Reported Decision : (2002) 123 LGERA 118 New South Wales Court of Appeal CITATION : Azzopardi & Ors v Gosford City Council & Anor [2002] NSWCA 234 FILE NUMBER(S) : CA 40070/02 HEARING DATE(S) : 12 June 2002, 13 June 2002 JUDGMENT DATE : 19 July 2002 Victor Azzopardi and Ors PARTIES : v Gosford City Council and Parit Pty Ltd JUDGMENT OF : Handley JA at 1; Davies AJA at 34; Foster AJA at 45 LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT LEC 40093/00 FILE NUMBER(S) : LOWER COURT Sheahan J JUDICIAL OFFICER : Appellants - T S Hale SC/ J F Kildea COUNSEL : Respondent 1 - M C Fraser Respondent 2 - P C Tomasetti Appellants - Thompson Norrie, Maitland SOLICITORS : Respondent 1 - P J Donnellan & Co, Gosford Respondent 2 - G J Halpin, Miranda CATCHWORDS : RIVERS AND FORESHORES IMPROVEMENT ACT (NSW) 1948 - PROTECTED LAND - RIVER - EXCAVATION - DEVELOPMENT CONSENT LEGISLATION CITED : Environmental Planning and Assessment Act (NSW) 1979 Rivers and Foreshores Improvement Act (NSW) 1948 Jones v Dunkel (1959) 101 CLR 298 New South Wales Associated Blue Metal Quarries Ltd v Commissioner of Taxation (1956) 94 CLR 509 CASES CITED: Hope v Bathurst City Council (1980) 144 CLR 1 Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 DECISION : Appeal dismissed with costs IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40070/02 LEC 40093/00 HANDLEY JA DAVIES AJA FOSTER AJA 19 July 2002 Victor AZZOPARDI & Ors v GOSFORD CITY COUNCIL & Anor RIVERS AND FORESHORES IMPROVEMENT ACT (NSW) 1948 – PROTECTED LAND – RIVER – EXCAVATION – DEVELOPMENT CONSENT The respondent Council granted a development consent which was challenged by the appellants in Class 4 proceedings in the Land and Environment Court on the ground that the procedures required for integrated development had not been followed. Under s 22B(1) of the Rivers and Foreshores Improvement Act (NSW) 1948 the excavation of and the removal of material from protected land were prohibited without a permit. Section 22A of the Act defined protected land as land within 40 metres from the top of the bank or shore of protected waters. The definition of protected waters included a river. Sheahan J dismissed the appellants' proceedings and they appealed. This appeal focused on two issues: whether a water course on the developer's land was a river and whether the approved development involved excavation. HELD: per Handley JA and Foster AJA: The appellants had not established that the watercourse on the developer's land was a river within the meaning of the 1948 Act and the appeal therefore failed although the development did involve some minor excavation which could not be regarded as inconsequential. In any event the Court should as a matter of discretion refuse the appellants any relief. Per Davies AJA: The watercourse was a river as defined but the appeal failed because the work carried out on the land was minor and did not constitute excavation notwithstanding that there was disturbance of the soil. ORDERS Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40070/02 LEC 40093/00 HANDLEY JA DAVIES AJA FOSTER AJA 19 July 2002 Victor AZZOPARDI & Ors v GOSFORD CITY COUNCIL & Anor Judgment 1 Handley JA: The appellants have appealed from the dismissal of their Class 4 proceedings in the Land and Environment Court which challenged the validity of a development consent granted by the Gosford City Council (the Council) to Parit Pty Limited (the Company). The appellants and the Company own adjoining land in Peats Ridge. The appellants use their land for growing vegetables and raising chickens for meat production. The Company produces and bottles mineral water. 2 The relevant development application lodged in October 1999 sought approval for the construction of a warehouse and ancillary works at the Company's existing water bottling plant. An objection was lodged on behalf of the appellants but on 13 March 2000 the Council granted consent subject to conditions. On 27 June the appellants commenced these proceedings, but did not seek interlocutory relief. The Council issued a construction certificate on 3 July and the Company proceeded to carry out and complete the development work. 3 The appellants claimed that the development was "integrated" for the purposes of Division 5 of Part 4 of the Environmental Planning and Assessment Act (EPA Act), inserted by Act No 152 of 1997 which came into force on 1 July 1998. The development application was not expressed to be for integrated development, and the Council did not treat it as an application of that kind. The appellants claimed that non compliance with Division 5 invalidated the consent. 4 The development was said to be integrated because a permit under Part 3A of the Rivers and Foreshores Improvement Act 1948 (the "Rivers Act") was required for the development to be carried out lawfully (EPA Act s 91(1)). It was common ground that this would be the case if such a permit were required. 5 Part 3A of the Rivers Act was inserted by Act No 90 of 1991. Section 22B(1) prohibits excavation and the removal of material from protected land without a permit under that Part. Section 22A relevantly defined protected land as land not more than 40 metres from the top of the bank or shore of protected waters. The latter expression includes a river which is given an inclusive definition in s 2 which so far as relevant provides: "River includes any stream of water, whether perennial or intermittent, flowing in a natural channel, or in a natural channel artificially improved, or in an artificial channel which has changed the course of the stream of water …". 