* Local Government Act 1993

Solicitors Applicants Mr R Spinak of Horowitz & Bilinsky

Respondent Ms Helen Wong of Williams Ryman Wong

This is a Class 4 proceeding involving a dispute between two neighbours.

The applicants, Mr and Mrs Conomos, are the registered proprietors of the land known as 8 Kulgoa Road, Bellevue Hill ("No.8").

The respondent, Ms Chryssochoides, is the registered proprietor of the land known as 6 Kulgoa Road, Bellevue Hill ("No. 6").

Both residences are located within the area controlled by Woollahra Council ("the Council").

The respondent has carried out building works in the nature of additions to No.6, including bedroom, shower and toilet.

On or about 17 March 1995, the respondent submitted to the Council a development application (No. 95/1315) and a building application (No. 223/95), for the relevant additions.

Three plans drawn by Richard J Rowe and dated August 1989 formed part of each of the applications [Exhibit 2].

It is common ground that by reason of s 76(2) of the Environmental Planning and Assessment Act 1979 ("EPAA") , s 68 of the Local Government Act 1993 ("LGA") and the provisions of Woollahra Local Environmental Plan 1995, these proposed building works required the consent and approval of the Council.

On or about 4 July 1995 the Council granted development consent and building approval to these applications, "in accordance with" the three plans, and subject to certain conditions, which included a 900mm boundary setback.

The respondent asks the Court to construe the term "in accordance with" more narrowly than "generally in accordance with" (the plans).

These works, once completed, included the construction of external pipes ("the pipes") on the southern wall of No.6, connected to the sewer and draining the toilet, shower, bath, basin and other facilities on the southern elevation of the house.

The pipes are the central issue in these proceedings. In short, they are alleged to have a detrimental aural and visual impact on the applicants and their property at No.8, and not to have been approved as required by law.

The applicants ask the Court to declare that the respondent, in constructing the pipes, has breached s68 of the LGA and s76 of the EPAA, and they seek an order from this Court for the removal or demolition of the pipes, or for the pipes to be covered, perhaps with compressed fibrous cement ("CFC"), to remediate their alleged noise and visual impact.

The applicants also seek their costs and "such further or other Order as the Court considers appropriate."

It was suggested to the Court during argument, that, even though the evidence suggests that CFC covering of the pipes may encroach on the required 900 mm separation between the southern wall of No.6 and the boundary between Nos.6 and 8, the Council would have no objection.

While the Court did not have the benefit of a site inspection, numerous informative photographs were tendered in evidence.

It is accepted that each house is built approximately 1 metre from the common boundary. The house at No.8, which is now two-storey, is built on a level approximately 1 metre above that of No.6, which appears to be only one-storey. The pipes can be seen on the southern external wall of No.6, the height of that house allowing them to be visible above the level of a fairly substantial brick wall situated along the common boundary in the vicinity of the point on the wall of No.6 where the pipes are located.

The No.8 side of the brick wall is cement rendered and supports a built-in barbecue which is alleged to be the focal point of the applicants' outdoor entertainment area.

The barbecue is erected adjacent to a covered rear patio, and a family kitchen and living room open onto that area. A stairway of approximately 7 or 8 steps goes down from that patio to the surrounds of a swimming pool.

On the boundary line, to the East of the cement rendered wall, is a paling fence which seems to come down at some angle from the street, and, to the West of the length of wall, the photographs show a substantial hedge screening any view of the pool at the rear of No.8 from the rear of No.6.

The three downpipes from the roof guttering of No.6 are not in issue in these proceedings, despite the interaction of one of the three pipes with the pipes in issue.

The pipes comprise a large waste pipe which is joined by five other smaller pipes emanating from the wall of No.6, at what looks to be approximately the floor level of the top storey.

As well, in the same area of the wall, there is a small open waste pipe, presumably for overflow purposes, and a vertical pipe with some probable ventilation function.

To a viewer standing out in the patio/entertaining area at the rear of No.6, near the barbecue, all these pipes would be clearly visible, "framed", as it were, by the top of the dividing wall on the boundary, and either the roof line of No.6, or the line of the cover over the patio at the rear of No.8 (depending on one's vantage point).

