Developer SAF Developments has been ordered to pay $96,000 in total after pleading guilty to offences relating to the transport and deposit of fill material into a backyard swimming pool, contrary to provisions of the EP&A Act and POEO Act (see Georges River Council v SAF Developments Pty Ltd).

While undertaking construction at a site in South Hurstville under a complying development certificate (CDC), an agreement was struck between a project manager of SAF and a nearby resident to use excavated fill from the development to fill in an empty pool, at no cost. It was a condition of the CDC that all waste material from the site was to be disposed of at a waste management facility. This is a common condition imposed on complying development certificates and is to be contrasted with other standard conditions that require excavated soil to be disposed of in accordance with any requirements under the Protection of the Environment Operations (Waste) Regulation 2005 (which may not require disposal at a waste management facility).

After failing to comply with several development control orders issued by the Georges River Council requiring the removal of the fill, SAF was charged with:

• carrying out a development contrary to the conditions of its CDC in failing to deposit the excavated fill at a licensed waste facility, in breach of section 4.2(1)(b) of the EP&A Act, and
• unlawfully transporting and depositing waste, in breach of section 143 of the POEO Act.

SAF had previously been convicted on four occasions for similar planning offences.

The Court found that, while the conduct was an affront to the integrity of the planning system and sought to thwart the objectives of the POEO Act, the environmental harm caused was minor and temporary.

In its judgment, the Court rejected Council’s arguments that the actions of the project manager should be attributed to that of the company, as it was not established that they had any role in the operations of the company and functioned only as an employee, despite holding a degree of control over the project. There was also no evidence of financial gain in committing the offences.

SAF was ordered to pay $26,000 in fines and $70,000 for the Council’s legal costs and a publication order was also made.

The case is an important reminder of the need to comply with the specific requirements of any development consent when managing excavated material or waste from a development site.

Jennifer Hughes, Madeleine O’Connor

This material has been produced by Beatty Hughes & Associates for the purposes of providing general information and does not constitute legal advice.