Ajvadi v Wicks

What is the Appropriate Relief?

1. Since the surrender of the 2022 consent, the only issue remaining before the Court concerned what, if any, orders should be made pursuant to s 9.45(1) of the EPAA to "remedy or restrain" the acknowledged breach of the EPAA by Wicks having carried out the works at No 40. Section 9.45(1) of the EPAA provides that: 9.45 Restraint etc of breaches of this Act (1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.
2. The grant of the 2024 consent reduced even further the scope of the contested issue before the Court. Accordingly, the parties submitted that the Court should grant the following relief: 1. a declaration that Wicks carried out the works comprising construction of the retaining wall without development consent in breach of s 4.2(1)(a) of the EPAA; 2. an order for those parts of the wall not approved to be retained in the 2024 consent to be demolished and removed in accordance with the conditions of that consent. This order was proposed to be stayed for a period of four weeks to allow Wicks to attend to any steps required before a construction certificate can be obtained to commence demolition works. The order, when it comes into operation, will require the completion of those demolition works within 90 days; 3. an order that Wicks complete the deck, stairs and associated 1.7 m privacy screen at the rear of No 40, in conformity with the conditions of the 2024 consent. Again, this order is proposed to be stayed for a period of four weeks to allow for Wicks to attend to any steps required before a construction certificate can be obtained to commence the works. The order, when it comes into operation, will require the completion of those construction works within nine months.

Declaratory Relief

1. Wicks does not oppose a declaration being made to the effect that the construction of the retaining wall and the placement of infill was carried out in breach of s 4.2(1) of the EPAA.
2. The applicable principles relating to the grant of declaratory relief are well established (see Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1 at [20]-[25], Friends of Glebe Wetlands Incorporated v Littlewoods Civil Contracting Pty Ltd [2022] NSWLEC 21 at [12]-[16] and most recently in Sader v Elgammal (No 2) [2024] NSWLEC 4 at [25]). In PAG Services Pty Ltd v Byron Shire Council [2023] NSWLEC 40, Pritchard J summarised them as follows, which I respectfully adopt and apply in this instance (at [73]-[75], footnotes omitted): [73] The Court's correspondence with the parties (see above at [68]-[71]) arose from a concern that there was no proper contradictor in circumstances where Council indicated that it "takes no position on whether or not the development consent has lapsed". [74] In Penrith City Council v Dincel Construction System Pty Ltd and Gaonor Pty Ltd (OSSM case), Robson J observed as follows: 14. It has been held that a condition precedent to granting declaratory relief is that, inter alia, the plaintiff must be able to secure a proper contradictor, that is, someone presently existing who has a true interest to oppose the declaration sought: Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 and Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972] HCA 61 at 438. 15. In Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56 (MSY), the question that arose was whether, having regard to the consent of the parties to the granting of the declaratory relief proposed, the primary judge was prevented from granting that relief. Put another way, the question was whether consent to the relief sought precluded the respondent from being a "proper contradictor". The Full Federal Court (Greenwood, Logan and Yates JJ) held, at [30], that the correct position could be found in the judgments of Dawson J in Oil Basins Ltd v Commonwealth of Australia (1993) 178 CLR 643; [1993] HCA 60 at 648 and French J in IMF (Australia) Ltd v Sons of Gwalia Ltd (administrator appointed) [2004] FCA 1390; (2004) 211 ALR 231 at [47] . The Court stated that if a party had a true interest in the plaintiff's claim, even if they saw that interest served by not opposing the relief claimed, that would be sufficient to render them a "proper contradictor": MSY at [16]. Similar sentiments were expressed in Zetting v Müller [2017] NSWSC 659 and Re Beechworth Land Estates Pty Ltd (admins apptd) [2017] NSWSC 1447 . [75] In this case, there was no proper contradictor, active or inactive. It is true that the Court has granted declaratory relief in circumstances where there was no contradictor: see Zaymill Pty Ltd and Maksim Holdings Pty Ltd v Ryde City Council (Zaymill), a case relied on by Council, and Donvito v Hawkesbury City Council (Donvito). It is also clear that the Court's jurisdiction to make a declaration is a "very wide one", limited only by the Court's discretion. Whilst the jurisdiction may be ousted by statute, the right of a subject to apply to the court for a determination of their rights will not be held to be excluded except by clear words.
3. Turning to the facts of this case, at all material times Wicks has been a proper contradictor having regard to his interest in the outcome of the proceedings, his active participation in the litigation, and his initial resistance to the remedial orders sought. The area of dispute between the parties has been directed to how to best remediate No 40. In these circumstances, a declaration affirms the Court's approval of the negotiations between the parties that have reduced the issues in dispute and have resulted in the preparation of agreed orders.
4. Another relevant factor is whether granting the declaration has the practical effect of marking disapproval by the Court of the conduct leading to the breach of the EPAA (Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 at [15]-[23]). In my view it does.
5. As stated above, the retaining wall was constructed without development consent first being obtained as required. In these circumstances, the failure of Wicks to obtain consent prior to the carrying out of works undermines the regulatory system and fails to promote the orderly development of land, which is contrary to the express objectives of the EPAA. Moreover, pre-emptory action deprives the consent authority of the opportunity to assess the environmental impacts of proposed development and it denies neighbours the opportunity of making submissions on perceived likely impacts.
6. It is therefore appropriate for the Court to make the declaration sought because it marks the disapproval of the Court over the conduct of Wicks and sends a message to the community that people should make inquiries and, when appropriate, obtain professional advice on whether works require development approval.

