Land and Environment Court New South Wales Medium Neutral Citation: Blacktown City Council v Saker (No 2) [2018] NSWLEC 71 Hearing dates: 28 February and 15 March 2018 Date of orders: 10 May 2018 Decision date: 10 May 2018 Jurisdiction: Class 4 Before: Molesworth AJ Decision: See orders at [126]-[127] Catchwords: CIVIL ENFORCEMENT - action to restrain unlawful depositing of fill material and earthworks, and to require their removal and remediation of site - such development prohibited or permissible only with development consent which had not been obtained – orders under the then s 121B of the Environmental Planning and Assessment Act 1979 to cease development – failure to comply with orders – matter heard ex parte – respondent an undischarged bankrupt – declaratory and injunctive relief sought – relief granted – indemnity costs ordered Legislation Cited: Blacktown Local Environmental Plan 2015 Environmental Planning and Assessment Act 1979 ss 76B (now 4.3), 121B, 124 (now 9.46) Bankruptcy Act 1966 (Cth) ss 58, 82 Cases Cited: Adams v Fairfield City Council [2010] NSWLEC 81 Ainger v Coffs Harbour City Council (No 2) [2007] NSWCA 212 Blacktown City Council v Saker and Ors [2017] NSWLEC 46 Canterbury City Council v RTA (No 2) [2004] NSWLEC 536 Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56 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 Horseshoe Pastoral Co Pty Ltd v Murray Smith trading as South Coast Tile and Slate Co [1995] NSWCA 200 Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114 Liverpool City Council v Tirnova [2017] NSWLEC 138 Marshall Rural Pty Ltd v Basscave Pty Ltd (No 3) [2018] NSWLEC 62 Maule v Liporoni (No 2) [2002] NSWLEC 140 Ostrowski v Palmer (2004) 218 CLR 493, [2004] HCA 30 Rosniak v Government Insurance Office (1997) 41 NSWLR 608 Ross v Lane Cove Council [2014] NSWCA 50; (2014) 86 NSWLR 34 Wilkie v Blacktown City Council [2002] NSWCA 284 Category: Principal judgment Parties: Blacktown City Council (Applicant) Jason Gabriel Saker (First Respondent) Sam Saker (Second Respondent) State of New South Wales (Fourth Respondent) Representation: Counsel: Mr Christopher Norton (Applicant) No appearance (First Respondent) Submitting appearance (Second Respondent) Submitting appearance (Fourth Respondent) Solicitors: Lindsay Taylor Lawyers (Applicant) N/A (First Respondent) Oxford Legal (Second respondent) Crown Solicitor (Fourth Respondent) File Number(s): 2017/87722 Judgment Overview 1. Mr Jason Saker (the Respondent) is the occupier and former joint proprietor of land known as 50 Shane Park Road, Shanes Park New South Wales (Lot 134 in DP 32148) (the Land). 2. The Land is located in the Blacktown Local Government Area and is zoned RU4 Primary Production Small Lots under the Blacktown Local Environmental Plan 2015 (Blacktown LEP). It is bounded to the north by a creek known as South Creek and is traversed by a small tributary known as "Stoney Creek". 3. Blacktown City Council (the Applicant Council) alleged that from late 2016 to March 2017, the Respondent caused or permitted the Land to be used for the receipt of fill material (including building waste, soil, rocks and other material) and earthworks (the Works). 4. This, the Applicant Council submitted, is contrary to the Blacktown LEP and the then s 76B (now s 4.3) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). As such, the Applicant Council sought declaratory and injunctive relief, and orders under the then s 124 (now s 9.46) of the EPA Act relating to the preparation and execution of a remediation plan. 5. I am satisfied that the Applicant Council has made out its case in all respects and, for the reasons set out below, I should make all of the orders sought. Procedural history 1. On 22 December 2016, following a complaint from a member of the public and initial investigations (described below at [51]-[54]), the Applicant Council issued an order under s 121B of the EPA Act, ordering the Respondent to: 1. immediately cease the carrying out of unapproved earthworks, including filling and levelling the Land; and 2. within 60 days of the date of the order, restore the Land to its approved status before the work was carried out by removing all fill material and returning the Land to its natural ground level. 1. The Applicant Council, alleging that The Respondent did not comply with the above orders, on 1 March 2017 issued a further, emergency order under s 121B of the EPA Act ordering The Respondent to: 1. immediately cease carrying out unauthorised earthworks, including filling and levelling the Land; 2. within 14 days of the date of the order, remove all fill material from the Land; 3. within 14 days of the date of the order, provide the Council with receipts and documentation as to the lawful disposal of the fill material from the Land; and 4. within 14 days of the date of the order, restore the Land to its natural level before the Works were carried out. 1. These orders were preceded, on 17 and 21 November 2016, by two Notices of Intent to Give an Order under s 121B of the EPA Act. 2. On 22 March 2017 the Applicant Council applied to the Court seeking: 1. a declaration that The Respondent carried out or permitted to be carried out development on the Land, being the use of the Land to receive fill consisting of building waste, soil, rocks and other material and undertaking of earthworks involving the spreading of the fill material, such development that was on land zoned RU4 Primary Production Small Lots, being prohibited by virtue of the Blacktown LEP, such prohibited development being undertaken contrary to s 76B of the EPA Act; 2. as interlocutory relief, an order that, until further notice, The Respondent, his servants, agents and invitees be restrained from receiving fill on the Land or undertaking earthworks involving the spread of fill on the Land; 3. an order pursuant to s 124 of the EPA Act that the Respondent, by himself, his servants or agents be restrained from using the Land to receive fill material, and carrying out works being earthworks involved in the spreading of fill on land zoned RU4 Primary Production Small Lots; 4. an order, pursuant to s 124 of the EPA Act, that the Respondent, within 14 days of the date of the order, engage a suitably qualified person to prepare a Waste Removal and Remediation Plan setting out the nature of the impacts caused by the importing, depositing and spreading of fill material onto the Land and a plan to remove the imported fill material and remediate the Land to the condition of the Land prior to the importing and spreading of the fill material; 5. an order, pursuant to s 124 of the EPA Act, that the Respondent within 42 days of the date of the order provide the remediation plan to the Applicant Council for approval; 6. an order pursuant to s 124 of the EPA Act that the Respondent within 7 days of the approval of the remediation plan by the Applicant Council engage a suitably qualified person to undertake remediation works in accordance with the approved remediation plan; 7. an order, pursuant to s 124 of the EPA Act, that the Respondent: 1. remove from the Land all fill material imported to the site; 2. remediate the Land in accordance with the remediation plan; 3. cause the fill material to be transferred to a place that can lawfully receive that material for disposal within 90 days of the approval date. 1. an order, pursuant to s 124 of the Act, that the Respondent: 1. procure a receipt in relation to each consignment of the fill material transported from the Land; such receipt to be issued by the occupier of the place to which the fill material has been transferred and the quantity of fill material transferred; 2. provide each receipt procured for the purpose of paragraph 4 (sic) to the Applicant Council within three days of transfer. 1. On 24 March 2017, the Applicant Council was granted, ex parte, an interim injunction to restrain the Respondent, his servants, agents and invitees from receiving fill material and undertaking earthworks involving the spreading of the fill material. 2. On 31 March 2017, at the first directions hearing for the matter, the Respondent appeared in person. Although the Respondent did not apply to discharge the interlocutory orders made the week previously, given the interlocutory orders had been made ex parte the Chief Judge considered it appropriate to nonetheless provide the reasons why his Honour considered it just and appropriate that the interlocutory injunction should be maintained (see Blacktown City Council v Saker and Ors [2017] NSWLEC 46). 3. On 11 August and 25 August 2017, directions hearings were held before me. On both occasions the Respondent was represented by counsel (Mr Nash and Ms Berglund respectively). 4. On 15 September 2017, at a subsequent directions hearing at which the Respondent was represented by Mr Nash of counsel, Moore J made orders requiring, inter alia, that the Respondent provide a Waste Removal and Remediation Plan to the Applicant Council by 8 November 2017. 5. On 6 November 2017, a notice of ceasing to act was filed by Mr Michael Ghobrial, who had been the Respondent's legal representative in the matter since August 2017. From this date, the Applicant Council asserted at hearing, "Mr Jason Saker has neither appeared nor been represented in these proceedings since" (Transcript, p 2). The Applicant Council has made efforts (detailed below at [24]-[37]) to ensure that the Respondent is informed of the status of these proceedings and that he has had ample opportunity to defend the case against him. 6. On 10 November 2017 the matter was listed before Sheahan J for directions. At that hearing, which was not attended by the Respondent, the Applicant Council informed his Honour that no Waste Removal and Remediation Plan had been provided to the Applicant Council, and the matter was set down for hearing. 7. On 28 February 2018 the Applicant Council filed a further amended summons seeking to provide for circumstances in which the requested Remediation Plan is not approved by the Applicant Council. The Respondent's Bankruptcy 1. On 22 February 2016, the Respondent was declared bankrupt. However, the Applicant Council asserted, this bankruptcy, pursuant to s 58(3) of the Bankruptcy Act 1966 (Cth), does not prevent these proceedings from being taken against him as the proceedings are not in respect of "a provable debt" (provable debts being all debts and liabilities, present or future, certain or contingent, to which a bankrupt person was subject at the date of the bankruptcy, or to which he or she may become subject before his or her discharge by reason of an obligation incurred before the date of the bankruptcy, are provable in his or her bankruptcy: ss 5, 82(1) of the Bankruptcy Act). 