A photograph taken from the far end of the kitchen in No.8, looking straight through the doorway across the patio to the barbecue area, shows at least some of the pipes are even visible from that location (Exhibit A).

Mr Harrison, an Acoustical Engineer, gave evidence on behalf of the applicants indicating that, on the only occasion he tested the noise, the flushing noise of the toilet at No.6 measured 10dBA above the background noise level.

Harrison's acoustic assessment took place on the patio at No.8 on 8 October 1996 between 7.30am and 8.30am, in which time only one flush was detected and it was not known by Mr Harrison whether that flush was a "half flush" or a "full flush".

Mr Harrison did not observe whether the pipes were audible from inside the house at No.8, but Mr Conomos testified that the pipes can be heard from inside the living room and kitchen when the backdoors leading from those rooms to the patio area are open.

It was suggested by Mr Harrison that the pipes could be made inaudible by enclosing them in a box-like structure constructed from 5mm thick CFC.

Such a structure, according to Mr Harrison's affidavit of 9 April 1997, would not add more than 50mm to the lateral dimensions of the pipes and 10mm to the protrusion from the wall.

Mr Harrison's evidence was challenged by Counsel for the respondent in that although the EPA's Environmental Noise Control Manual prescribes a level of 5dBA above the background noise as an audible level, it does not refer specifically to intermittent noise as opposed to more longlasting noise and is also based on noises lasting longer than 1.5 minutes.

Counsel argued that the guidelines would have to be adjusted if they are to apply in this case, and suggested that a more appropriate limit for an intermittent noise would be 10bDA taking into account the fact that the flush is an intermittent noise lasting less than 1.5 minutes.

Mr Karavanas, a consultant Environmental and Traffic Planner, who gave evidence for the applicants, said that he finds the noise to be offensive and embarrassing because of its association with the bodily functions for which the pipes are required.

He also finds the pipes visually intrusive and believes that they have an unreasonable impact on visual amenity. He stated that although external pipes may not be unusual, the fact that they are located so noticeably close to the focus of the adjoining owner's entertaining area is unusual.

In respect of visual impact, it should be noted the respondent was ordered by the Council to paint the pipes the same colour as the wall on which the pipes are located to alleviate the visual impact of the pipes.

A number of the photographs in Exhibit A show, on a "before and after" basis, the results of the painting of the pipes.

It is clear that despite the visual improvement the painting has achieved, the configuration of plumbing pipes is certainly not an attractive feature of the house at No.6, when viewed from No.8.

The noise from the pipes may not of itself offend the EPA guidelines or the applicant's amenity, but I am satisfied that the association between the flushing of a toilet so close to the entertainment area and the detrimental visual impact of the pipes creates a not insignificant impact on the applicants' amenity.

Nothing appears to turn on the fact that the development consent stands in the name of James T Chryssochoides and the Building Approval was issued to the respondent, nor that the notifications are dated respectively 5 July and 4 July 1995. It is accepted that the two approvals were probably issued in the more usual order.

Nor was any evidence led or submission made in regard to the apparent disparity between the photographic evidence of the location of the exit points of the pipes from the wall and what one would deduce from the plans to be the junction point between the bathroom and its adjoining upstairs bedroom.

It is argued by the applicants that the pipes are a structure or part of a structure and so constitute a "development" requiring consent pursuant to s76 (2) of the EPAA and approval pursuant to s68 of the LGA.

The applicants submit that as the pipes were not shown on any of the three plans submitted to Council with the DA and BA to which the subsequent consent and approval applied, they did not form part of the approved works and are therefore unauthorised.

Section 76(2) of the EPAA states:

"Subject to this Act, where an environmental planning instrument provides that development specified therein may not be carried out except with consent under this Act being obtained therefor, a person shall not carry out that development on land to which that provision applies unless:

(a) that consent has been obtained and is in force under this Act; and

(b) the development is carried out in accordance with the provisions of any conditions subject to which that consent was granted and of that instrument."

