinance Sydney Regional Environmental Plan No 22 - Parramatta River CASES CITED: DATES OF HEARING: 14/05/2001 EX TEMPORE JUDGMENT DATE : 05/14/2001 APPLICANT Mr D R Parry (Barrister) SOLICITORS Hill Thomson & Sullivan LEGAL REPRESENTATIVES: RESPONDENTS in person SOLICITORS N/A JUDGMENT: IN THE LAND AND 40167 of 2000 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 14 May 2001 RYDE CITY COUNCIL Applicant v OTELLO PETER SEDACA First Respondent MARY ELIZABETH SEDACA Second Respondent JUDGMENT 1. This is an application by Ryde City Council ("the council") for a number of orders in connection with a property known as 100 Lancaster Avenue, Melrose Park ("the land"). The orders sought by the council are as follows: 1. A declaration that the first and second respondents by themselves, their servants or agents carried out development or caused, permitted or suffered the carrying out of development upon the land being lot 50 DP 15965 known as 100 Lancaster Avenue, Melrose Park and on adjoining public land forming part of the Parramatta River for the purposes of clearing vegetation, removal of soil, placing or tipping of fill and the disposal of waste material including soil without development consent contrary to the Environmental Planning and Assessment Act 1979. 2. An order that the first and second respondents by themselves, their servants or agents be restrained from carrying out the unauthorised development without obtaining development consent. 3. An order that within 60 days of the date of these orders the first and second respondents remove from the land all fill and other material which has been placed on the land without development consent to a place where such fill and material may be lawfully placed and evidence be furnished to the applicant of compliance with this order. 4. An order that within 90 days of the date of these orders the first and second respondents re-grade the land to re-establish the surface contours and soil and material that existed prior to the unauthorised development. 5. An order that within 120 days of the date of these orders the first and second respondents revegetate the land in accordance with the revegetation plan prepared by an appropriately qualified expert to the satisfaction of the applicant and that the first and second respondents maintain the vegetation in accordance with the plan for five years. 6. An order that the first and second respondents have in place appropriate sedimentation control devices to prevent pollution of the Parramatta River during the carrying out of the work referred to in orders 3, 4 and 5. Of these orders, those numbered 3, 4 and 5 are significant. I note also that the council seeks its costs. 2. The evidence establishes, and it is admitted by the respondents, that vegetation has been cleared and fill placed on the land. Indeed, council inspections and the photographs that have been shown to the Court show what has happened on the land. 3. There are a number of affidavits by Mr C I Redfern, who is an environmental health officer with the council, which show that there has been the placing of fill on the land and the removal of some mangrove vegetation. There is an affidavit sworn by Mr G Noble, who is a property officer employed by the Waterways Authority, to which pictures of the land are attached. There is evidence from a neighbour, Mr S Lynch. There is evidence from Dr P A Hutchings, who is a zoologist, about the environmental damage caused by the placing of fill on the land. 4. Mr Parry submitted that Dr Hutchings' evidence is compelling. In par 9 of her affidavit Dr Hutchings stated: The placing of fill on the property has effectively completely smothered the salt marsh and the majority of the original zone of mangroves. Any mangrove trees towards low water mark have been physically cut down and the seepage from the land fill would tend to smother any new seedlings and prevent their germination effectively preventing recolonisation of the lower unfilled levels of the land adjoining the property … Recolonisation of the filled areas will not occur unless all the fill is removed … and the property is once more subjected to tidal flushing … Dr Hutchings' evidence also goes to show the significant environmental value of the mangrove community in this vicinity. 5. The land is partly zoned Residential 2A under the Ryde Planning Scheme Ordinance but part of the land towards the Parramatta River is subject to a reservation for county open space. The land is also subject to controls imposed by Sydney Regional Environmental Plan No 22 - Parramatta River. Clause 9 of that regional plan shows that the land or part of the land has been reserved for the purposes of foreshore open space and the regional plan also shows, by virtue of the maps attached to it, particularly map 7, that there were existing mangroves partly on and adjacent to the land. 6. There is evidence that the respondents have made an application to the Department of Urban Affairs and Planning for the acquisition of the land by that Department. It has notified them that it is prepared to enter into negotiations. However the present position is clearly this; the clearing of land and the placing of fill upon land zoned Residential 2A and upon the land reserved as county open space required development consent. It may even have been prohibited. In any event, no development consent was obtained by the respondents, and the work, that is the removal of vegetation and the clearing and the placing of the fill, has been carried out. 7. No countervailing evidence has been put forward to the Court by the respondents who have today acted for themselves, in that Mr Sedaca has appeared on behalf of himself and his wife Mrs Sedaca. They have explained their circumstances. In particular, I note their explanation (which appears in the affidavits which they have filed and in particular in the correspondence which they tendered), which is that they have been extremely concerned about the amount of rubbish and garbage which is taken on to their land by the ebb and flow of the Parramatta River. A video was shown which depicted syringes, bottles and other rubbish. 8. The respondents have tendered documents from their insurance company which states that a special condition of their policy is as follows: Liability cover is not extended to the land zoned county open space located at the rear of 100 Lancaster Avenue West Ryde. 9. In those circumstances the respondents went to the council and endeavoured to file a development application. From the bar table Mr Sedaca has said that he was unable to do so. The council officer would not accept their application in the form that it was in. Advice was given to Mr Sedaca at the council, according to his submission, that the council would not be likely to grant consent to the filling and fencing of the land in the manner that he wished to do. In those circumstances, concerned about their liability for an accident which might occur on the land, Mr and Mrs Sedaca took the remedy into their own hands and proceeded to carry out the works I have described. 10. I have expressed some concern in this hearing about the circumstances. I can understand that Mr and Mrs Sedaca have a fear of liability for damage but the laws of this State are to be observed. They are to be observed in the interests not only of the council, but in the interests of the whole of the public, and the council has a duty to enforce those laws. If fill was to be placed on the land it required development consent and none was obtained. No doubt there were other steps that Mr Sedaca and Mrs Sedaca could have taken. Mr Parry submitted that they could at a much earlier date have endeavoured to have the county open space land acquired by the Department but that step was not taken by them until very belatedly and in the meantime they placed the fill on the land. 11. The orders which the Council seek are significant as I have said. They require considerable work and considerable expense but the Council has proved that the work that has been done has caused, and is causing, environmental damage. I have no evidence to the contrary and I can do nothing but accept the council's case. I endeavoured to explore with the council and the respondents whether there was some middle ground but those explorations have come to nothing. I have no alternative but to make the orders which are sought. 12. The orders that I make are orders one, two, three, four, five and six in the further amended application class 4. 13. The council seeks its costs, including the costs of an application at which interlocutory orders were made on 8 December 2000. Have you anything to say in relation to an order of costs against you? 14. RESPONDENT: No, your decision your Honour I got accept, I should accept it. 15. HER HONOUR: All right. I order that the respondents pay the costs of the council including the costs of the application on 8 December 2000 as agreed or as assessed. The exhibits may be returned. 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.