6 In a reserved judgment delivered on 14 December 2001 Sheahan J held the land in question was not protected land because there was no river nearby, and in any event the development did not involve excavation within 40 m of what was said to be a river. 7 The objection lodged on behalf of the appellants to the Company's development application caused the Council to refer it to the Department of Land and Water Conservation, which acted on behalf of the Ministerial Corporation, the body responsible for granting permits under Part 3A of the Rivers Act. 8 On 8 November Mr Voisey, the Engineer in charge of the Department's office in Gosford, sent a memo to Mr Gray, the Council's Planning Officer stating: "In reference to our conversation 8/11 the attached DA is not integrated under the [Rivers] Act" (1/176). 9 After consent was granted, the Department wrote to the Company on 31 May 2000 (1/212), referring to the development consent: "Please be advised that Gosford City Council planners requested the department's advice as to whether the above proposal would be 'Integrated' under the Rivers and Foreshores Improvement Act 1948. After consultation with the Department's Legal Branch – Manager Legislation, and on the basis of the plans furnished by you to Gosford City Council, they were advised that the above proposal was not an 'Integrated Development' as it did not propose 'excavation' within the zone defined as protected lands under the Act". 10 The Judge found that the watercourse on the Company's land was a swampy creek without the defined banks and bed which he considered were necessary physical attributes of a river as defined. 11 The appellants submitted that the Topographic Map of Mangrove produced by the Land Information Centre of the Department of Lands 1982 showed that the watercourse running through the Company's land into the land of the appellants was a river for the purposes of the Rivers Act. The map shows the watercourse running into a dam on the Company's property, then to a dam on the appellants' property and thence in a southerly direction. Over this distance the watercourse, according to the Interpretation Table, is "intermittent". The map by itself cannot establish the existence of a river as defined. The Department probably decided that the development was not integrated from an inspection of this map or its equivalent, as there is no suggestion that an officer from the Department inspected the site. 12 The relevant oral evidence was that of Mr Michael Azzopardi and Mr Bratby, a Consulting Engineer retained by the appellants. The Company called no evidence and successfully resisted an application by the appellants to the Land and Environment Court for an order permitting them to enter and inspect the watercourse on the Company's land. 13 A substantial earth dam has been constructed across the watercourse on the Company's property, and there are now two substantial dams lower down within the appellants' property. The statement of environmental effects submitted with the development application stated (26) that the dam on the Company's property was spring fed. Mr Azzopardi said that except in extremely dry conditions a running stream discharged from the dams on his property (Blue 1/1-3). He last walked along the watercourse from his property to the dam on the Company's property about 9 years earlier (Black 121). He described this part of the watercourse as a "swampy creek … there's reeds growing in it … there's ducks living in it … and there's water running in it" (121). He entered the Company's property in 1999 at the invitation of Mr Pace, but he only inspected the area near the Company's factory where its dam is located. He said he stood on the bank of the creek on this occasion (112-15), but the creek at this point was the Company's dam, and the bank had been created when the dam was enlarged in 1995. This is apparent from photographs (2/380). The existence of a man-made bank on the side of an earth dam does not tend to establish that the watercourse above or below the dam flowed in a defined channel between banks. 14 Mr Bratby, the engineer retained by the appellants, inspected their property only once (40) for about half an hour (41). He went to the upper of the two dams on the property and looked upstream along the line of the watercourse (43-4). The distance between the boundary and the dam was about 10 m (44). He said that a deep drain had been constructed close to the western boundary of the appellants' land "to collect run-off from the Azzopardis' property and direct it to the dam prior to it being able to run onto the adjoining property" (45). The drain therefore diminished the normal flow along the natural watercourse at the bottom of the depression on the Company's land. Photographs showed water flowing strongly along this drain (2/353-7, 360-2). The evidence did not establish when it was constructed. 15 Mr Bratby agreed that the watercourse in the Company's land could "equally" be described as a drainage depression (46, 70). He had not consulted rainfall records for the period immediately before his inspection (50). 