Section 4 of the EPAA defines the word "development" as follows:

(b) the carrying out of a work in, on, over or under that land;

(c) the use of that land or of a building or work on that land; and

but does not include any development of a class or description prescribed by the regulations for the purposes of this definition;"

The definition in s4 of "building" states "building includes a structure or a part of a structure".

Section 4(2)(a) of the EPAA states that a reference in the EPAA to "the erection of a building includes a reference to the rebuilding of, the making of structural alterations to, or the enlargement or extension of a building or the placing or relocating of a building on land".

The applicants submit that the erection of the pipes also constitutes a breach of s 68 of the LGA.

Section 68 states:

"(1) A person may carry out an activity specified in the following Table only with the prior approval of the council, except in so far as this Act, the regulations or a local policy adopted under Part 3 allows the activity to be carried out without that approval.

Note: A person who fails to obtain an approval or who carries out an activity otherwise than in accordance with an approval is guilty of an offence - see ss626 and 627."

"Part A - Buildings, Temporary Structures or Moveable Dwellings

Part B - Water supply, Sewerage and Stormwater Drainage Work

2. Draw water from a council water supply or a standpipe or sell water so drawn

3. Install, alter, disconnect or remove a meter connected to a service pipe

6. Connect a private drain or sewer with a public drain or sewer under the control of a council or with a drain or sewer which connects with such a public drain or sewer."

The applicants argue that the erection of the pipes constituted the "erection of a building" and the carrying out of "sewerage work" for the purposes of the table in

s 68.

The dictionary in the Local Government Act 1993 defines the following:

"building includes part of a building and any structure or part of a structure, but does not include a moveable dwelling or associated structure or part of a moveable dwelling or associated structure.

erection, in relation to building, includes any structural work and any alteration, addition or rebuilding.

sewerage work means the construction, alteration, extension, disconnection, removal, ventilation, flushing or cleansing of any sewerage service pipes or fittings or fixtures communicating or intended to communicate, directly or indirectly, with:

(a) a septic tank, an effluent or a sullage disposal system; or

and includes work of sanitary plumbing and work of house drainage."

In relation to the applicant's submission that the pipes constitute "sewerage work" as defined in the Table above, the respondent argues that the definition of "sewerage" does not regulate Water Board sewers but, Council sewers.

In this case it is agreed that the connecting sewer is a Water Board sewer.

The applicants rely on the reference to "sanitary plumbing" and "house drainage" in the definition of "sewerage work" as inclusive words and submit that these words regulate the circumstances in this case.

The respondent argues, relying on the "de minimis" rule, that the pipes do not breach either s76 of the EPAA or s68 of the LGA because they are such a trifling matter that they could not constitute a structure or part of a structure and therefore do not require consent or approval.

In Farnell Electronic Components Pty Ltd v Collector of Customs [1996] 1135 FCA 1 Hill J stated that in an appropriate case the de minimis maxim will be applied as a rule of interpretation. The de minimis rule has been applied in situations where a trivial failure to comply with a specific condition has occurred. The application of the principle was stated by Hill J to depend upon the context in which it falls and was not applied by His Honour in that case.

The respondent relies on a number of cases where the de minimis rule was applied including Symond & Anor v North Sydney Municipal Council (Land and Environment Court, Bignold J, 10366/88, 8 February 1990, unreported), Kogarah Municipal Council v Kotevski & Ors (Land and Environment Court, Bignold J, 40156/88, 13 September 1990, unreported), and Cuthbert v Hardie and Anor 17 NSWLR 321.

The applicants submit that to determine whether the de minimis rule should be applied the Court should have regard to the effect on the environment and the objects of the Acts. The applicants rely on a number of authorities including Mulcahy v Blue Mountains City Council ("Mulcahy") (1993) 81 LGERA 302 to show that the pipes are a structure and that the de minimis rule should not be applied in this case.

The word "structure" was the subject of some obiter discussion in Mulcahy where Mahoney JA took the view that a gate erected at the end of a road on private property in a rural area may not be a structure, even though His Honour assumed that it was a structure for the purposes of the appeal in that case.

