Barton v Orange City Council

KEY ISSUES: Development Consent :- whether invalid - whether declaration of invalidity should be made - whether demolition order should be made - discretionary considerations.

Environmental Planning and Assessment Act 1979 (NSW) ss 79C(1)(a) and (b), 101, 124 LEGISLATION CITED: Orange Development Control Plan 2004 cll 5.2, 7.4, 7.5, 7.7 Orange Local Environmental Plan 2000 (NSW) cl 41

ACR Trading Pty Ltd v Fat-sel Pty Ltd (1987) 11 NSWLR 67 Attorney General v Greenfield (1964) 79 WN (NSW) 241 Cutcliffe v Lithgow City Council (2006) 147 LGERA 330 F Hannan Pty Ltd v Electricity Commission (NSW) (No 3) (1985) 66 LGRA 306 Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 220 CLR 472 Ireland v Cessnock City Council (1999) 103 LGERA 285 Lord v Hiscock (1980) 47 LGRA 168 CASES CITED: Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 Tynan v Meharg and Newcastle City Council (1998) 101 LGERA 255 Tynan v Meharg and Newcastle City Council (No 2) (1999) 102 LGERA 119 Vaughan v Byron Shire Council (1999) 103 LGERA 321 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 Woollahra Municipal Council v Alcaine (1986) 59 LGRA 40 Woollahra Municipal Council v Barlow (1988) 66 LGRA 248

DATES OF HEARING: 11-12 December 2007, 31 January 2008, 8, 11 February 2008 written submissions

APPLICANTS: Mr M Wright, barrister SOLICITORS: King-Christopher Carpenter

LEGAL REPRESENTATIVES: FIRST RESPONDENT: Submitting appearance SECOND RESPONDENT: Mr G Miller QC and Mr T To SOLICITORS: Campbell Paton & Taylor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

GREGORY JOHN BARTON & ANOR v ORANGE CITY COUNCIL & ANOR

JUDGMENT 1 HIS HONOUR: The applicants challenge the validity of a development consent granted by Orange City Council on 14 February 2007 for the construction of a second storey addition to the rear of a dwelling house at 315 Lords Place, Orange. The applicants claim a consequential order that the owner, Mrs Kerryn Westgeest, demolish it. The council has filed a submitting appearance save as to costs. Invalidity of the development consent is uncontested. A demolition order is contested by Mrs Westgeest on discretionary grounds. 2 The applicants, Gregory John Barton and Amanda Wendy Barton, are the owners and occupiers of the next door property to the south at 313 Lords Place, Orange where they reside with their young children. The first respondent is the council. The second respondent is Mrs Kerryn Westgeest who made the development application and who resides at No 315 with her husband Mr Dominic Westgeest and their infant child (the birth of their second child is imminent). When they decided to have a family they decided to increase the size of their home. That was the purpose of the development application. Development consent was required under the Orange Local Environmental Plan 2000 (NSW). the proceedings 3 The proceedings were commenced on 6 June 2007. The council's submitting appearance was filed on 21 August 2007. Mrs Westgeest filed a defence on 26 November 2007 in which she admits the invalidity of the development consent save for an allegation that the council was under a duty to notify the applicants of the making of the development application.

4 The applicants have pleaded and submitted, Mrs Westgeest has admitted on the pleadings and conceded in submissions and the council has not contested, that: (a) the council failed to take into account mandatory relevant considerations under s 79C(1)(a) and (b) of the Environmental Planning and Assessment Act 1979 . In particular, the council: (i) failed to consider and form the requisite opinion required by cl 41(a)(iv) of the Orange Local Environmental Plan 2000 that the development would be compatible with the existing and likely future character and amenity of the residential locality in terms of overshadowing; (ii) failed to consider the provisions of cll 7.4 and 7.5 of the Orange Development Control Plan 2004 ; in particular the planning outcomes concerning visual bulk, walls and boundaries, and daylight and sunlight which are referred to as planning outcomes in cl 7.7; (iii) failed to consider the likely impacts of the proposed development on the applicants' land in terms of visual bulk, overshadowing and privacy; (b) the council failed to give proper, genuine or realistic consideration to the above matters; and (c) alternatively, if the council did give consideration to those matters, its conduct in granting the development consent was so unreasonable that no council acting properly could have granted the consent. 5 I have had a view of the two properties which I found of considerable value in understanding and appreciating the evidence notwithstanding a number of photographs tendered in evidence. validity 6 Notwithstanding Mrs Westgeest's admissions and the council's submission, the Court must still be satisfied, by evidence and argument, that the complaint of invalidity should be upheld and declaratory relief granted: Cutcliffe v Lithgow City Council (2006) 147 LGERA 330 at [18].