16 Photographs (75) showed the watercourse between the two dams on the Azzopardis' land after the flow had been augmented by the water from the drain. The flow at this point in what might possibly be regarded as a channel between banks cannot establish anything relevant to the position some 500 m upstream from the first dam on the Azzopardis' property (scaled off the Topographic Map). 17 Mr Hale SC submitted that the Judge's finding that the watercourse above the dam on the Company's property was not a river for the purposes of the Rivers Act was contrary to the evidence, when it was weighed in accordance with the principles in Jones v Dunkel (1959) 101 CLR 298, and the finding should be reversed. He also submitted that the Judge misdirected himself because the definition of "river" in the Act did not incorporate "defined banks and bed". Although this is literally the case, the definition refers to "any stream of water .. flowing in a natural channel", which would involve both defined banks and a bed. Moreover the definition of "protected land" in s 22A includes "land that is the bank … or bed of protected waters", and "land that is not more than 40 metres from the top of the bank … of protected waters". His Honour therefore did not misdirect himself in the manner suggested. Moreover the principles in Jones v Dunkel do not apply in this case because in my judgment the appellants did not establish a prima facie case that there was a river on the relevant part of the Company's property. 18 The appellants' evidence, at the highest, did no more than establish the existence of a natural watercourse which could be described as a drainage depression or a swampy creek. 19 A permit was granted to the Company under Part 3A of the Rivers Act on 19 July 2000 (2/374) after proceedings had been commenced but this cannot establish a prima facie case either. The Company appears to have applied for it as a matter of prudence to protect itself in the pending litigation. There is no suggestion that Department officers inspected the property. The issue of the permit only proves that the Department was not concerned about the proposed work. The appeal therefore fails on the river issue. 20 The excavation issue, which was also decided adversely to the appellants, turns on the interpretation of the plans submitted with the development application and the detailed engineering plans submitted with the application for a construction certificate. There was no direct evidence as to the extent of the physical work actually carried out. The work that is relevant is that proposed to be carried out within 40 m from the top of the bank of the dam. This included the placing of a gabion at the existing stormwater outlet in the dam (31-3), and road drainage on the access road between the bottling plant and the dam (30, 43). This was disclosed in the development application but precise details were not provided. 21 The Council imposed conditions on the consent for the installation of a nutrient control tank to trap oil and silt from the run-off in the drains from the road and the car park, and for the erection of a silt control fence to deal with any surface run-off. It also required detailed engineering plans to be submitted. 22 Sheahan J said of the plans submitted with the development application: "… these plans do not disclose the need for, nor any then current proposal for, any excavation works in respect of the 'proposed' concrete truck access road near the relevant dam on the [Company's] property". 23 Mr Bratby based his evidence to the contrary on the same plans, and Mr Hale submitted that the Judge should not have attempted to interpret the plans himself but should have relied on the only expert evidence, that given by Mr Bratby. Mr Tomasetti, who appeared for the Company, guided this Court through the plans and the Court had no difficulty in following his analysis. I do not accept the submission that judges are not capable of understanding these plans without the benefit of expert evidence. 24 The plans submitted with the development application disclosed a proposal for concreting the existing access road leading to the proposed car park (173), and that this would involve the construction of drainage lines and sumps within 40 m of the dam (174). This work would normally involve excavation. The geo-technical report (58) showed that the existing road surface would be used as sub-base, and that the new concrete pavement would raise the height of the surface by 250 to 270 mm (61). It also disclosed that "subsoil drainage should be installed to a depth preferably not less than 600 mm along both sides of roads" (61). The side elevation for the installation of the gabion (32) showed that some minor excavation was proposed for a toewall but it was inconsequential. 25 The application for the construction certificate lodged on 5 May 2000 (272) was accompanied by the detailed engineering plans. Nine new plans were involved but only three are directly relevant. The stormwater drainage plan dated 29 November 1999 (263, 273) is based on the undated plan (21) submitted with the development application. There were also the driveway and erosion control plan (264) and the plan for various construction works (265). 26 Mr Tomasetti demonstrated to my satisfaction from the detailed plans (263, 273) that drainage pits 600 mm or less in depth (263, 273) in the 40 m zone could be constructed within the increase of 800 to 1,000 mm in the height of the road surface which was proposed without any need for excavation below the existing surface. However pits Nos. 15 and 16 within the zone had depths of 1,000 and 1,200 mm respectively and one of these would and the other could have required excavation. 