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The 25-year saga that saw a golf course remodelling project at Mangrove Mountain transformed into a regional waste facility within the Central Coast’s water catchment does not appear to have been fully resolved by the latest Land and Environment Court judgement.
By Jackie Pearson
Justice Rachel Pepper’s judgement ran to over 160 pages, 551 paragraphs and took from November 2020 to March 25, 2022 to finalise and make public.
She ordered that the landfill operator, Verde Terra (VT), may “lawfully carry out the works ordered by the Court on 29 August 2014…without the need to obtain further development consent”.
This appears to be a win for VT and a loss for Central Coast Council with the matter of costs to be dealt with separately.
Council has 28 days to “appeal” or request the LEC vary the terms of the latest orders.
The Point has asked Verde Terra’s legal representatives, Ashurst, to comment as we have not been successful in tracking down Verde Terra and wish to make sure they have a right of reply to the information included in this article.
We have been told that Bingo sold the “asset” prior to being listed on the stock exchange.
Bingo announced its IPO in April 2017 and, as such, did own the landfill at the time that some of the matters reported took place.
Justice Pepper is critical of Central Coast Council for waiting four years to bring its concerns about the 2014 orders to the attention of the LEC and dismisses many of its legal arguments.
“Further and in the alternative, the VT parties submitted that the Council’s conduct in making allegations of illegality, irregularity or impropriety approximately five years after the making of the 2014 consent orders, allegations which could and should have been raised at the time and in circumstances when the VT parties and third parties had incurred substantial financial expenses and liabilities as a consequence of the making of those orders, amounted to unjustifiable oppression, and therefore, an abuse of process.”
Pepper said her judgement was the culmination of a “long running and increasingly complex dispute”.
The judgement considered whether: consent orders made in 2014 could be set aside on the grounds of illegality, improper purpose or being contrary to public policy; whether variations to the environment protection licence (EPL) issued by EPA modified the development consent; and whether variations made by the EPA to the EPL were invalid.
At the heart of the proceedings was whether orders made in 2014 under the Environmental Planning and Assessment Act 1979 (EPAA) could or should be set aside and the judge decided there were no grounds for setting aside the orders.
Those orders, which were made between the former Gosford City Council and VT, included the agreement to accept 1.14 million cubic metres of fill at the Mangrove Mountain Landfill Golf Course site when the original 1998 consent allowed for 240,000 cubic metres of waste.
During this latest LEC case, which ran from October 2019 to November 2020 with over 30 hearing dates, Verde Terra accepted that breaches of the 1998 consent had occurred but during the period when the landfill was controlled by another operator.
The 2014 consent orders were said to result “in remediation of the site” and also to achieve “appropriate controls and monitoring during the construction of the golf course to minimise risk of environmental harm”.
With one exception, those orders also stated that “any future amendment will only occur with the consent of Gosford City Council”.
Under the 2014 orders, waste was supposed to be removed, or shifted into lined cells, the waste mound capped and the long-promised remodelled 18-hole golf course completed within 10 years.
A new lined cell (Cell W) was to be completed by May 2015.
“There was no requirement expressly stipulated in the 2014 consent orders for VT (or any other entity) to obtain further development consent in order to carry out the works specified by the orders,” Justice Pepper ruled.
“It was not in dispute that prior to the making of the 2014 consent orders, the Council sent its own waste to the landfill on the land,” she said.
VT now has the court’s permission to carry out the 2014 court orders but that is where things get complicated and the landfill’s future less certain.
Following the 2014 court orders VT revised the site’s Landfill Environmental Management Plan (LEMP) and Leachate Management Plan (LMP).
“The 2014 LEMP and 2014 LMP were not consistent with the 2014 consent orders,” Justice Pepper found.
The final landform and golf course layout was materially different from the landform and the golf course layout referred to in the 2014 consent orders.
The revised LEMP “included major landform changes to the non-licensed (or non-regulated) area of the land” and “proposed a much greater area and volume of fill in the southern section of the golf course”.
For example, the proposed final landform involved a net volume of fill above the design finish levels in the 1992 EIS of between 1,661,379 cubic metres to 1,771,759 cubic metres [and] volume does not, moreover, account for the void space below ground of the excavated cells.
According to Justice Pepper, “the considerably enlarged scale of the proposed 2014 development … was obvious during the Court’s inspection of the land.”
VT accepted that Council never formally approved the 2014 LEMP and LMP.
Justice Pepper found that “Development for the purpose of operating a much larger independent waste disposal facility of the nature and scale presently contemplated by the VT parties, that is, as manifested by the subsequent iterations of the 1997 LEMP upon which they rely, exceeds the development that is authorised by the 1998 consent”.
“I accept that the evidence discloses, as at the making of the 2014 consent orders, that the VT parties intended to use the land primarily as a waste disposal facility, with the reconstruction of the golf course being secondary or subservient to this purpose.
“Waste disposal was the core activity of the VT companies and the Bingo group, whose business interests, personnel and accounting practices were all directed to this purpose.
“This is very different from the landfilling proposed for the purpose of remodelling the golf course as authorised by the 1998 consent.
“It is also very different from the works contemplated by the 2014 consent orders as those orders are properly construed.”
This conclusion appears to pave the way for Central Coast Council to require a new development application if Verde Terra intends to operate the site beyond the bounds of the 2014 LEC orders.
According to Justice Pepper: “The Court has no power to order works that go beyond what is necessary to give effect to the statutory purpose contained in s 124 of the EPAA.
“For example, the Court has no power pursuant to s 124 of the Act to order some other use of the land not approved by the original consent. To do so would be to exceed the jurisdiction of the Court.
“These proceedings are concerned with the validity of the 2014 consent orders and only those orders.
“If works have been, or are proposed to be, carried out outside the scope of those orders, for example, pursuant to any impermissible revision of the Amended 2013 LEMP and 2013 LMP then they will not be authorised, and can be injuncted.
“If the orders have not been complied with, then the Council can seek to enforce them.
“The Council cannot, on the one hand, resist doing so on the basis that the 2014 consent orders are vague and uncertain, while on the other hand, relying upon the works described therein to contend that they fall outside the scope of the 1998 consent orders and do more than merely remedy the breach of that consent.”
The Land and Environment Court is clearly throwing it back to Council, as consent authority, to do its job and is critical of its delay in bringing matters back to the LEC after VT’s attempts to move the LEMP and LMP beyond the bounds of the 2014 orders.
Between 2014 and the subsequent 2019 LEC actions, VT attempted to vary its Environmental Protection Licence (EPL) seeking permission to carry out waste processing and waste storage at the site, which had not been part of any development consent.
The EPA asked for more information including details of the proposed waste processing and waste storage, water pollution, stormwater, leachate, groundwater and monitoring.
Council corresponded with VT and the EPA about the differences between the 2014 court orders and VT’s amended LEMP and LMP.
In April 2016 the EPA’s 1996 environmental guidelines for solid waste landfills were superseded by the 2016 Landfill Guidelines which prescribed more demanding minimum standards, including landfill cell lining for general solid waste.
The change to the guidelines may provide Council with another reason to require a fresh DA for the landfill.
According to Justice Pepper: “In any event, the 2014 consent orders explicitly permit an additional approval to be obtained under order 3(b). The Court, in Class 1, can consequently grant a new development consent which accommodates the 2016 Landfill Guidelines.”
Further amendments to the LEMP and LMP were submitted to the EPA in 2016 and 2017 which proposed material changes that were not contemplated under the 2014 court orders.
In 2017 the EPA started to correspond with Council stating that it believed it could accept changes to the LEMP and LMP “subject to clarification and conformation from Council that a valid development consent is in place for the proposal”.
This led to Council stating that that the operators seek either a ‘fresh’ development application or an application to modify the existing consent under the Environmental Planning and Assessment Act.
In 2018 the EPA refused an application from VT to vary its Environmental Protection Licence.
In December 2019 VT submitted a 2018 development application with a Statement of Environmental Effects stating the “Need for the Proposal” as for the development of a regional landfill.
It included the construction of two additional large sediment basins with linking overflow channels.
According to the judgement the EPA Regulations require the development must constitute alterations and additions to existing development and that, in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development.
Again, this part of the judgement appears to give Council, as consent authority, fresh grounds for requiring a DA from VT.
“The Council submitted that even giving the 2014 consent orders their fullest possible effect, the development currently proposed by the VT parties as disclosed by the evidence fell outside the scope of those orders because, …there is no authorisation for development on the land for the purpose of a waste disposal facility of the magnitude now proposed by the VT parties,” the judgement said.
“The latter development falls outside the terms of the 2014 consent orders and cannot be carried out without further development consent which requires an EIS,” Council argued during the latest case.
The judgement also states that the power to modify the operations of a waste facility rests exclusively with the EPAA and the consent authority, which is Central Coast Council, further suggesting grounds for a fresh development application or amendments to the 2014 court orders.
The judgement gives insight into the extent of the landfill and waste facility now being proposed by VT.
“The dimensions of cells W, X, Y and Z in the licenced area total 4.18 ha with excavation below the existing ground surface of a void space of 884,659 cubic metres and an excavation below existing ground surface to depths of approximately 30 m and 41 m
“In the regulated area the excavation of these cells is into the Hawkesbury sandstone bedrock intersecting with the Ourimbah Creek drinking water catchment in a location overlying an aquifer used for drinking water.”
The judgement included a comprehensive history of the golf course remodelling saga including the sale of the land by the RSL to Mangrove Properties for the modest sum of $750,000.
The case clarified the connections between the Tartak family, Bingo and the Mangrove Mountain Landfill Golf Course.
We learn that Tony Tartak’s stated motivation for the purchase of the land was to give him more control of the subject site and that he would not have allowed this transaction to proceed had the 2014 consent orders not been made.
According to the judgement, the VT companies were operating as part of the Tartak family waste industry business (which included the Bingo group until Bingo Industries Pty Ltd was floated on the stock exchange in May 2017).
In July 2011 Tony Tartak purchased VT for $3M. His stated principal motivation in doing so was that the company had a contractual right to landfill on the Mangrove Mountain site.
“I accept that VT was not purchased in order to use the land for the purpose of a golf course,” Justice Pepper said.
Magrove Mountain locals have been reporting massive leachate runoff at the landfill during the current rains and 85 per cent of the current landfill is unlined so leachate can escape into the aquifer.
What can you do?
Be an active citizen in your local government area. Take an interest in the development applications your Council approves. Write submissions if you don’t agree with a DA or you think a rezoning of land (planning proposal) is inappropriate.
Most of us wait until something happens over our back fence or in our street before we become exercised or angry enough to take an interest in local government. It is actually the level of government, out of the three that exist in Australia, that has the greatest impact on our day to day lives.
It has the power to authorise trees to be cut down, pets to be impounded and that quaint little cottage next door to be turned into a medium density block of flats.
Go to a council meeting or watch online.
Maybe even run for office if you are so inclined.
The Point wishes to acknowledge the work of Stephen Goodwin (passed), Marilyn Steiner, Margaret Pontifex, Danny Wilmott, ABC journalist Marylouise Vince, and many others for their work in keeping this issue in the public domain for decades.