7 I am satisfied by the uncontested evidence and argument of the applicants that the complaints should be upheld because the council failed to give proper, genuine or realistic consideration to the matters listed at [4(a)] above. In particular:

(a) the development application attached shadow diagrams which were deficient in that they failed to show the dwelling erected on the applicants' land; (b) nevertheless, those shadow diagrams indicated that very substantial overshadowing would be caused to the applicants' land including over the area where the living rooms of their house and their outside pergola were in fact located; (c) there was no evidence that the council delegate Mr McCallum inspected the applicants' land to assess the impact of overshadowing or the visual impact of the proposed alterations on the applicants' dwelling. Whether or not he did, a report prepared by him dated 9 February 2007 asserts that there would be " No unreasonable overshadowing " of adjoining property. Nowhere does the report identify or consider with specificity any potential impact on the applicants' land. The report does not disclose that any, or any adequate, consideration was given to this issue; (d) the document described as " The Statement of Environmental Effects " accompanying the development application was cursory. In it the question appears " Will the proposal impact on adjoining residences? " The question is answered by ticking the " no " box. This document, although signed by Mrs Westgeest, was hastily filled out for her by the council officer, Mr McCallum. 8 If I am in error in holding that the council did not give proper, genuine and realistic consideration to the matters identified in [4(a)] above, then having regard to the matters particularised in [7] above, I accept the applicants' uncontested submission that the council's conduct was so unreasonable that no council acting properly could have granted the consent.

9 The council did not give the applicants notice of the making of the development application. It is unnecessary to consider the applicants' further submission, which Mrs Westgeest contested, that there was an obligation on the council to give the applicants notice pursuant to cl 5.2 of the Orange Development Control Plan 2004. This turns on the construction of that clause. It is, however, most unfortunate that the council did not give notice. As Waddell J observed in Lord v Hiscock (1980) 47 LGRA 168 at 182 - 183: Local councils have the important function of exercising the discretions given to them by relevant legislation so as to balance the differing interests of neighbours and where necessary, of the public. It is, in my opinion, highly desirable that in a residential area neighbours be given notice of any building, development or interim development application. The council should have the advantage of any objections and neighbours should have the satisfaction of having their objections taken into account. Unfortunately, the law requires notice only in a limited number of cases. See, for instance, cl. 34 of the Sutherland Planning Scheme Ordinance which requires notice to be given in the case of applications within the zone in which the subject properties are located, only where the development concerned is other than for the purpose of a dwellinghouse or residential flat building. In my opinion there should be notice in the case of all the applications mentioned and amendments to this effect should be made to the relevant legislation. While it is true that some additional work would be caused to those local councils who are present do not require notice to be given, it is important that justice should not only be done but should be seen to be done . After all, for most people their home is their most important asset. If notice had been given in the present case, any difference between the parties could have been resolved before the building work commenced, which would have been of great benefit to both sides. THE COURSE OF EVENTS 10 Mrs Westgeest purchased her property in 1998. The applicants purchased their neighbouring property in 2002. They demolished the existing house and built a new single storey house which had all the living areas on the northern side to maximise the entry of northern sun. This was important to them because Orange is very cold in winter. Consequently, they had full natural light in the family living area, meals area and kitchen, and in winter on most sunny days they did not have to turn on the heating until the evening.

11 The northern wall of their house is approximately four metres from the southern wall of Mrs Westgeest's house. Before the extension, her house was single storey with an attic at the rear. It had a pitched roof approximately five metres high with a flat slanted roof on the rear approximately three metres high reducing to approximately 2.5 metres. The rear part of her house did not cause overshadowing of the applicants' house.

12 As a result of the extension, the applicants' house is overshadowed in the family/living and outside pergola areas and is darker and colder. Naturally, the applicants find this depressing. The vista is now dominated by the extension's very large, blank two storey wall.

13 In January 2007, the applicant Mr Barton had a conversation with Mr Westgeest. Mr Westgeest told him that they were undertaking a second storey extension. Mr Barton said he did not think he had any issues with that. Mr Barton understood that the roof line and height would be the same, although Mr Westgeest does not seem to have said anything specific in that regard.

14 The applicants received no notification from the council of any proposed development and saw no plans of the extension. They did not notice any public advertisement in the local newspaper. In fact such an advertisement appeared on 3 February 2007.

15 Construction commenced in mid March 2007. During construction the Westgeests resided with Mr Westgeest's parents. About a week after building work commenced, Mr Westgeest sought and obtained permission from Mrs Barton to erect scaffolding on the applicants' property to facilitate building access to the second storey extension.