2. For that reason, the Applicant Council further submitted, the proceedings are also not amenable to being stayed under s 60(1)(b) of the Bankruptcy Act. Having examined the legislation and case law placed before the Court relevant to this issue, the Court is satisfied that it was both appropriate and lawful to proceed. The second, third, and fourth respondents 1. Joined to the proceedings are the registered proprietors of the land, as tenants in common: 1. Mr Sam Saker (the Second Respondent); and 2. the State of New South Wales (the Fourth Respondent). 1. The Applicant Council noted that it does not allege that either Sam Saker or the State of NSW have condoned the filling of the Land. It noted that they are joined in their capacity as owners because the Applicant Council ultimately seeks orders for the remediation of the Land by the Respondent, and thus their interests are liable to be affected (citing Ross v Lane Cove Council [2014] NSWCA 50; (2014) 86 NSWLR 34). 2. The proceedings, as originally filed, joined as Third Respondent, Bruce Gleeson, as trustee of the property of Jason Saker. However, on 18 April 2017 Mr Gleeson disclaimed the Land under s 133 of the Bankruptcy Act 1966 (Cth). He was subsequently replaced on the title of the Land by the State of NSW. As such, on 28 September 2017, the Applicant Council filed a Notice of Discontinuance in the proceedings insofar as they related to Mr Gleeson. On 29 September 2017, by order of Robson J, the State of NSW was joined as the Fourth Respondent. 3. In the hearing before me, the Fourth Respondent entered a submitting appearance save as to costs. 4. The Second Respondent did not appear, however a letter from his solicitor Oxford Legal dated 27 February 2018 was tendered, which stated that the Second Respondent "will not be able to attend the hearing and has confirmed that he does not object to the Orders sought by the Applicant in the Notice of Motion dated 22 February 2018 and consents to the Further Amended Summons dated 22 February 2018". It was appropriate to hear this matter ex parte 1. The Respondent did not appear in court on either of the days this matter was heard. Indeed, as noted above at [14], the Court heard that following the Respondent's legal representative ceasing to act, the Respondent has not engaged with the Court or the Applicant Council in relation to the proceedings. 2. In an instance such as this, where a respondent has not attended Court for hearing, the Court is required to be satisfied that the documents and evidence on which the applicant relies in its claim have been served on the respondent, and that the respondent was notified of the hearing of the matter. 3. The evidence proffered by the Applicant Council showed the extent to which it had gone to effect service on the Respondent and to keep him informed of these proceedings and its investigation of the alleged contravention. The Applicant Council relied on the following affidavits attesting to its efforts in this regard: 1. an affidavit of Carlo Peter Zoppo dated 26 February 2018; 2. affidavits of Malcolm Hill dated 23 March 2017 and 24 March 2017; 3. an affidavit of Mark Slater dated 31 March 2017; 4. affidavits of Clark Shaw dated 15 November 2017 and 1 December 2017; and 5. an affidavit of Mr Clinton Portors dated 26 February 2018. 1. The affidavit of Mr Zoppo of 26 February 2018 set out the steps the Applicant Council had taken to notify the Respondent of the progress of the matter, including, early in the proceedings: 1. On 8 May 2017 Mr Zoppo sent a text message to the Respondent, asking whether the Respondent had engaged a lawyer, and, if not, where the Applicant Council's evidence and points of claim should be sent; 2. On 9 May 2017, Mr Zoppo's office couriered the Applicant Council's evidence in the matter (including the affidavits referred to below at [46] as the Applicants May Evidence) to the Respondent; 3. On 10 May 2017, Mr Zoppo's office express posted a letter to the Respondent enclosing the Applicant Council's points of claim; 4. On 14 June 2017 Mr Zoppo, by email, requested that Mr Roberts serve a letter on the Respondent as the Respondent was not answering Mr Zoppo's telephone calls or text messages. 1. This affidavit also deposed that following the directions hearing before Robson J on 16 June 2017 at which the Respondent was present, the Respondent said to Mr Zoppo that he had not received documents from the Applicant Council. Mr Zoppo then invited the Respondent to Mr Zoppo's office where the Respondent was given another copy of the Applicant's May Evidence, which the Respondent signed for. A copy of the receipt signed by the Respondent was annexed to Mr Zoppo's 26 February 2018 affidavit. 2. The Applicant's June Evidence (described at [46] below) was provided to the Respondent both personally on 30 June 2017 and by registered post on 26 July 2017. A copy of a receipt signed by the Respondent on 30 June 2017 acknowledging receipt of this material was annexed to Mr Zoppo's 26 February 2018 affidavit. 3. The affidavits of Malcolm Hill dated 23 March 2017 and 24 March 2017 set out the service of the Summons, Notice of Motion, and supporting materials on the Respondent. 4. The affidavit of Mark Slater dated 31 March 2017 deposes to the service of the orders made by the Court, ex parte, on 24 March 2017. 5. The affidavit of Clark Shaw dated 15 November 2017 attests to the service of: 1. a letter from the Applicant Council's solicitors dated 7 November 2017 reminding the Respondent of his obligation to provide a Waste Removal and Remediation Plan, the directions hearing set for 10 November 2017, its intention to pursue costs of a final hearing, and that the need for a hearing may be avoided if the Respondent consented to the orders sought by the Applicant Council; and 2. the orders made by Moore J on 15 November 2017. 1. The affidavit of Clark Shaw dated 1 December 2017 attests to the service of: 1. a copy of a letter sent by Mr Zoppo to the Respondent by post advising of the orders made by Sheahan J on 10 November 2017; and 2. the Applicant's June Evidence. 1. On 15 February 2018, Mr Zoppo sent a letter to the Respondent reminding him of the hearing date, and on 19 February 2018 he sent a text message to the Respondent containing a photograph of that letter. 2. A further copy of that letter, together with a copy of the motion seeking leave to amend the Summons, was served on the Respondent by Mr Roberts, by leaving those documents with a person at the Land on 22 February 2018. 3. At the hearing on 28 February 2018, I indicated that I was satisfied that the Respondent had been or ought to have been aware that the matter had been set down for hearing and that he had been served with the substantive evidence of the Applicant Council in the proceedings. As such, I decided that it was appropriate for the hearing to continue in the absence of the Respondent. 4. At the second day of hearing, on 15 March 2018, the Applicant Council read a further affidavit of service of Mr Clinton Portors, dated 13 March 2018, which attested to serving a number of documents, including a letter from the solicitor for the Applicant Council reminding the Respondent of the second day of hearing and indicating the Applicant Council's intention to seek indemnity costs with respect to the proceedings, on the Respondent by leaving them at his residential premises on 12 March 2018. Notice of motion to amend summons 1. At the commencement of the proceedings, the Applicant Council sought, by way of a notice of motion dated 22 February 2018, to further amend the Summons, replacing its original request for an order that the Respondent provide a Remediation Plan to the Applicant Council within 42 days, with: 5. An order, pursuant to section 124 of the Act, that the First Respondent must: a. Provide the Remediation Plan to the Council for approval within 42 days of the date of this order; and b. If the Council advises the First Respondent that it does not approve the Remediation Plan, the First Respondent must, within 42 days of being so advised, submit an amended Remediation Plan which addresses any issues communicated by the Council regarding matters that should be addressed in the amended Remediation Plan. 1. I noted the wisdom of seeking to provide for circumstances in which a remediation plan submitted to the Applicant Council by the Respondent was not of the requisite standard, and therefore made the order to further amend the summons during the course of the proceedings. Relevant statutory provisions 1. The previous s 121B of the EPA Act stated (relevantly) that an order may be given to a person by a council to do or to refrain from doing a thing specified in the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table: Column 1 Column 2 Column 3 To do what? In what circumstances? To whom? (a) Premises are being used for a purpose that is prohibited 1 To cease using premises for a purpose specified in the order (b) Premises are being used for a purpose for which development consent is required but has not been obtained Owner of premises, or person by whom premises are being used for the purpose specified in the order (c) Premises are being used in contravention of the conditions of a development consent … 12 To do such things as are specified in the order to restore premises to the condition in which they were before building was unlawfully erected or before work was unlawfully carried out (a) Building has been unlawfully erected, and an order No 2 has been given requiring the building to be demolished or removed The owner of the premises, any person entitled to act on a development consent or complying development certificate or any person acting otherwise than in compliance with a development consent or complying development certificate (b) Work has been unlawfully carried out … 1. The previous s 124 (now s 9.46) of the EPA Act empowered the Court to, where the Court was satisfied that a breach of that Act has been committed, or will be committed unless restrained by order of the Court, it may make such order as it thinks fit to remedy or restrain the breach. 