HANDLEY JA
STEIN JA
HEYDON JA
Friday, 1 September 2000
SAHADE v MOSMAN MUNICIPAL COUNCIL
JUDGMENT
1 STEIN JA: The appellant's approach to the proceedings before the Land and Environment Court and this Court is misconceived. The conduct of the appellant, and his counsel, before the Land and Environment Court failed to appreciate the essential nature of the proceedings.
2 First, they were civil enforcement proceedings under ss 122 - 124 of the Environmental Planning and Assessment Act 1979 (the Act) and not a criminal prosecution under ss 125 - 127 of the Act. Second, they sought an injunction restraining breach of conditions of a development consent granted by the Council, and also of a subsequent building approval, see s 122(b)(iii) and also s 122(a)(i) and (ii). They were not proceedings alleging that the appellant was carrying on development without consent, s 76A(1).
3 These fundamental distinctions do not seem to have been grasped by the appellant and his legal representatives.
4 Moreover, the concern of the appellant with the orders made against him in the Land and Environment Court does not appear to attack his Honour's finding of breaches of the consent and approval but rather to argue that the evidence was not sufficient to implicate the appellant in the breaches. Again, this is to misunderstand the nature of the proceedings. It matters not whether the appellant himself committed the breaches or failed to prevent breaches occurring. Of course, such matters may be relevant to the Court's discretion and to the nature of the orders which may be made to remedy the breach.
5 The Court's power to grant a remedy in civil enforcement proceedings is dependent on proof that the breach has been committed or, unless restrained, will be committed. It is not dependent on proof that the respondent to the proceedings committed the breach. Nonetheless, in determining whether to make an order to remedy or restrain a breach, and the ambit of any order, the Court will need to be satisfied that the person to be bound by the order is in a position to remedy or restrain the breach.
6 In this case the appellant was the applicant for and recipient of the development consent and building approval. He is the owner of the subject land and premises. No development can be carried on without the consent or agreement of the owner and no development or works may be carried out on land contrary to the conditions of consent.
7 There was ample evidence (and available inferences) before the Land and Environment Court on which it could be satisfied that the appellant, his servants or agents, was operating, or permitting or suffering the use of the subject premises in breach of conditions of the development consent and the building approval.
8 The declarations made by his Honour may have been unnecessary. However, in the circumstances of this case they may have had some utility. They are nonetheless superfluous to the principal injunction, which the evidence before the Court justified. The injunction is concerned to restrain future breaches and to remedy past failures to comply with conditions of the approvals.
9 The appellant complains that his Honour allowed the Council to amend the relief sought, after it had closed its case, by adding the words 'or permitting or suffering'. Moreover, after granting the amendment, Talbot J refused the appellant an adjournment.
10 Regard must be had to the conduct of the proceedings. Normally the rules of the Land and Environment Court require that evidence in a Class 4 civil enforcement proceeding be by way of affidavit, filed before the hearing. An opposing party is to indicate objections in advance of the hearing and to nominate deponents required to attend for cross-examination.
11 The Council essentially complied with the rules. The appellant chose to do nothing. He filed no evidence, provided no objections to evidence in advance and gave no notice regarding witnesses required for cross-examination. This was a forensic decision taken by the appellant, one assumes on advice. The tactic was to defeat the Council's application on the basis that ownership alone by the appellant would be insufficient to attract an order.
12 At the hearing the counsel for the appellant, Mr M Sahade, sought and was granted leave to cross-examine a Council officer, Mr Clabburn. It also appears that his Honour was prepared to allow the appellant to give oral evidence subject to a statement of his intended evidence being provided to the applicant Council.
13 The amendment granted by his Honour did not alter the position in relation to the ability of the appellant to contest the alleged breaches. Further, it did not affect the ability of the appellant to call evidence, including that of the appellant himself, on the issue he may have wished to raise of any third party involvement in the premises. It is apparent that the appellant was present during the trial but a tactical decision was taken not to seek to call him to the witness box.
14 In my view, his Honour was entitled to grant the amendment sought by the applicant council. It did not render an injustice on the appellant nor is it apparent that the amendment caused any real prejudice to him. It follows that his Honour was correct to refuse the adjournment application. The decision was a discretionary one and it has not been demonstrated that there was any error in principle or that the discretion miscarried.