Mahoney JA stated that the statutes in question ( in that case the LGA 1919 and the EPAA) should be construed in a purposive way, having regard to the purposes sought to be achieved by the legislation, and the principle that expressions must be limited to enable them to perform the function intended by the legislature.

In Burwood Council v Russo (Land and Environment Court, Talbot J, 40145/94, 14 March 1995) ("Burwood") His Honour distinguished the facts in Burwood from those in Mulcahy on the basis that in Burwood the land was located in a densely populated urban residential area, and decided that the corrugated iron sheeting was a structure that required approval.

In Cariste Pty Ltd & Anor v The Council of the City of Blue Mountains (Court of Appeal of NSW, 40217/93, 18 November 1996, unreported) ("Cariste") Simos AJA, with whom Beazley and Clarke JJA agreed, adopted Mahoney JA's emphasis on a purposive approach and decided that the work in issue, the excavation and stockpiling of excavated soil and topsoil in relation to a proposed pond, did not involve the construction of a structure or a building.

Although the provision in question was s304 of the LGA 1919 it is accepted that the definitions of the words "erection" and "building" in the LGA 1919 and LGA 1993 do not change the principles of interpretation of these expressions (see remarks by Talbot J in Burwood).

The Court of Appeal held that the work in Cariste "was not of such a kind or nature as was intended by the legislature to be regulated by the relevant provisions of the Act relating to "buildings", and which involve concern for such matters as, inter alia, drainage, ventilation, lighting, health and other matters inapplicable to that particular `dam' ".

A sewer trench was also the subject of dispute in Cariste and it was held that it did not require approval because it was not simply incidental to a building, but was a separate and independent requirement, being the subject of its own condition of development consent.

In Bowyer v Manly Council ( Land and Environment Court, Talbot J, 40305/96, 28 February 97, unreported) the issue was whether a public road and associated works including concrete structures, steps, a rock wall, safety rail, steel posts and drainage works could be a structure.

Talbot J accepted Mahoney JA's approach in Mulcahy and also Simos AJA's approach in Cariste, and took a purposive approach to analysing chapter 7 of the LGA. Talbot J accepted the submission that the purpose of the LGA in relation to the control and regulation of the erection of buildings, as defined, is not apparent from the stated purposes of the Act.

In deciphering the purposes for which a local Council's powers and functions with

regard to the erection of buildings were conferred, Talbot J followed the reasoning of Deane J in The Council of the Shire of Sutherland v Heyman & Anor [1985] HCA 41; (1985) 157 CLR 424 which outlined the relevant purposes as including the advancement and maintenance of the general amenity of the neighbourhood.

In deciding that the road was not a structure, Talbot J reasoned that the legislature did not intend that a road would be regarded as a structure within the LGA , having regard to the fact that the Roads Act 1993 commenced with the repeal of the LGA 1919 and was the appropriate statute governing the role of a local Council in controlling the development of roads.

In this case I rely on the objects of the Acts in question and agree that they include conferring power on local Councils over the general amenity of the neighbourhood and environment in their locality.

Although the pipes are not physically large and may seem of little importance to the general environment, they are certainly not seen as trivial by those situated closest to them within their environment.

For my part, I do not regard the pipes as a trivial matter in themselves, nor their erection as a trivial breach, and I am therefore not convinced that the de minimis principle has any application in this case.

The pipes in question are located in a dense neighbourhood in a large city and on this basis I agree that the reasoning of Talbot J in Burwood is more relevant, and that Mulcahy should be distinguished, in so far as it might be said to read down the meaning and the application of the word "structure".

In fact, in Mulcahy, Mahoney JA described a hypothetical scenario involving the construction of a statue. His Honour assumed that the purpose of the statute in the hypothetical situation he described was to protect the amenity of the neighbourhood or environment. His Honour then drew a distinction between a statue erected inside a house, with no relationship to the external environment, and one erected outside the house, which would probably need approval, even if a purposive rather than literal construction of the statute was preferred (see Mulcahy at 308).