2. The Land is zoned RU4 Primary Production Small Lots under the Blacktown LEP. Within that zone, the only land use permitted without consent is home occupation. Land uses permitted with consent include (relevantly) Environmental protection works; Flood mitigation works; Landscaping material supplies. Land uses listed as prohibited are agriculture and those land uses that are not listed as permitted with consent or permitted without consent. 3. Section 76B of the EPA Act, as it was at the time of the alleged contravention, provided that: 76B 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. The dictionary to the Blacktown LEP provides that (relevantly): earthworks means excavation or filling. flood mitigation work means work designed and constructed for the express purpose of mitigating flood impacts. It involves changing the characteristics of flood behaviour to alter the level, location, volume, speed or timing of flood waters to mitigate flood impacts. Types of works may include excavation, construction or enlargement of any fill, wall, or levee that will alter riverine flood behaviour, local overland flooding, or tidal action so as to mitigate flood impacts. 1. The Land is mapped as being in a high flood risk precinct under the Blacktown LEP, and is also shown as "Flooding planning – Flood Prone". As the Land is below the flood planning level, cl 7.1 of the Blacktown LEP applies to the Land. Clause 7.1(3) of the Blacktown LEP relevantly provides: (3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development: (a) is compatible with the flood hazard of the land, and (b) will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and ... (d) will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses... Evidence 1. In addition to the affidavits of service discussed above at [26]-[37], the Applicant Council relied on a number of affidavits across a range of disciplines in order to make out its case against the Respondent: 1. Affidavit of Glenn Apps dated 13 April 2017; 2. Affidavit of Wayne White dated 13 April 2017; 3. Affidavit of Eric Brandao dated 21 April 2017; 4. Affidavit of Jason Roberts dated 28 April 2017; 5. Affidavit of Christopher Mark McLean dated 4 May 2017; 6. Affidavit of Mitchell Royle dated 4 May 2017; 7. Affidavit of Andrew Watt dated 4 May 2017; 8. Affidavit of Vincent Shepherd dated 5 May 2017; (referred to by the Applicant Council as the 'Applicant's May Evidence') 1. Affidavit of Chris Thomas dated 30 June 2017; 2. Affidavit of John Molteno dated 30 June 2017; and (referred to by the Applicant Council as the 'Applicant's June Evidence') 1. Affidavit of Michaela Burgess dated 4 May 2017. Evidence of deposition of fill and earthworks Aerial Photographs 1. The Applicant Council relied on a series of aerial photographs as evidence of the works on the Land. Specifically, it relied on photographs annexed to the affidavit of Mr Roberts of 28 April 2017 from the following dates (relevantly): 1. 2 October 2016, prior to the commencement of works; 2. 6 November 2016; 3. 11 February 2017; 4. 12 March 2017; and 5. Date unknown, but showing proximity of fill to the creek. 1. These photographs, the Applicant Council contended, showed a significant amount of fill on the banks of South Creek and a progressive loss of vegetation on the Land. Inspections by Council and EPA officers 1. Also relied on by the Applicant Council as evidence of the Respondent's alleged use of the Land to receive fill material were affidavits of Council and Environmental Protection Authority (EPA) officers deposing to site inspections (affidavits of Jason Roberts dated 28 April 2017, Glenn Apps dated 13 April 2017, Wayne White dated 13 April 2017, Eric Brandao dated 21 April 2017, Michaela Burgess dated 4 May 2017, Christopher McLean dated 4 May 2017, and Vincent Shepherd dated 5 May 2017). 2. Officers from the Applicant Council and the EPA conducted site inspections on a number of occasions from November 2016 to April 2017. These inspections were chiefly conducted from outside the premises, on Shanes Park Road, as consent to enter could not be obtained. 3. On 15 November 2016, in response to complaints by members of the public, two Council officers, Jason Roberts and Glenn Apps, attended the Land, and did not enter it but rather viewed it from outside. They both deposed to seeing a large amount of fill material comprising building waste and soil towards the rear end of the Land and to seeing a B-double truck and trailer leaving the Land. 4. Mr Roberts deposed that following the inspection, he searched the Applicant Council's file in relation to the Land, and the Register of Development Consents and Certificates maintained under (the then) s 100 of the EPA Act. That search disclosed that no development consents had been issued in relation to the Land. Mr Roberts also contacted Mr Sam Saker (the Second Respondent) who stated that he did not live on the Land but that his nephew Jason lived there. 5. On 1 December 2016, Council officer Wayne White did not enter the Land, but observed it from Shane Park Road for about 15 minutes from his parked vehicle. He observed a tipper truck with dog trailer parked on the property and two tipper trucks with dog trailers entering the Land and emptying their contents at the rear of the property. 6. On 2 December 2016, Council officer Eric Brandao visited the Land and, unlike other occasions, was able to obtain consent to enter the Land from an unidentified woman who was on the Land with two young children. He observed a number of shipping containers and car parts on the Land and, at the rear of the Land, earth moving machinery and fill containing broken pieces of old building material (broken tiles and concrete). He deposed to having taken photographs of the fill material but being subsequently accosted by four men on the property (whose identities are unknown) who demanded he delete the photographs. He complied with those demands. 7. On 28 February 2017, Mr Roberts attended the Land again and took some photographs from outside. He observed that a substantial amount of additional fill material appeared to have been imported to the Land since his prior inspection on 15 November 2016. 8. On 7 March 2017, Mr White attended the Land again and parked outside for about 30 minutes. He observed five tipper trucks with dog trailers enter the Land, drive to the rear and dump their loads. He also observed a sixth truck enter and leave the Land, and that another truck was present. Mr White describes one of the loads as "comprised of dark brown dirt which included large rocks." He also observed an excavator on the Land spreading out the loads. He took photographs of the activities. 9. On 21 March 2017, Mr Roberts again checked the Council's Register of Development Consents and found that there were still no consents issued in relation to the Land. 10. On 22 March 2017 Mr Roberts and Mr Apps obtained access to the Land, accompanied by EPA officers Michaela Burgess and Jennifer Rowe and Chief Inspector McMahon and Inspector Smith of the Mount Druitt Local Police Force. 11. At that inspection, Mr Roberts observed "many thousands of tonnes of fill that contained broken brick, wood, rock, concrete, burnt materials, paper and plastic" and that fill had been placed along the South Creek creekline and was spilling into that creek. 12. Observations made by Ms Burgess, Mr Roberts and Mr Apps on that site inspection and deposed to in their respective affidavits included the following: * Extensive amounts (according to Mr Roberts, "many thousands of tonnes") of fill material were observed deposited on the Land, including broken brick, wood, rock, concrete, burnt materials, paper, plastic, soil, tiles, metals, car bodies mixed in with soils. This was also documented in photographs H-J annexed to Mr Roberts' affidavit; * Cement fragments in the fill material which Ms Burgess suspected to be bonded asbestos; * The area at the rear of the Land to which the material had been applied was estimated by Ms Burgess to be 200m in length and 100m wide, with batters about 15m high leading down into South Creek. There were cracks along the crest of the fill area and the batters adjacent to the creek appeared unstable; * Waste material was visible floating in South Creek; * There was sediment run off from the batter into the creek, the colour of the water was darker than the opposite edge of the creek and the water appeared, to Ms Burgess, very turbid; * Fill material had been placed around trees and was 2-3m deep around the trunks; * A front end loader was located on the land, and a man who came to operate the loader identified himself as Alex Houchar (or Houcher) to the police; * Mr Roberts and Ms Burgess also took a number of photographs, and Ms Burgess took a short video; and * There was a partial fence between Nos 48 and 50, but at the rear of the Land there was no fenceline delineating the boundary between the two properties. 1. On 28 March 2017, Ms Burgess delivered a clean up notice issued under the Protection of the Environment Operations Act 1997 to the Respondent, requiring him to: immediately secure the Land to prevent unauthorised access; erect, maintain and keep clearly visible a sign provided by the EPA; and to cease receiving waste, causing receipt of waste, cease applying waste, causing the application of waste, burning waste, causing the burning, transporting or immediately cease causing the waste. The clean up notice also required the Respondent not to "remove, alter or disturb any waste material or earth" at the Land except to carry out the works required by the notice until written notification is received from the EPA. 2. On 4 April 2017, Ms Burgess and Ms Rowe again attended the Land, accompanied by Mr Strath Clarke, an engineering consultant, to assess the stability of batters. They were also accompanied by police officers. Ms Burgess observed that it appeared as though the crest of some of the material had been flattened down and pushed into the creek. Mr Clark told Ms Burgess that the entire crest of material was unstable and at risk of slumping into the creek. In the inspection report received by the EPA from Mr Clarke on 11 April 2017, stabilisation measures were proposed to reduce the risk of batter slope failure. These works were advised as a "short-term stabilisation solution up to 12 months". These stabilisation works, the Court heard, were carried out by the EPA, commencing on 22 June 2017. 