27 The details on the plan at 265 for the installation of the gabion at the stormwater outfall show that some excavation may have been required. The discharge pipe already existed (380), and it seems that the pipe head wall did also (32, 263, 265) because a permit was not sought for its construction (374). The side elevation (265) indicates excavation for a rock fill base to a depth of 225 mm, but it is possible that this could have been provided by resting a second or a larger gabion on the existing surface. 28 The oil and silt arrestor pit to house the nutrient control tank did involve excavation (257-263), as did the siltation control fence which required the toe of the filter fabric to be buried in a trench 1 cm wide and 2 cms deep and back filled (265). This work was not proposed in the development application but was required by the Council as conditions of its consent and it cannot convert what was initially ordinary development into integrated development. The Judge correctly found that the excavation for the silt fencing was inconsequential. 29 A close study of the development application and accompanying documents shows that the development would probably involve excavation for road drainage purposes to a depth of up to 350 mm, and might also involve some modest excavation for the gabion. The latter might fairly be regarded as inconsequential, but this cannot be said of the excavation for the drainage of the road, although even that is minor. 30 Section 22B of the Rivers Act, and the relevant definitions in s 22A, do not provide any legal justification for ignoring minor excavation which is more than inconsequential or the temporary removal of modest quantities of material which is later to be backfilled. Such a result could be achieved, if that was desired, by regulations of the kind contemplated by s 22B(1). 31 Section 91 of the EPA Act, so far as relevant in this case, provides that: "Integrated development is development … that, in order for it to be carried out, requires development consent" and a permit under Part 3A of the Rivers Act. See also s 78A(1). In my judgment the development application in this case, together with the supporting documents, did seek consent for development that included the excavation and temporary removal of material in the course of providing the subsoil drainage for the access road. Thus the development would have been integrated if the dam on the Company's property had been part of a river as defined in the Rivers Act. However, since I have concluded that this is not the case the appeal fails. 32 The Judge said that if a breach of s 91 of the EPA Act had been established he would have exercised his discretion to refuse relief. In the circumstances of this case this would have been an entirely appropriate exercise of the judicial discretion conferred by s 124(1). Any breach would have been technical only because the Ministerial Corporation had been consulted by the Council at the outset, and had later granted a permit. Mr Bratby agreed that the work within the 40 m area had been properly designed in accordance with sound engineering and environmental practice. It had already been finished and there was no continuing environmental harm (Black 68-9). If demolition were ordered, the effective result would have been to require the Company to do the same work all over again. 33 The appeal should be dismissed with costs. 34 DAVIES AJA: I prefer the view that the watercourse on the land of the second respondent, Parit Pty Ltd ("Pace") was part of the river system, the Mooney Mooney Creek, to which the Rivers and Foreshores Improvement Act 1948 ("the Rivers Act") applied. 35 The factors which influence me to this view are: the tributary, which flows into the Mooney Mooney Creek is marked on the relevant contour map as flowing through Pace's property and as rising to the north thereof; photographs show a tree line both on Pace's land and to the north of it consistent with the existence of a watercourse; the dam, towards the northern end of the property, has been described as spring fed; whether the spring rises at the dam or to the north of it, the spring is likely to be the commencement of the stream; the stream was inspected by the appellant some years before and was described as a "swampy creek" with water running in it; the photographs of the stream which are in evidence show running water and, although the photographs were taken on the appellant's land, they were tendered as relevant evidence. The allegation in the appellant's points of claim that the watercourse flowed through Pace's property was admitted by both respondents in their points of defence. 