A recent decision of the NSW Land and Environment Court (LEC) in Lismore City Council v Ihalainen (No 2)  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.
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.
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.
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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Lismore City Council v Ihalainen (No 2)  NSWLEC
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...
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Proclamations commencing Acts
City of Sydney Amendment (Elections) Act 2014 No 50 (2015-41) — published LW 6 February 2015
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