3. On 11 April 2017, Mr Apps attended the Land along with a number of other Council officers, including the Council's biodiversity officer (Dr Christopher McLean) and two Environmental Health Officers including Mr Vincent Shepherd. He observed that the gates to the Land were shut and locked. 4. Mr Apps observed that some of the fill material had been pushed into South Creek, with the bank now approximately 7-8m high with a steep batter of grade 1:1 or steeper. He estimated that about 7-8m of fill material had been placed onto the creek bank. He also noted that fill had been pushed into a smaller tributary to South Creek which crosses the Land in a north-south direction. In total, Mr Apps estimated there to be 45,000 to 50,000m3 of imported fill material, covering an area about 11,500m2 at depths of 3-8m deep. Mr Apps further observed that the gates to the Land were shut and locked but that the gate to number 48 was open, that there was no boundary fence between the properties, and that a track had been created over number 48 to the Land. Interviews with the Respondent 1. The Respondent was interviewed at the inspection conducted on 22 March 2017 by Mr Roberts of the Applicant Council and, separately, Ms Rowe and Ms Burgess of the EPA. 2. In Mr Roberts' interview with the Respondent, the Respondent said he "brought [the fill] in to stop the flooding", starting "about 2 months ago". He pointed to Alex Houcher and said "I tried to stop it but he kept bringing it in and started taking it through there" (indicating No 48). He stated that he did not contact the Police or Council regarding the fill, and had not contacted the Council for approvals for the fill. He said that he had not received documents from the Applicant Council, as his mail was stolen by his ex-partner, but that he had not reported this to the police. 3. The Respondent gave similar responses when interviewed by Ms Burgess and Ms Rowe. In particular: * He admitted telling a person named Abdul that he could tip "clean fill" on the Land; * He estimated that "a couple of hundred tonne" has been dumped; * He stated that 20 trucks a day (being tipper trucks and dog trailers) had been coming, although "for the last month, I've stopped them, but they've kept coming through the next door neighbours"; * He stated that he had told Mr Abdul Haucher to stop depositing the fill material and, in addition to locking his gates, he had "tried to fight" Mr Haucher in an attempt to prevent the trucks entering the Land; * He stated that he received no payment; * He stated that he did not know he needed any approvals; and * He said he asked Mr Haucher if the fill contained asbestos, to which Mr Haucher replied that it did not. However, he did not obtain any proof from Mr Haucher that this was the case. Samples of material 1. At the 22 March 2017 inspection, Ms Burgess collected two samples from the Land and two samples from No 48. The two samples collected at the Land were later analysed. The report of that analysis indicated that the samples collected at the Land both contained chrysolite asbestos, and one also contained amosite asbestos. 2. Mr Shepherd, at the 11 April 2017 inspection, took six samples of material: * Three samples of water from South Creek, on various sides of the embankment of fill; * One sample of water from the small tributary; and * Two samples of fibre-cement sheeting. 1. The test results of the samples revealed: * The two samples of fibre-cement sheeting contained asbestos * There were elevated levels of total suspended solids and turbidity in South Creek (Mr Shepherd observed that this may have been attributable to the heavy rainfall in the area in the weeks leading up to sampling), and * The water quality of South Creek exceeded the ANZECC guidelines trigger value for turbidity, however the sample from the tributary was below that trigger value. Environmental impacts Ecological impacts 1. The Applicant Council's expert ecologist, Dr Christopher McLean, Senior Biodiversity Officer (Ecologist) with the Applicant Council, was party to the site inspection on 11 April 2017. In his affidavit dated 4 May 2017, Dr McLean set out the observations he made at that site inspection and his assessment as to what was on the site, the significance of the site and the potential impacts. 2. Dr McLean considered that, prior to the Works, the Land and South Creek would have contained suitable habitat for a number of threatened fauna species – four species of bat (Grey-Headed Flying Fox, Eastern Bentwing-bat, Little Bentwing-bat and Southern myotis), and four species of diurnal bird (Swift Parrot, Speckled Warbler, Varied Sittella and Dusky Woodswallow). However, he noted that the Applicant Council does not have survey data to demonstrate the extent of the use of the Land by protected or threatened fauna. 3. In Dr McLean's opinion, the vegetation at the rear of the Land falls within the description of an endangered ecological community, River-Flat Eucalypt Forest on Coastal Floodplains of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions (RFEF). 4. Dr McLean estimated that, prior to the Works, there would have been about 14,000m2 of RFEF across the Land and No 48, with approximately 4,000m2 on the Land itself. It would have been a similar quality to that remaining, which is relatively poor and dominated by weeds, but still containing native species. Dr McLean estimated that about 3,000m2 of RFEF has been destroyed and covered by the fill, and noted that the only remaining vegetation in the RFEF areas are two remnant Angophora floribunda trees, with fill material pushed up around them, and one tree stump. The Court heard that the placement of fill will lead to the death of these trees unless removed. 5. The deposition of fill, in Dr McLean's opinion, has caused fragmenting of the RFEF, and has created a "gap" in a likely wildlife corridor across the Land with no canopy of understorey vegetation for approximately 50m. This will limit the movement of groundstorey dwelling birds and reptiles. The deposition of fill has also resulted in the reduction of foraging habitat potential for the identified threatened fauna species. 6. Dr McLean observed that fill material about 7-8m in height has been deposited onto the south eastern bank of South Creek, along about 50m of bank, and pushed into the connecting tributary, and that the water in both creeks was brown and turbid. In Dr McLean's opinion, the fill will create impacts on water quality. This is because unconsolidated sediments such as those on the Land are highly dispersive, dissolve in water and remain in suspension for extended periods, which may impact turbidity and total suspended solids. This can, Dr McLean said, lead to fish kills and reduced macroinvertibrate abundances, leading to a less suitable habitat for native species and a habitat more prone to invasion by exotic pest species. Dr McLean noted that the Applicant Council's water quality monitoring of South Creek prior to the filling works showed South Creek as being in a "good condition" with measured variables, on 85% of test occasions, being within ANZECC guideline limits. 7. Dr McLean recommended that fill in the creeks, and within 40m of the banks, be removed to reduce the risk of ongoing environmental harm including water pollution, and to allow the regeneration of RFEF. He included some recommendations for inclusion in a remediation plan for the removal of the fill and re-establishment of RFEF on the Land. 8. Although Dr McLean's affidavit was affirmed before the EPA had conducted its emergency stabilisation works, in evidence given to the Court, Dr McLean confirmed that he was aware of the works and had examined an aerial photograph from July/August 2017 showing heavy plant on site, and one from January 2018 showing the completed emergency stabilisation works. However, Dr McLean noted that he had not attended the site since that time, given the difficulties of obtaining access. From his observation of the aerial photographs and his time on site, Dr McLean's analysis was that, although the works were appropriate emergency measures (alleviating some of the potential for erosion and gully erosion), given the composition of the site (clay, which can pass through sediment fencing) and the height and lack of compaction of the works, a flood event would mobilise much of the material on the banks into South Creek. Dr McLean confirmed the recommendation in his affidavit that all fill material be removed from the riparian protection zone areas which are the areas within 40m of the creek lines, that appropriate rehabilitation works occur along those areas, noting that this vegetated buffer is specified in the Water Management Act 2000. 9. In relation to the longevity of the impact of the Works, Dr McLean gave evidence that, although a eucalypt canopy could be re-established in approximately 20 years, it would take up to 60 years for the RFEF to be restored. This restoration, however, is at high risk from weed species, and would require active weed suppression and management for a number of years lest, rather than RFEF, it becomes a weed-dominated area. Flooding impacts 1. The Applicant Council engaged Mr Chris Thomas, a civil engineer with expertise in hydrology, flood hydraulics and floodplain management, to conduct an assessment of the potential of the fill material on the Land to have an adverse impact on flooding along South Creek. 2. Mr Thomas' expert report, dated 8 June 2017 and annexed to Mr Thomas' affidavit of 30 June 2017, modelled peak flood levels and peak flow velocities in both pre Works and post Works conditions in two specific flood scenarios involving a 1 in 100 year flood, or 1% Annual Exceedance Probability (1% AEP): * Scenario 1 – in which there is flooding of the South Creek Floodplain and tributaries due to a 1% AEP event occurring in the catchment concurrently with a 1% AEP flood in the Hawkesbury-Nepean River (that is, Local 1% AEP and Regional 1% AEP); and * Scenario 2 – in which there is flooding of the South Creek Floodplain and tributaries due to a 1% AEP event occurring in the catchment without any flooding in the Hawkesbury-Nepean River. 