I accept that the pipes in this case constitute a structure or part of a structure, if on no other basis that their effect upon the amenity of the adjoining neighbour is unreasonable in all the circumstances.

The purposes of both Acts include conferring responsibility on a local Council to regulate the general amenity of the neighbourhood, and a neighbourhood is after all made up of many individual neighbours whose individual amenities cannot be trivialised.

I therefore find that the pipes are relevantly a "structure" and therefore a "building", and the question to decide now is whether the pipes were the subject of consent or approval.

The respondent contends that, on a proper construction of the plans, and by inference, the Council issued consent for the external pipes incidental to the additions.

The respondent urges the Court to interpret the relevant consent/approval and the three plans in a practical and liberal way, without the type of scrutiny usually applied to documents written by lawyers.

It is said that the documents on their face are clear, and unless ambiguity requires it, there is no need to resort to extrinsic material.

In particular, the respondent asserts that as the approval, includes the following condition:

22(c) "Your attention is drawn to the necessity of conferring with the WATERBOARD concerning all plumbing works, including connections to mains, installation or alteration of systems, and construction over or near existing water and sewerage services."

the Council did not take any responsibility for the pipes but referred the respondent to the Water Board, and, as there is no evidence of the respondent not complying with Council's requirement by going to the Water Board, there is no reason to look behind this clause.

Reference was also made to Plan 2 which states that the "proposed bathroom, dressing room and bedroom to replace bedroom and shower room" (my emphasis). The respondent argues that as there was an existing shower facility, the Court can assume that there may have already been pipes in existence, which were replaced, albeit in more expanded form, by the pipes at issue in these proceedings.

I am not satisfied that the plans expressly approved the pipes, the plans are quite detailed and no express reference is made to the pipes anywhere in or on them.

Condition 22(c) may indeed be a standard clause adopted by the Council to ensure that any plumbing works function appropriately in conjunction with the rest of the neighbourhood. I fail to see any connection between the amenity of the neighbourhood and the relevant clause and do not regard the clause as an attempt by the Council to delegate its function to the Water Board.

As a structure the pipes require Council approval, and, as they did not get such approval, either expressly or by necessary implication, I find that the respondent has breached both s76(2) of the EPAA 1979 in carrying out development without consent, and s68 of the LGA 1993 in erecting a building without prior approval.

It is within the discretion of this Court under s124 EPAA and s674 LGA as to whether an order should be made, and as to what order the Court thinks fit to make, to "remedy or restrain" any breach of the legislative requirements.

The respondent submits that the Court should not exercise its discretion in favour of the applicant in these circumstances because:

(a) a building certificate dated 20 December 1996 was issued by the Council under s172 LGA to the respondent when she sought "retrospective approval" for the pipes, and is evidence of the Council's attitude towards the pipes.

This should be taken into account by the Court in its discretion even though both parties accept that the certificate does not cure the breach of the LGA nor affect the applicant's right to bring these proceedings and obtain the relief sought, Cramer & Ors v Leichhardt Municipal Council & Ors (Land and Environment Court, Stein J, 5 March 1992, 40138 of 1991) ("Cramer") .

(b) the Council failed to prosecute the respondent for the breach.

In Woollahra Municipal Council v Alcaine (1986) 59 LGRA 40 ("Alcaine"). Cripps J took into account the failure of a Council to prosecute in refusing to exercise the Court's discretion to make a mandatory order.

(c) the pipes are "de minimis" in their effect on the amenity of the environment.

The pipes have since been painted in accordance with a Council order, made when it confronted its inability to grant either retrospective approval to an illegal building, nor relief under s 102 of the EPAA to modify something already illegal. I have already referred to the beneficial impact of the painting, but the pipes remain a prominent feature in the view from No.8.

(d) in the circumstances of the case, there is a lack of environmental harm.

Objectively the noise generated may not be unreasonable, and the visual impact restricted to one property, but there is evidence that there is a psychological link between the noise complaint and the function causing the noise.

(e) the Court should not enforce a public duty in a dispute between private parties.