Remedial Orders

1. Because the 2024 consent does not provide for any specific timeline for works to be carried out, it is open to the Court to order that the demolition of the unapproved parts of the wall are to be carried out promptly within a specified timeframe. Such an order will serve the purpose of providing an appropriate remedy for the admitted breach of the EPAA and provide timely relief to the applicants. A copy of the approved plan identifying the parts of the wall to be demolished and the parts to be retained is below:
2. In Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 (at 339-341) guidance was provided in respect of the exercise of the Court's discretion to make the proposed remediation orders. The Court made similar orders in Wollongong City Council v Matthew Dominic Fikkers [2023] NSWLEC 52, granting both declaratory relief and remediation, albeit narrower in compass than those sought, because a consent had been granted which regularised some, but not all, of the unlawful works.
3. In this case, the evidence discloses that: 1. the unauthorised works were carried out without the necessary development consent; 2. the scale of the works, with the construction of a large retaining wall and then infilling, was not trivial and the failure to obtain approval for the works cannot be characterised as a minor technicality; 3. there were impacts on the privacy and amenity of the applicants' property due to the infilling creating a level surface that would facilitate overlooking from the rear yard of No 40 into the dwelling on the applicants' property; and 4. the grant of the 2024 consent represents an appropriate balancing exercise carried out by the Council to provide some retention of the works to the benefit of No 40 and some removal of the works together with some attenuating planting and privacy screening, for the benefit of the applicants. This removed the need for the Court to make any complex orders in the nature of conditions of a development consent.

Conclusion and Orders

1. It follows from the discussion above that it is appropriate to make the orders sought by the parties in the consent orders furnished by them to the Court.
2. Accordingly, the Court: 1. declares that the first respondent, by his servants, agents or invitees, has carried out, or caused to be carried out, works on land at 40 Castle Circuit, Seaforth, known legally as Lot 24 in DP 20458 ("Wicks land"), being the construction of a retaining wall adjoining the western boundary between the Wicks land and the land at 42 Castle Circuit, Seaforth, known legally as Lot 23 in DP 20458 ("the wall"), without development consent and in breach of s 4.2(1)(a) of the Environmental Planning and Assessment Act 1979; 2. orders that within 30 days of the date of these orders, the first respondent, by his servants, agents, or invitees, is to commence the demolition of part of, and undertake remedial works to, the wall in accordance with the architectural, landscaping, stormwater and structural engineering plans and reports ("works") as approved in development application reference number DA2023/1696 ("development consent"). The works are to be completed subject to the conditions of that development consent, and must be completed, including all associated landscaping, within 90 days of the date of these orders; 3. orders that within nine months of the date of these orders, the first respondent by his servants, agents, or invitees, is to complete the deck, stairs and associated 1.7 m privacy screen at the rear of the Wicks land as approved pursuant to the development consent. 4. stays orders 2 and 3 for a period of four weeks from the date of these orders; 5. orders that the first respondent is to pay the applicants' costs of the proceedings from 16 December 2022 to date, as agreed or assessed; 6. grants the parties liberty to apply on three days' notice for any further or other orders, including orders for revoking, varying, supplementing, or replacing these orders, in whole or in part, upon sufficient cause being demonstrated by notice of motion and supporting affidavit evidence; and 7. orders that the exhibits are to be returned.