1. Mr Thomas concluded that there is a possibility of increases of both 1% AEP flood levels and flow velocities in both scenarios, although the impacts are lower in Scenario 1 as backwater flooding will "drown out" most of the impacts caused by the filling. In Scenario 2, he considered that the impacts are significant, as peak flood levels will increase by up to 0.1m. Increased flood levels will be experienced up to 500m upstream of the site, and as many as 43 properties will experience increases in 1% AEP flood levels of 30mm or more. 2. Mr Thomas also predicted that there will be velocity increases of up to 0.45m/s, or a 38% increase in peak flow velocity in the worst location, in both scenarios. Applicant's Submissions Declaratory relief: a breach of the Act 1. The Applicant Council sought a declaration that the Respondent: Has carried out or permitted the carrying out of development on Lot 134 in Deposited Plan 32148, known as 50 Shane Park Road, Shanes Park, New South Wales 2747 (Property) being the use of the Property to receive fill consisting of building waste, soil, rocks and other material (the Fill Material) and undertaking of earthworks involving the spreading of the Fill Material, such development that was on land zoned RU-4 Primary Production Small Lots, being prohibited by virtue of the Blacktown Local Environmental Plan 2015 (BLEP 2015), such prohibited development being undertaken contrary to section 76B of the Environmental Planning and Assessment Act 1979 (Act). 1. The Applicant Council, noting that within zone RU4 if development is not for the purpose of one of the specified uses listed it is prohibited, submitted that the works were prohibited. The Applicant Council argued that, given the scale and extent of the works, they are best characterised as earthworks, which is defined in the dictionary to the Blacktown LEP as "excavation or filling". The Applicant Council noted that the works may also be characterised as a waste disposal facility, as the fill material includes miscellaneous waste material. However, it submitted that there is no clear evidence that the works were directed towards any particular end, and so such use of the Land as a waste disposal facility is not clearly established on the evidence. As neither earthworks nor waste disposal facilities are listed as permitted within the RU4 zone, they are prohibited. Argument for the Respondent 1. Counsel for the Applicant took care to ventilate the issues that the Respondent may have raised had he been present. 2. First, that (having regard to his statements in the interviews with Mr Roberts and with Ms Burgess) the Respondent may have argued that the works were flood mitigation works, and as such, were not prohibited in zone RU4. The Applicant Council noted that works for that purpose are permissible with consent, rather than prohibited, however that no such consent had been obtained in relation to the Works. Further, the Applicant Council noted that the Respondent conceded in the interview with Ms Burgess, referring to a person Houcher who was bringing fill material on to the Land, that "obviously, he's put too much"- an admission that the quantity of fill received was in excess of that which the Respondent desired for any purpose of flood mitigation. The Applicant Council argued that this demonstrates that at most, any flood mitigation purpose only partly explains the reason for the filling and earthworks. 3. Second, that the Respondent may have argued that he himself did not carry out the works and that the works were carried out against his wishes. The Applicant Council, citing Wilkie v Blacktown City Council [2002] NSWCA 284, noted that merely "permitting or suffering" or "permitting or allowing" activities which contravene a breach cannot, without more, authorise the making of orders against persons who did not breach the EPA Act themselves under s 124. In answer to this, the Applicant submitted that liability may be attracted by a person who expressly authorises the acts causing the contravention, or, potentially, who benefits from them. The Applicant argued that the Respondent's situation is distinguishable from that of Ms Wilkie's in that the Respondent was the occupier of the premises, and therefore had a degree of control over what occurred thereon, "at least in terms of observing what was going on over the land, asking people to stop and if they did not stop, asking the appropriate law enforcement or authorities to take action" (Transcript p 68). Further, in contrast to Ms Wilkie who did not request the unlawful acts to be carried out on the land and did not benefit from them, the Respondent had admitted to authorising the impugned works, and also admitted that he sought to gain benefit from them in terms of relief from inundation (stating to Mr Roberts that "I brought it in to stop the flooding"). 4. In addition, the Applicant Council noted that after it became aware of the filling and earthworks, two s 121B orders were sent to the Respondent, but the filling continued, with no evidence of the Respondent taking any steps to comply with the orders and remove the fill. 5. The Applicant Council noted that, in the interviews with Mr Roberts and Ms Burgess, the Respondent said that although he agreed to the dumping of fill material on the Land, at some stage he asked those bringing the material to stop, but they continued dumping the material. The Applicant's response to this was that the Respondent did not take any steps to notify the Council or the police of the alleged trespass of those dumping rubbish and that in the circumstances, having invited the dumping to start, the Respondent did not take all reasonable steps to prevent it from continuing (Transcript, p 70): We would say to your Honour that even to the extent that Mr Saker claims to have withdrawn permission at some stage that the lack of any evidence of any serious attempts by Mr Saker to prevent that from occurring suggests that one should view with some scepticism his suggestion that the dumping of the fill was not authorised. Obviously, we have to rely on what Mr Saker said in relation to the acts which did occur but we would say also, bearing in mind that the EPA attended the site and the council attended the site on 22 March, shortly after that the EPA issued the clean up notice on 28 March requiring him to secure the site and put up the signs. The evidence seems to be that everything stopped at that date, that Mr Saker had no difficulty after that time in complying with the law. It really does beg the question as to what the difficulty was between the time that he says permission was withdrawn. Basis for declaratory relief 1. The Applicant acknowledged that, while the Court will not always grant declaratory relief (as discussed by Preston J in Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1 at [19]-[25]), it may be appropriate to do so in certain circumstances. 2. Such circumstances include where there has been an ongoing breach; where the conduct has been carried out despite the 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 (as discussed in Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 at [15]-[23]; Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114 at [203]-[217]). The Applicant argued that these circumstances exist in relation to this matter and as such, the grant of declaratory relief against the Respondent, in addition to injunctive relief, is warranted in this case. 3. In particular, the Applicant Council contended, the denunciatory value of the declaratory relief makes it an appropriate addition to the injunctive relief sought. Injunctive relief 1. The Applicant Council sought orders, inter alia, to the following effect: 1. injunctive relief restraining the Respondent from further receipt of fill material and carrying out of earthworks on the Land; 2. an order requiring the preparation of a Remediation Plan, to be submitted to the Council for approval, providing for the removal of the imported fill and remediation of the Land; and 3. an order, once the Plan has been approved, requiring implementation of the Plan to remove the fill and remediate the Land, and transport the fill to a place where it can be lawfully disposed of with receipts of disposal provided. 1. The Applicant Council submitted that the evidence detailed above demonstrates that the continuing presence of the fill on the site continues to cause environmental harm, and in particular that: 1. the unstable fill on the banks of South Creek and Stony Creek poses an ongoing risk to water quality, and a consequential effect on downstream habitats (noting that the situation may have been alleviated somewhat by the EPA's emergency engineering works in June-July 2017); 2. the removal of vegetation – including an estimated 3,000m2 of vegetation comprising the endangered ecological community RFEF - has created a gap in a wildlife corridor, and also removed foraging habitat for a number of threatened species likely to occur in the area; 3. it is predicted that the fill will cause increased flood levels and velocities in a 1% AEP event. In particular, if there is no flooding of the Hawkesbury-Nepean River, a 1% AEP event for South Creek may now result in increased flood levels across up to 43 properties of 3-10cm; and 4. the material on the site includes items containing asbestos, which should be disposed of in a manner to minimise any potential harm. 1. The Applicant Council noted that on 15 September 2017, the Respondent, through his then counsel, consented to the making of orders requiring him to provide a Waste Removal and Remediation Plan by 6 November 2017. This plan was never provided. Costs 1. The Applicant Council, in its supplementary submissions, submitted that the Court should order the Respondent to pay its costs on an indemnity basis. The effect of bankruptcy on costs 1. It submitted that the bankruptcy of the Respondent does not prevent the Court making an order for costs, as such an order, made after the bankruptcy, would not be a debt or liability to which the Respondent was subject on the date of his bankruptcy. In support of this contention, the Applicant Council relied on Adams v Fairfield City Council [2010] NSWLEC 81, in which Craig J held, in the circumstances of a notice of motion seeking costs against a party, filed prior to that party's bankruptcy, that there is no liability to pay costs until such time as the discretion to make an order is exercised by the Court. The mere circumstances that give rise to the Court deciding it will make a costs order (in that matter, the motion seeking a costs order), do not of themselves constitute a liability prior to the bankruptcy. This interpretation was supported by the decision of the High Court in Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56, which dealt with circumstances in which judgment in a commercial dispute was handed down (but the matter of costs not yet decided upon) prior to the applicant's bankruptcy. Some months later the issue of costs was determined, with the trial judge ordering the applicant pay the successful party's costs on an indemnity basis. On appeal the majority (Gleeson CJ and Gummow, Hayne and Crennan JJ) held at [67]: Had the costs order made by Chesterman J on 3 February 2006 been made and taxed before the appellant's bankruptcy ensued, it would have been a provable debt. Even if the order had not been taxed before bankruptcy, it would nonetheless have been provable as a debt incurred "by reason of an obligation incurred before the date of the bankruptcy"; namely the antecedent making of the costs order. However, the order was made only after bankruptcy had already intervened, and the appellant's liability to meet that order did not arise from an obligation incurred before bankruptcy. Thus, it was not a provable debt, and the stay contained in s 58(3) of the Bankruptcy Act was not engaged. His Honour was therefore entitled to make the costs order against Mr Foots. 1. The Applicant Council argued that the logic that applied in the above cases applies to the present circumstances - that until such a time as the Court makes an order as to costs, it does not become a provable debt. In fact, the Applicant contended, the present circumstances are more favourable to it than those of Adams and Foots, because in the Respondent's case, the bankruptcy was not an act which came in the middle of the proceedings, as it did in those matters, but rather came before the proceedings had commenced. Therefore, the Applicant submitted, the Court has the power to make the costs order sought. Indemnity costs sought 1. As to whether such an order ought to be made, the Applicant Council relied on Canterbury City Council v RTA (No 2) [2004] NSWLEC 536, a matter in which indemnity costs were sought on the basis of alleged unreasonable conduct by a respondent, and in which Lloyd J discussed, at [9], relevant principles: The Court will not lightly depart from the standard practice in the awarding of costs (Degmam Pty Ltd (In Liq) v Wright (No. 2) [1983] 2 NSWLR 354 at 358 per Holland J). It will be appropriate to award indemnity costs, however, where a party, properly advised, should have known that it had no chance of success (Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401 per Woodward J). Indemnity costs may also be awarded if there is an element of abuse of process, or the proceedings have been maintained for some ulterior or extraneous purpose, or there is some evidence of unreasonable conduct (MGICA (1992) Ltd v Kenny & Good Pty Ltd (No. 2) (1996) 70 FCR 236 at 240-241). As to unreasonable conduct, the ordinary basis for costs orders should only be departed from where the conduct is "plainly unreasonable" (Nobrega v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (No. 2) [1999] NSWCA 133, LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2003] NSWCA 74 at [108], [119]). I shall consider each of the matters raised by the council in turn. 1. The Applicant Council argued that there was nothing before the Court to suggest that the Respondent, properly advised, would have had a chance of successfully defending the proceedings. 2. As to "plainly unreasonable" conduct, the Applicant Council noted that the standard of such conduct does not rise as high as requiring that one party be ethically or morally delinquent, or that the conduct need be vexatious (relying on Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 616; Maule v Liporoni (No 2) [2002] NSWLEC 140, 122 LGERA 216 at [36]-[37]). 3. While the Applicant Council acknowledged that in its initial summons it did not seek indemnity costs, it noted that it had subsequently put the Respondent on notice of its intention to seek indemnity costs in a letter from its solicitor, Mr Zoppo, dated 5 March 2018. Further, it argued that while success in an application for indemnity costs is more likely if the opponent was put on notice of the intention to seek indemnity costs, that requirement is not necessary (citing Horseshoe Pastoral Co Pty Ltd v Murray Smith trading as South Coast Tile and Slate Co [1995] NSWCA 200; Ainger v Coffs Harbour City Council (No 2) [2007] NSWCA 212 at [29]). 4. The Applicant Council submitted that the following circumstances, taken together, should be seen as giving rise to an order for indemnity costs: • The Council's case established a clear prima facie breach of the EP&A Act, in the absence of any evidence to the contrary. • The Council had served orders under s 121B of the EP&A Act on Mr Saker requiring him to cease receiving waste (on 22 December 2016 and 1 March 2017), but the receipt of waste at the Property continued. • Mr Saker was present in person on 31 March 2017 when Preston CJ made directions, with Mr Saker's consent, requiring him to file points of defence and affiavits by 19 May 2017. • After the Council's evidence was served, Mr Saker retained a solicitor, and on 15 September 2017, through his Counsel, Mr Saker consented to a direction requiring him to provide Council with a Waste Removal and Remediation Plan by 8 November 2017. Prior to the date for that plan to be provided, Mr Saker's solicitors ceased to act for him. • The Council did indicate to Mr Saker that it was open to him to consent to the orders sought and avoid the expense of a hearing. Mr Saker did not avail himself of this opportunity. • Mr Saker has never filed a defence in these proceedings, or put any evidence before the Court to suggest that the Council was not entitled to the relief which it seeks. He also did not comply with the Court's direction to provide the Waste Removal and Remediation Plan. • Mr Saker did not appear before the Court (either in person or through a representative) following his solicitor ceasing to act, including at the final hearing of this matter. He has not offered any explanation for the manner in which he conducted the proceedings (including failing to comply with the Court's directions regarding his defence and evidence) nor for his failure to provide the Waste Removal and Remediation Plan. • Since Mr Saker has never made any formal admissions to the Court in relation to any part of the Council's case, the Council has been put to the expense of not only proceeding to the final hearing in his absence, but also demonstrating his awareness of the proceedings and the Council's evidence. 1. Overall, the Applicant Council argued, the Respondent's conduct has been unreasonable, both in relation to his actions and also the way in which he has participated in the proceedings, so as to warrant the making of an order for costs on an indemnity basis. 2. Alternatively, in the event the Court was not satisfied that the Respondent's conduct in the proceedings had been unreasonable from the commencement, the Applicant Council argued that the Court would at least find that his conduct had been unreasonable from the point when having failed to file any defence or evidence, but instead agreeing to a direction of the Court that he provide a remediation plan, he then did not do so (being 10 November 2017). Consideration 1. I have concluded that the Applicant Council has made out its case. The evidence placed before the Court in the form of the many affidavits identified earlier in this judgment at paragraphs [46] and [47] and then subsequently analysed, leaves no doubt that the Respondent either carried out, caused to be carried out or allowed to be carried out unpermitted development which was prohibited under the Blacktown LEP. That development involved the use of the Land to receive fill material consisting of building waste, soil, rocks and other material (the Fill Material) and then the undertaking of earthworks involving the spreading of the Fill Material. 2. With respect to all the evidence placed before the Court by the Applicant Council, I am satisfied that it constitutes an accurate, truthful, body of evidence. In this case it is particularly noteworthy that the Respondent did not bother to attend the hearing, nor did he bother to respond to any of the evidence now before the Court. If the Respondent was of the view that any aspect of the evidence was inaccurate or untruthful then he has had ample opportunity to contradict it. I am satisfied that the Applicant Council made every conceivable and reasonable effort to ensure that the Respondent was properly and fully informed of every stage of the proceedings, including being provided with copies of all the evidence and other documents that were placed before the Court. Earlier in this judgment at [25]-[37] I have summarised the extraordinary lengths that the Applicant Council went to in order to ensure the Respondent was fully informed of every stage and aspect of the proceedings and that he had every opportunity to respond and participate. By failing to respond, by failing to appear, the Court infers that the Respondent had nothing to say in rebuttal of the Council's case and had no alternative evidence to submit in contradiction of the material placed before the Court. 3. Despite the strength of the Applicant Council's evidence, in the absence of a contradictor, given the Respondent's decision to ignore the proceedings, counsel for the Applicant Council at no stage took the easy, short path to deal with the evidence and legal arguments in a summary fashion. On the contrary, Mr Norton of counsel exhaustively examined all the relevant material, exploring any contrary interpretation that might have been argued had the Respondent seen fit to be present. As a consequence, without a contradictor being present, the hearing took two full days to painstakingly examine all the evidence and the issues at large. 4. I am satisfied that, in the context of the Land being zoned RU4 Primary Production Small Lots under the Blacktown LEP, such development was prohibited and therefore was undertaken contrary to s 76B (now s 4.3) of the EPA Act. I am satisfied from my analysis of the LEP provisions in the context of the observations of the various deponents set out in the affidavits listed at [46] above, that there is no other appropriate description of the use, activities or development that has occurred on the Land other than the prohibited receipt and deposition of fill material and thereafter associated earthworks. 5. As said earlier, in the absence of a contradictor, given that the Respondent chose to absent himself from participation in the hearing before me, counsel for the Applicant Council responsibly raised possible scenarios that the Respondent might have put before the Court had he chosen to defend these proceedings. Taking a lead from some somewhat unclear, indeed obtuse, statements which I accept, on the evidence, were made by the Respondent to Council and EPA officers (see affidavit of Jason Roberts dated 28 April 2017 at [41]) to the effect that he at first arranged for the fill material to be brought on to the Land for flood mitigation works, the Applicant Council fully examined that possibility. 6. Analysing the evidence and submissions of the Applicant Council on this alleged flood mitigation works scenario, the Court reasons are as follows. First, the Respondent never sought a permit for works of that character, therefore the suggestion that flood mitigation was the underlying purpose of the fill works remains hypothetical. Secondly, noting that the Respondent at one stage said that he didn't know he needed a permit, I do not accept that the Respondent could be that naïve or ignorant for such a statement to have the slightest credibility. On the uncontested evidence before me, the quantity of fill brought onto the Land was significantly large by any lay measure, so much so that it would naturally give rise to the thought that permission might be required from one or other authority. Thirdly, a basic tenet of our Australian legal system is that ignorance of the law is no excuse. (See Ostrowski v Palmer (2004) 218 CLR 493, [2004] HCA 30 at [1]-[2]; Liverpool City Council v Tirnova [2017] NSWLEC 138 at [143]). Fourthly, it is simply too convenient, too self-serving, for the Respondent to vaguely suggest he intended to carry out flood mitigation works, without any credible indication before, during or after the filling that there was any good, potentially permissible, intent explaining the development. The Court has concluded that the Respondent, when "caught out" by Council and EPA officers, simply proffered the thought that entered his head that he might have an excuse for the unlawful works that he had obviously pursued and or allowed with intent. 7. The next explanation for the filling which requires examination was the suggestion by the Respondent in the course of the interview of him on site (again see affidavit of Jason Roberts dated 28 April 2017 at [41]) that the man Houcher, variously named, had actually been dumping the fill material on the Land contrary to the Respondent's wishes. Analysing the evidence and submissions of the Applicant Council, the Court in response reasons as follows. First, the Land is, and was at all material times, occupied by the Respondent and obviously was and is managed as he sees fit. The Respondent has the legal entitlement to exclude unwanted persons from entering, let alone damaging, his property. If there is any truth to the Respondent's reported statement, there is no plausible evidence that any such efforts to exclude Houcher from the Land occurred. Secondly, if there was any truth to the Respondent's suggestion that Houcher was to blame, there was always a multiplicity of options available to the Respondent by which assistance might have been obtained. Apart from seeking his own legal remedies, given the nature the dumping of fill which he suggested was unauthorized by him, effectively trespass, any citizen would know one can call upon the police in such circumstances, or the Council, or the EPA. In response to direct questions, the Respondent confirmed he had taken no steps. Finally, the Respondent made an admission that he organized the commencement of the process of filling, but then asserted that it continued beyond his expectation. The Court sees no distinction between fill material brought on to the Land at the beginning, middle or end of the exercise – it was all prohibited. As the Respondent admits to the commencement of the process, then he is culpable. Thereafter continuing to bring fill onto the land, either through his own efforts or via Houcher, merely aggravates and continues the contravention. In short, the Respondent's suggestion of an excuse, placing blame upon another person, lacks credibility and was likely a convenient self-serving response to the officers' questioning. 8. Further, there is other evidence which is inconsistent with the Respondent's suggestion regarding Houcher, of this man effectively standing over him, forcing him to accept the fill on the Land. The instance of thuggery recounted in Mr Brandao's affidavit of 21 April 2017, [7]-[27], is particularly telling. Mr Brandao's evidence gives an account of his inspection of the Land, in his capacity as the Environmental Health Officer of the Applicant Council, on 2 December 2016, on which occasion he observed earth-moving machinery and fill. Mr Brandao properly sought permission to enter the Land from a woman who was, by his observation caring for two young children [8], he having properly identified himself. He showed his ID card during this inspection [24]. At one point he was surrounded by four men who emerged from shipping containers on the Land. With offensive language and threatening conduct, Mr Brandao was forced off the Land, despite showing his official ID. These men forced Mr Brandao to delete his inspection photos from his smartphone [20], threatening to take his phone from him [21]. I consider this conduct to be nothing other than thuggery. As Mr Brandao left the Land he observed the men verbally abusing the woman with the young children, using offensive language, demanding an explanation as to why she allowed Mr Brandao on the Land [26]. Other evidence (Jason Roberts affidavit sworn 28 April 2017 at [37]) confirms that the Respondent's girlfriend, Jade Bruce, lives on the Land. Inferentially, I conclude that the Respondent was one of the four men, who saw fit to threaten Mr Brandao and afterwards abuse the woman on the Land. Given that men were confronting this woman, the Court infers that this woman was most probably the Respondent's girlfriend living on the Land and that one of the four men was the Respondent himself. None of this conduct is consistent with the picture of the Respondent blithely standing by as another – Houcher – dumps waste fill on the Land, rather it depicts the Respondent as being a man responsible for and/or knowingly complicitous with the conduct of others bringing the fill onto the Land. 9. Although more is not required, once I am satisfied that the dumping of fill material on the Land occurred and that there were associated earthworks – which I am, in order to find that the Respondent did contravene s 76B of the EPA Act (now s 4.3), in considering what relief is appropriate, it is instructive that I consider the consequences of the Respondent's breach. I am satisfied that the development so described did and would have caused environmental harm. In so concluding, I accept the evidence of Dr Christopher McLean, as set out in his affidavit affirmed 4 May 2017, described earlier in this judgment at [69]-[77]. As explained earlier, Dr McLean is an ecologist who is the Senior Biodiversity Officer of the Applicant Council. Inter alia, the following conclusions reached by Dr McLean are concerning and go to establishing the seriousness of the Respondent's conduct. First, with reference to Dr McLean's affidavit at [17], the vegetation at the rear of the Land falls within the description of endangered ecological community (EEC) River-Flat Eucalyptus Forest on Coastal Floodplains of the New South Wales Coast, Sydney Basin and South East Corner Bioregions (RFEF). Secondly, in the context of the vegetation comprising the RFEF covering approximately 4,000m2 of the Land prior to filling, see [29], an estimated 3,000m2 of the EEC had been destroyed and covered by the fill [31]. Thirdly, the depositing of the fill material on the Land has caused fragmentation of the EEC on the Land and adjoining properties [36], creating a gap with no canopy or understorey vegetation. Fourthly, the remnant vegetation to the south of the Land has become isolated with impacts on fauna movement [36]. Fifthly, the fill material has reduced foraging habitat potential for threatened fauna species [37]. Sixthly, due to the fill being placed into South Creek and Stoney Creek, the sediment has caused water pollution through increased turbidity and high levels of total suspended solids [38] and the unconsolidated sediments in the creeks can affect aquatic fauna assemblages, lead to fish kills, result in less suitable habitat for native species and causes a habitat more prone to invasive exotic pest species [39]. These impacts are to be considered in the context of South Creek being assessed prior to the fill being dumped as being one of the waterways of the LGA which was in a better environmental conditions, receiving a B or 'good condition' assessment within ANZECC guidelines on 85% of occasions [40]. 10. Also going to the seriousness of the Respondent's breach of the law, influencing the exercise of the Court's discretion when determining the appropriate relief to be granted, I accept the evidence of Mr Chris Thomas, a civil engineer with expertise in, relevantly, flood management. Earlier in this judgment at [80]-[83] I set out Mr Thomas's evidence. Amongst other consequential issues, arising from the fill material being dumped on the Land, identified by Mr Thomas in one scenario, amongst others, is the likely increased flood levels that will be experienced up to 500m upstream of the Land, with as many as 43 properties likely to experience increases in 1% AEP flood levels of 30mm or more. Appropriate Relief 1. The Applicant Council seeks a declaration and various orders requiring the Respondent to attend to various requirements. First, with respect to the request to the Court to make a declaration that the Respondent breached the law, when additional orders are concurrently sought, the Court must always consider whether there is utility in making the sought declaration. In Great Lakes Council v Lani Preston CJ set out at [20]-[25] a number of considerations with respect to the making of declarations of statutory breach by the Court. In Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4), at [15]-[23], Pepper J decided that it was, in the circumstances before her, appropriate to grant declaratory relief when a clear public pronouncement was required. 2. In my recent judgment in Marshall Rural Pty Ltd v Basscave Pty Ltd (No 3) [2018] NSWLEC 62, I had cause to examine these and other authorities regarding the making of a declaration in circumstances where breach has been established and consequential orders, in addition to a declaration, are sought. At [36] and then [38] I said: There is no doubt that it is within the jurisdiction of the Court to make the declarations as sought by the parties. That is not in issue: the real question is whether the Court's discretion should be exercised to make the declarations. The issue is whether there is utility in making declarations. In essence, the case law referred to in this judgment goes to the question of utility of making a declaration. That is the focus in the case law I have cited: in short, it is considered inappropriate to make a declaration if there is no utility in doing so. So in the case of Pepper J's decision in Hill Top Residents (No 4) the utility of making declarations was identified in [23] in the following terms: "in order to achieve the purpose of exposure and denouncement of the unsanctioned conduct, mere public pronouncement in a published judgment alone will not, in my opinion, suffice". [38] However, it is with respect to the "public pronouncement" aspect of a judgment, discussed at [25] of Lani that I discern a distinction between the decision of Preston CJ in the circumstances before him and the circumstances before me in this case. In this case there is agreement between the parties that the declarations should be made, whereas in Lani no such agreement had been reached. Preston CJ confirmed that a legitimate purpose of civil enforcement proceedings is for there to be a finding by the Court and, through its judgments, a public pronouncement that a breach of the law has occurred. Returning to my use of the word "utility" above when highlighting what I believe to be the underlying principle, tritely, that the making of declarations must serve some purpose, it is instructive that his Honour went on to say that the public pronouncement that a breach of law has occurred can be achieved by the Court making findings in the judgment of the Court, which, he reminded the reader, is of course a public document. He said that the Court's judgment will suffice to publicly expose and denounce on behalf of the community the identified unlawful behaviour. 1. In this case I am faced with a Respondent who has chosen to ignore the proceedings, despite being served with all material at all stages of the proceedings leading to and including the final hearing. There have been repeated efforts by the Applicant Council to "engage" with the Respondent, all to no avail. The hearing had to proceed in his absence, all within a context when officer interviews with the Respondent revealed that he allegedly thought he had excuses or he didn't know the legal requirements. Yet the Respondent made no effort to press what "excuse" he may or may not have thought he had. 2. Although I have concluded that the Respondent's excuses lack credibility, the Court needs to categorically reinforce that the law has been breached and that any of the alleged excuses have no veracity. If the conduct of the Respondent to date is any indicator, then it is highly unlikely the Respondent will bother to read the judgment, which of necessity has had to comprehensively examine all issues, the law and all the evidence. Accordingly, in order to facilitate the Applicant Council's future communications with the Respondent, an abbreviated statement of the law is required, hence the making of the declaration has utility in the circumstances of this case. Although the Court will ensure, in the usual course, that the judgment is sent to the Respondent, it is anticipated that the Applicant Council will be relying on the orders, as concisely expressed, as being the best mode of communicating the outcome of these proceedings to the Respondent in whatever future dealings they must have with him. 3. Accordingly, I have concluded that the Court should make the declaration sought, together with all the consequential orders that the Applicant Council has sought. Costs 1. Finally, it is necessary that I consider what orders as to costs the Court should make. Being Class 4 proceedings and with the Applicant Council having been entirely successful, in the usual course the Council is entitled to an order in its favour requiring the Respondent to pay its legal costs. The question remains whether, beyond an order for costs on the usual basis, the Applicant Council is entitled to its costs on an indemnity basis. 2. Earlier in this judgment at [100]-[106] I have set out my examination of the Applicant Council's case upon which it seeks an indemnity costs order against the Respondent. I consider there is a sound basis for such an order that the Respondent pay all the Council's costs on an indemnity basis. The approach that the Respondent has taken in these proceedings has put the Applicant Council in a position where it has had to take far more steps, go to far greater effort, all at an extra cost, to bring these proceedings whilst maintaining strict adherence to conduct which would ensure that principles of justice and fairness were met. 3. At interlocutory stages of the proceedings during 2017, for instance before me on 11 August and 25 August 2017 and before Moore J on 15 September 2017 the Respondent was represented by legal counsel. At earlier stages, such as before Preston CJ on 31 March 2017 and before Robson J on 16 June 2017, the Respondent appeared in person. Thereafter, following the filing of a Notice of Ceasing to Act by Ghobriel Legal on 6 November 2017 which had followed a Notice of Intention to File a Notice of Ceasing to Act dated 12 October 2017, the Respondent has, effectively ignored the proceedings. There have been multiple opportunities for the Respondent to put his case, in circumstances where he has always been fully appraised of the basis of the proceedings and the evidence against him. There were multiple opportunities for the Respondent to, for instance, agree to carry out remediation works in accordance with a plan, such as that the subject of orders 2 to 6 made pursuant to this judgment. Indeed, my own note on the Court file as List Judge on 25 August 2017, notes the assurance of the Respondent's then counsel that the proceedings may settle. 4. In conclusion, for all the reasons expressed by counsel for the Applicant Council, as set out earlier in this judgment at [104], it is appropriate that I make the order that the Respondent pays the Applicant Council's costs on an indemnity basis. ORDERS 1. The Court declares: 1. That the First Respondent has carried out or permitted the carrying out of development on Lot 134 in Deposited Plan 32148, known as 50 Shane Park Road, Shanes Park, New South Wales 2747 (Land) being the use of the Land to receive fill consisting of building waste, soil, rocks and other material (the Fill Material) and undertaking of earthworks involving the spreading of the Fill Material, such development that was on land zoned RU4 Primary Production Small Lots, being prohibited by virtue of the Blacktown Local Environmental Plan 2015, such prohibited development being undertaken contrary to s 76B (now s 4.3) of the Environmental Planning and Assessment Act 1979 (EPA Act). 1. The Court orders: 1. Pursuant to s 9.46 (formerly s 124) of the Act, that the First Respondent, by himself, his servants or agents be restrained from using the Land to receive Fill Material, and carrying out works being earthworks involved in the spreading of fill on Land zoned RU-4 Primary Production Small Lots. 2. Pursuant to s 9.46 (formerly s 124) of the Act, the First Respondent within 14 days of the date of the order, to engage a suitably qualified person to prepare a Waste Removal and Remediation Plan (the Remediation Plan) setting out the nature of the impacts caused by the importing, depositing and spreading of Fill Material, onto the Land and a plan to remove the imported Fill Material, and remediate the Land to the condition of the Land prior to the importing and spreading of the Fill Material. 3. Pursuant to s 9.46 (formerly s 124) of the Act, that the First Respondent must: 1. provide the Remediation Plan to the Applicant Council for approval within 42 days of the date of this order; and 2. if the Applicant Council advises the First Respondent that it does not approve the Remediation Plan, the First Respondent must, within 21 days of being so advised, submit an amended Remediation Plan which addresses any issues communicated by the Applicant Council regarding matters that should be addressed in the amended Remediation Plan. 1. Pursuant to s 9.46 (formerly s 124) of the Act, the First Respondent within 7 days of the approval of the Remediation Plan by the Council (the Approval Date) to engage a suitably qualified person to undertake remediation works in accordance with the approved Remediation Plan 2. Pursuant to s 9.46 (formerly s 124) of the Act, the First Respondent to: 1. remove from the Land all Fill Material imported to the site; 2. remediate the Land in accordance with the Remediation Plan; and 3. cause the Fill Material to be transferred to a place that can lawfully receive that material for disposal within 90 days of the Approval Date. 1. Pursuant to s 9.46 (formerly s 124) of the Act, the First Respondent to: 1. procure a receipt in relation to each consignment of the Fill Material transported from the Land, each such receipt to be issued by the occupier of the place to which the Fill Material has been transferred for the purposes of this paragraph, and each such receipt to identify that place to which the Fill Material has been transferred and the quantity of Fill Material transferred for the purposes of this paragraph; and 1. provide each receipt procured for the purpose of order 6 to the Applicant Council within three days of each transfer. 1. The First Respondent to pay the Applicant Council's costs of these proceedings as agreed or assessed on an indemnity basis. ********** 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: 10 May 2018