In this case, however, the applicant is a private party directly affected by the failure to observe a public duty.

(f) the Council would probably have still given the requisite consent if the pipes had been shown on the plans (Alcaine).

The breach of relevant Acts have been found and the Judge must determine the orders which the Court should make to restrain or remedy the breach.

The Court must "mould the manner of its intervention in such a way as will best meet the practicalities as well as the justice of the situation before it". (see F Hannan v Elcom [No.3] (1985) 3 LGRA 306 at 311 per Street CJ).

The principles or guidelines which assist Judges in determining how they should exercise discretion are set out clearly in the judgment of Kirby P (as he then was) in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 ("Sedevcic") especially at pages 339-341, and need not be repeated here.

They are no more than guidelines, indicators or parameters, and all the circumstances of each case must be weighed in reaching a decision.

In my discretion, I have decided to refuse to make an order for the removal or demolition of the pipes, as sought in the third prayer of the class 4 application, as such a remedy is "clearly disproportionate to the established breach of planning law ... involving the imposition of undue hardship" upon the respondent, Kogarah Municipal Council v Kotevski & Ors, Bignold J, 40156 of 1988,13 September 1990 at 4 ("Kotevski").

As Kirby P said in Sedevcic (p 340-1, principle "8"):

"The wide discretion has been described as `an adequate safeguard against abuse of a salutary procedure' ... . It permits the Court to soften, according to the justice of particular circumstances, the application of rules which, though right in the general, may produce an unjust result in the particular case."

"In exercising the discretion, it must be kept in mind that the restraint sought is not, in its nature, the enforcement of a private right , whether in equity or otherwise. It is the enforcement of a public duty imposed by or under an Act of Parliament, by which Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment".

Kirby P returned to this latter theme in Fatsel Pty Limited v ACR Trading Pty Limited [No.3] (1987) 64 LGRA 177 at 192:

"It permits, in appropriate cases, the refusal of injunctive relief where to grant such relief would work such an injustice as to be disproportionate to the ends secured by enforcement of the legislation including by injunction".

In view of my decision not to grant the third prayer of the application ("An Order that the respondent remove or demolish The Pipes") I must consider whether or not to grant the fourth and sixth prayers, namely:

"4. Alternatively, an Order that the respondent be required to carry out works to cover and remediate the impact of The Pipes.

6. Such further or other Order as the Court considers appropriate."

I have considered the principles in Sedevcic in the context of the facts of this case and my findings thereon, and I have come to the conclusion, in all the circumstances, that I should exercise my discretion in favour of the applicants and make an order in their favour (see also Cramer at 9, and Kotevski).The evidence suggests that covering the pipes with CFC, and perhaps also encasing them in a CFC "box", would "remediate" the impact of the pipes, both aurally and visually.

On looking at the photographs, one might conclude that extending the hedge along the top of the dividing wall - or in substitution for it - may well have the same effect, but there is no evidence before the Court as to the implications of such an alternative for the applicants' barbecue, and thus the whole configuration and use of their outdoor entertainment area.

Accordingly, I have decided to give the parties the opportunity to agree upon the exact remediation to be ordered by the Court.

(a) I make the declarations sought in the first and second prayers of the application, namely:

"1. A declaration that the waste and soil pipes ("The Pipes") constructed by the respondent, Judith Alicia Chryssochoides, upon the land known as Part Lot 3 in Deposited plan 4006 being the whole of the land in Certificate of Title Volume 3664 Folio 62 and known as No.6 Kulgoa Road, Bellevue Hill have been constructed in contravention of Section 76 of the Environmental Planning & Assessment Act 1979.

2. A declaration that The Pipes have been constructed in contravention of Section 68 of the Local Government Act 1993."

(b) I grant leave to the parties to bring in draft Short Minutes of Order as to the remedial works required to give effect to my judgment. If the parties do not agree within fourteen (14) days, they each shall have liberty to apply on seven (7) days notice.

(c) I reserve all questions of costs as, although the applicants are entitled to relief, it is limited in scope.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 21 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN.