A recent decision of the NSW Land and Environment Court (LEC) in Lismore City Council v Ihalainen (No 2) [2014] NSWLEC 198 (Ihalainen) has highlighted the importance of careful and precise drafting for consent authorities and prosecutors, particularly when drafting conditions of consent and framing charges.
The defendant pleaded not guilty to three charges against section 125 of the Environmental Planning and Assessment Act 1979 (EP&A Act) and one charge against section 120 of the Protection of the Environment Operations Act 1997 (POEO Act). The property on which the offences occurred was owned by the defendant, who had obtained development consent for a 'dwelling'. The alleged offences related to the construction of an unsealed fire trail from the road to the proposed dwelling.
Some of the charges which, ultimately, were unsuccessfully made out by Lismore City Council (Council), included:
Failure to install sedimentation controls
The Council alleged that the defendant breached section 76A of the EP&A Act by failing to install sedimentation controls prior to works commencing on site as required by the development consent.
The LEC held that the condition did not require sedimentation controls to be installed prior to commencement of works. Rather, the condition provided that the critical stage inspections of the dwelling could not proceed until sedimentation controls were in place. Therefore, because the condition failed to prescribe that the sedimentation controls were to be in place before work commenced on the fire trail, the charge was not made out.
Alignment of the fire trail
The Council alleged that the defendant carried out development other than in accordance with the development consent by failing to construct the access road as shown on the 'approved' site plan. The LEC drew on several principles established in previous cases when incorporating extrinsic material into development consents, for example:
- a development consent, being a public document operating in rem for the benefit of third parties (that is, it attaches to the land), should generally be construed without reference to extrinsic evidence; and
- a document attached to a development consent or referred to in it for the purpose of identifying or describing something dealt with in the consent will be expressly incorporated in the consent.
The LEC found that there was reasonable doubt as to whether the site plan was enclosed with and incorporated into the development consent. This is because the plan was not referenced in the consent and there was doubt surrounding whether it was actually physically attached to the consent.
In any event, the LEC determined that the site plan was indicative in nature and there was no obligation on the beneficiary of the development consent to follow that alignment.
Water pollution
The defendant was also charged with a pollution of water offence under section 120 of the POEO Act. This was on the basis that, by introducing soil into the waters, it changed their physical, chemical and biological condition. The LEC held that the prosecutor's case asserted only a change to the physical condition of the waters and not to its chemical and biological condition of the waters. As such, the pollution of waters offence was not made out.
Key lessons
Drafting conditions of consent
Ihalainen serves as a reminder to consent authorities of the importance of carefully drafting conditions of consent. In Ihalainen, the LEC pointed out that the lack of clarity or certainty in the development consent was the responsibility of the Council as the consent authority.
The importance of good drafting is further highlighted when considering that a development consent can continue indefinitely because it attaches to the land and therefore can bind third parties. As such, development consents should be drafted objectively.
Drafters should therefore consider:
- has the requirement or obligation been clearly expressed?
- has the timing for compliance with the condition (if necessary) been clearly expressed?
- to what standard is the work to be carried out? Should the condition include a reference to industry accepted practices or Council policies?
In Ihalainen, the LEC also gave some useful guidance to ensure that approved plans are incorporated into a consent. To avoid confusion, the LEC advised that consents should expressly identify each plan, stamping each plan as 'approved' and cross-referencing the plan to the development consent.
Drafting charges
Prosecutors should also consider the importance of drafting charges and whether each element of the charge can be made out. For example, in Ihalainen, because the charge was only concerned with failure to 'install' prior to the commencement of works, the charge was dismissed as works had not commenced on the dwelling. Similarly, the way in which the pollution of water charge was drafted meant that it was not made out by the prosecutor.
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Cases
Lismore City Council v Ihalainen (No 2) [2014] NSWLEC
198
ENVIRONMENTAL OFFENCES - three charges of offences against s 125
Environmental Planning and Assessment Act 1979 of carrying out
development on a rural property the subject of a development
consent other than in accordance with the consent - one charge
under s 120 of the Protection of Environment Operations Act 1997 of
polluting waters by introducing soil into a natural watercourse -
all charges relate to construction of a fire trail required by a
condition of the consent - whether a condition of the consent
required sediment control measures to be put in place prior to
construction of the fire trail - whether the consent required
alignment of the fire trail as shown on a site plan - whether the
site plan was enclosed with and incorporated in the consent as an
approved plan - whether a condition of the consent requiring the
fire trail to comply with Section 4.3.3 Planning for Bushfire
Protection 2001 required, during the construction of the fire
trail, the installation and maintenance of appropriate drainage and
erosion controls, that the fire trail be maintained in a
serviceable condition by the owner of the land, and whether it must
be trafficable in all weather conditions-whether the defendant
polluted the waters of a Creek by causing sediment-laden stormwater
runoff from the fire trail construction to enter the waters of a
creek so as to change the physical condition of those waters.
More...
Dewhirst v Department of Family and Community Services
[2015] NSWCATAD 13
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review of decision of agency to refuse access to government
information sought – access to notifications made to the
respondent about a specified child that named him – whether
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Schedule 1 of the Government Information (Public Access) Act
applied - allegation notifications were not made in good faith
Delegate of the Secretary of the respondent issued a certificate
under subsection 29(1A) of the Children and Young Person (Care and
Protection) Act that the notifications were a report to which that
section applied - whether the Tribunal can look behind the
certificate
Costs – whether the respondent's conduct gave rise to
special circumstances that warranted the making of an order for
costs
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Legislation
NSW
Proclamations commencing Acts
City of Sydney Amendment (Elections) Act 2014 No 50 (2015-41)
— published LW 6 February 2015
Local Government Amendment (Elections) Act 2014 No 80 (2015-42)
— published LW 6 February 2015
Regulations and other miscellaneous
instruments
Criminal Assets Recovery Amendment (Interstate Restraining Orders)
Regulation 2015 (2015-43) — published LW 6 February
2015
Local Government (General) Amendment (Elections) Regulation
2015 (2015-46) — published LW 6 February 2015
Parliamentary Remuneration Amendment (Leader of the Opposition)
Regulation 2015 (2015-40) — published LW 4 February
2015
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