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: 02 May 2024

1. The grant of the 2024 consent reduced even further the scope of the contested issue before the Court. Accordingly, the parties submitted that the Court should grant the following relief:

(a) a declaration that Wicks carried out the works comprising construction of the retaining wall without development consent in breach of s 4.2(1)(a) of the EPAA;

(b) an order for those parts of the wall not approved to be retained in the 2024 consent to be demolished and removed in accordance with the conditions of that consent. This order was proposed to be stayed for a period of four weeks to allow Wicks to attend to any steps required before a construction certificate can be obtained to commence demolition works. The order, when it comes into operation, will require the completion of those demolition works within 90 days;

(c) an order that Wicks complete the deck, stairs and associated 1.7 m privacy screen at the rear of No 40, in conformity with the conditions of the 2024 consent. Again, this order is proposed to be stayed for a period of four weeks to allow for Wicks to attend to any steps required before a construction certificate can be obtained to commence the works. The order, when it comes into operation, will require the completion of those construction works within nine months.

1. Wicks does not oppose a declaration being made to the effect that the construction of the retaining wall and the placement of infill was carried out in breach of s 4.2(1) of the EPAA.
2. The applicable principles relating to the grant of declaratory relief are well established (see Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1 at [20]- [25], Friends of Glebe Wetlands Incorporated v Littlewoods Civil Contracting Pty Ltd [2022] NSWLEC 21 at [12]- [16] and most recently in Sader v Elgammal (No 2) [2024] NSWLEC 4 at [25]). In PAG Services Pty Ltd v Byron Shire Council [2023] NSWLEC 40, Pritchard J summarised them as follows, which I respectfully adopt and apply in this instance (at [73]-[75], footnotes omitted):

[73] The Court's correspondence with the parties (see above at [68]-[71]) arose from a concern that there was no proper contradictor in circumstances where Council indicated that it "takes no position on whether or not the development consent has lapsed".

[74] In Penrith City Council v Dincel Construction System Pty Ltd and Gaonor Pty Ltd (OSSM case), Robson J observed as follows:

14. It has been held that a condition precedent to granting declaratory relief is that, inter alia, the plaintiff must be able to secure a proper contradictor, that is, someone presently existing who has a true interest to oppose the declaration sought: Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448 and Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972] HCA 61 at 438.

15. In Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56 (MSY), the question that arose was whether, having regard to the consent of the parties to the granting of the declaratory relief proposed, the primary judge was prevented from granting that relief. Put another way, the question was whether consent to the relief sought precluded the respondent from being a "proper contradictor". The Full Federal Court (Greenwood, Logan and Yates JJ) held, at [30], that the correct position could be found in the judgments of Dawson J in Oil Basins Ltd v Commonwealth of Australia (1993) 178 CLR 643; [1993] HCA 60 at 648 and French J in IMF (Australia) Ltd v Sons of Gwalia Ltd (administrator appointed) [2004] FCA 1390; (2004) 211 ALR 231 at [47] . The Court stated that if a party had a true interest in the plaintiff's claim, even if they saw that interest served by not opposing the relief claimed, that would be sufficient to render them a "proper contradictor": MSY at [16]. Similar sentiments were expressed in Zetting v Müller [2017] NSWSC 659 and Re Beechworth Land Estates Pty Ltd (admins apptd) [2017] NSWSC 1447 .

[75] In this case, there was no proper contradictor, active or inactive. It is true that the Court has granted declaratory relief in circumstances where there was no contradictor: see Zaymill Pty Ltd and Maksim Holdings Pty Ltd v Ryde City Council (Zaymill), a case relied on by Council, and Donvito v Hawkesbury City Council (Donvito). It is also clear that the Court's jurisdiction to make a declaration is a "very wide one", limited only by the Court's discretion. Whilst the jurisdiction may be ousted by statute, the right of a subject to apply to the court for a determination of their rights will not be held to be excluded except by clear words.

1. Turning to the facts of this case, at all material times Wicks has been a proper contradictor having regard to his interest in the outcome of the proceedings, his active participation in the litigation, and his initial resistance to the remedial orders sought. The area of dispute between the parties has been directed to how to best remediate No 40. In these circumstances, a declaration affirms the Court's approval of the negotiations between the parties that have reduced the issues in dispute and have resulted in the preparation of agreed orders.
2. Another relevant factor is whether granting the declaration has the practical effect of marking disapproval by the Court of the conduct leading to the breach of the EPAA (Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 at [15]- [23]). In my view it does.
3. As stated above, the retaining wall was constructed without development consent first being obtained as required. In these circumstances, the failure of Wicks to obtain consent prior to the carrying out of works undermines the regulatory system and fails to promote the orderly development of land, which is contrary to the express objectives of the EPAA. Moreover, pre-emptory action deprives the consent authority of the opportunity to assess the environmental impacts of proposed development and it denies neighbours the opportunity of making submissions on perceived likely impacts.
4. It is therefore appropriate for the Court to make the declaration sought because it marks the disapproval of the Court over the conduct of Wicks and sends a message to the community that people should make inquiries and, when appropriate, obtain professional advice on whether works require development approval.

1. Because the 2024 consent does not provide for any specific timeline for works to be carried out, it is open to the Court to order that the demolition of the unapproved parts of the wall are to be carried out promptly within a specified timeframe. Such an order will serve the purpose of providing an appropriate remedy for the admitted breach of the EPAA and provide timely relief to the applicants. A copy of the approved plan identifying the parts of the wall to be demolished and the parts to be retained is below:

1. In Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 (at 339-341) guidance was provided in respect of the exercise of the Court's discretion to make the proposed remediation orders. The Court made similar orders in Wollongong City Council v Matthew Dominic Fikkers [2023] NSWLEC 52, granting both declaratory relief and remediation, albeit narrower in compass than those sought, because a consent had been granted which regularised some, but not all, of the unlawful works.
2. In this case, the evidence discloses that:

(a) the unauthorised works were carried out without the necessary development consent;

(b) the scale of the works, with the construction of a large retaining wall and then infilling, was not trivial and the failure to obtain approval for the works cannot be characterised as a minor technicality;

(c) there were impacts on the privacy and amenity of the applicants' property due to the infilling creating a level surface that would facilitate overlooking from the rear yard of No 40 into the dwelling on the applicants' property; and

(d) the grant of the 2024 consent represents an appropriate balancing exercise carried out by the Council to provide some retention of the works to the benefit of No 40 and some removal of the works together with some attenuating planting and privacy screening, for the benefit of the applicants. This removed the need for the Court to make any complex orders in the nature of conditions of a development consent.

1. It follows from the discussion above that it is appropriate to make the orders sought by the parties in the consent orders furnished by them to the Court.
2. Accordingly, the Court:

(1) declares that the first respondent, by his servants, agents or invitees, has carried out, or caused to be carried out, works on land at 40 Castle Circuit, Seaforth, known legally as Lot 24 in DP 20458 ("Wicks land"), being the construction of a retaining wall adjoining the western boundary between the Wicks land and the land at 42 Castle Circuit, Seaforth, known legally as Lot 23 in DP 20458 ("the wall"), without development consent and in breach of s 4.2(1)(a) of the Environmental Planning and Assessment Act 1979;

(2) orders that within 30 days of the date of these orders, the first respondent, by his servants, agents, or invitees, is to commence the demolition of part of, and undertake remedial works to, the wall in accordance with the architectural, landscaping, stormwater and structural engineering plans and reports ("works") as approved in development application reference number DA2023/1696 ("development consent"). The works are to be completed subject to the conditions of that development consent, and must be completed, including all associated landscaping, within 90 days of the date of these orders;

(3) orders that within nine months of the date of these orders, the first respondent by his servants, agents, or invitees, is to complete the deck, stairs and associated 1.7 m privacy screen at the rear of the Wicks land as approved pursuant to the development consent.

(4) stays orders 2 and 3 for a period of four weeks from the date of these orders;

(5) orders that the first respondent is to pay the applicants' costs of the proceedings from 16 December 2022 to date, as agreed or assessed;

(6) grants the parties liberty to apply on three days' notice for any further or other orders, including orders for revoking, varying, supplementing, or replacing these orders, in whole or in part, upon sufficient cause being demonstrated by notice of motion and supporting affidavit evidence; and

(7) orders that the exhibits are to be returned.