36 My impression is that the watercourse on Pace's land is recognized to be a tributary of the Mooney Mooney Creek and that the reason why a permit from the Ministerial Corporation, the body administering the Rivers and Foreshores Improvement Act 1948 ("the Rivers Act"), was not sought in the first instance was that Pace's advisors considered that no relevant "excavation" would occur. The Gosford Council in fact referred the application to the Ministerial Corporation because of the possibility that a permit from that Corporation may have been required. The Corporation advised that the proposal was not an "Integrated Development", as it did not propose "excavation". After the Gosford Council imposed a condition that a nutrient control tank be installed, Pace applied for a permit under Part 3A of the Rivers Act for the installation of that nutrient tank and for the other works which had been or were to be carried out. A permit was granted describing the watercourse as "Unnamed tributary of Mooney Mooney Ck". 37 It should also be noted that neither of the respondents called evidence to contradict the assertion that the watercourse on Pace's land was a stream forming part of the Mooney Mooney Creek system. It was not in dispute that the Mooney Mooney Creek was a "river" for the purposes of the Rivers Act. 38 I agree with the following findings of the trial Judge: "Both the Azzopardi and Pace lands are traversed by an unnamed watercourse, which has its source in land to the north of the Pace land, flows generally in a southerly direction through the Pace land on to the Azzopardi land, and ultimately into a creek forming the headwaters of Mooney Mooney Creek, a tributary of the Hawkesbury River. The watercourse carries running water on a perennial basis, except in extremely dry conditions. A dam was constructed to 'form part of the unnamed watercourse' on the Pace land, and there are relevantly also two dams on the Azzopardi land." I do not agree with his Honour's finding that the watercourse was not encompassed by the definition of "river" in the Rivers Act. 39 Section 2 of the Rivers Act defines "River" as, inter alia: " River includes any stream of water, whether perennial or intermittent, flowing in a natural channel, or in a natural channel artificially improved, or in an artificial channel which has changed the course of the stream of water and any affluent, confluent, branch, or other stream into or from which the river flows…. ". 40 In my opinion, the evidence establishes that the subject stream commences at the spring which feeds the dam on Pace's land. The dam, being placed on the stream, forms part of the stream which flows over a defined bed into the Mooney Mooney Creek and is part of that river. There is a clear watercourse and a stream. The expressions used in the definition of "river" are expansive and should not be read narrowly. The Rivers Act seeks the protection and improvement of river systems. The object of Part 3A of the Rivers Act is to ensure that excavations and other acts do not obstruct or detrimentally affect the flow of protected waters or be likely to do so. See s22B. Excavations taking place close to a stream that forms part of a river would have the potential to do so. 41 The works that may have constituted excavation are described by Handley JA in his reasons, which I have had the advantage of reading. When the original plans were lodged with the Council, they were referred to the Ministerial Corporation but the Corporation advised that the proposal was not an "Integrated Development". A letter from the Ministerial Corporation to Pace discloses that: "After consultation with the department's Legal Branch – Manager Legislation, and on the basis of the plans furnished by you to Gosford City Council, they were advised that the above proposal was not an 'Integrated Development' as it did not propose 'excavation' within the zone defined as protected lands under the Act." I read that statement as indicating the Corporation's view that the work as shown in the plans forwarded to it by the Council were not of sufficient significance to constitute "excavation" for the purposes of the Rivers Act. The statement referred to the plans lodged with Council, place the term "excavation" in inverted commas and mentioned the reference to the Legal Branch. There is no discussion of the issue of "river". 42 The works perceived to be required were indeed minor. The term "excavation" is an ordinary word of the English language and its meaning is a question of fact. So also is the question whether particular circumstances are encompassed by the term, provided that it is reasonably open to hold that they do. See New South Wales Associated Blue Metal Quarries Ltd v Commissioner of Taxation (1956) 94 CLR 509 at 512; Hope v Bathurst City Council (1980) 144 CLR 1 at 8; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 288. The Ministerial Corporation was entitled to consider that very minor works did not relevantly constitute "excavation", notwithstanding that they involved disturbance to the soil. Later, when a permit was sought, the Ministerial Corporation granted that permit. 43 Insofar as there was a breach of Part 3A of the Rivers Act and thereby of the Environmental Planning and Assessment Act 1979, the breach was one in respect of which the trial Judge said that he would have exercised his discretion to refuse relief. I agree with Handley JA that "this would have been an entirely appropriate exercise of the judicial discretion conferred by s124(1)". The matters which were the subject of the appellant's complaint were trivial. The works on Pace's land were carried out in good faith. It has not been shown that there was any harm to or risk of harm to the environment. 44 I agree with the orders proposed by Handley JA. 45 FOSTER AJA: I agree with Handley JA. ****** 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.