16 After the scaffolding had been put up across the common boundary and within two or three weeks of commencement of construction, the roof was being erected and sarking was being placed on the frame and roof. As soon as this occurred the applicants noticed that the natural sunlight to their house was affected.

17 On 3 April 2007 Mr Barton telephoned the council and complained to Mr McCallum that the extension was huge, blocking out their sunlight and depressing. Mr Barton also expressed concerns about the applicants' privacy. Mr McCallum acknowledged that he was instrumental in getting the Westgeest's development through the council and said he would try to set up a meeting with Mr Hodges, the council's Manager for Building and Environment and would get back to him. Mr Barton proposed that the meeting be two days later.

18 Next day Mr Barton telephoned Mr McCallum about the meeting. He was told that Mr Hodges was reviewing the file; that the earliest meeting date would be late next week; that a time and date could not be arranged; and that "You're not going to get what you want". Mr Barton said that the tone of Mr McCallum's voice was unhelpful and aggressive.

19 In late March or early April 2007, Mr McCallum inspected the work. He suggested to Mrs Westgeest that the Bartons had some issues with the extension but he was not specific.

20 In early April 2007 Mr Barton went to the local library and ascertained that the development application had been advertised in the local newspaper on 3 February 2007 and that notice of approval was advertised in that paper on 10 March 2007. He subsequently complained to an Orange City councillor, Mr Chris Gryllis, about the matter. He expressed concern that Mr McCallum would not give him a date for a meeting with Mr Hodges, that the building was going ahead and that something needed to be done quickly. He was advised to speak to Mr John Miller who was on the heritage committee. He immediately did so and Mr Miller told him he would organise a meeting with Mr Hodges.

21 On 5 April 2007 Mr Barton sent a letter to Mr Hodges: As I believe you are aware, I have lodged a verbal object [sic] against a development proceeding at 315 Lords Place Orange with Gordon McCullum. I have also tried to organise a meeting to discuss this extension originally tentatively organised for Today 5 April 2007. This was cancelled by Gordon due to a complete case review of the application process by yourself. I was unable to get a confirmed time for next week when Gordon indicated that a meeting may proceed.

I wish to lodge a formal objection with Orange City Council over the development at 315 Lords place [sic] Orange. I would like a stop work order be place [sic] on the site until this mater [sic] is resolved. I am very concerned about work continuing until before my objections are resolved.

It is important that our meeting proceed as a matter of urgency as I have sort [sic] legal advice and they have advised that it would be good if we had met prior to our application to the Land and Development Court [sic]. I have a meeting with my Legal representative on Tuesday to discuss this matter further. I wish to advise that I will be informing my legal representative to proceed to the Land and Environment Court immediately, if the matters are not resolved prior.

I look forward to working through these issues with Council and reaching a solution. 22 Next day Mr Barton was told by Mr Miller that a meeting had been arranged with Mr Hodges for Wednesday 11 April.

23 On 7 April Mr Barton happened to see Mr Westgeest next door and told him that they were putting in an objection with council regarding extensions because of the overshadowing problem and that it was cutting out all their light, and that they were advised it would substantially affect the value of their home and make it difficult to sell. Mr Westgeest told him that when they made the development application he told his wife that he didn't think it would get through and that, if it didn't, they might have to move to a bigger house. Mr Barton said "I think council has screwed both of us. I'm sorry to take action which might impact on you. I'm seeking legal advice".

24 On 11 April 2007 Mr Barton met with Mr Hodges and Councillor Miller. Mr Barton said he had legal advice that the development did not comply with the council's development control plan and was told (among other things) that the council had agreed to a variance from that plan. At Mr Barton's request, Mr Hodges spoke by telephone to Mr Barton's solicitor. Mr Hodges then told Mr Barton that the council would have to investigate its options and seek legal advice; that he would get back to him within a couple of hours; and that council had been under no obligation to consult with or advise him of the proposed development.

25 On 12 April Mr Barton told Mr Westgeest that he had been advised that if he could not resolve the matter with the Westgeests and the council then he would have no other option than to go to the Land and Environment Court and request demolition. Mr Westgeest said he was going to speak to the council.

26 On 12 April 2007 there was a meeting between Mr Dominic Westgeest, his father Mr Bart Westgeest and Messrs Hodges and Renike from the council. A council file note of the meeting, which I infer was made by Mr Hodges, records: DOM & BART WESTGEEST

Advised we had received an objection. I was awaiting advice from Council's solicitor which relates to a draft letter to Westgeest advising of the object and suggesting he cease construction until this could be investigated.

I expressed a number of time that this letter was to be used without prejudice and admission by Council.

I suggested Westgeest obtain his own legal advice on the matter, particularly when he asked why should he stop when he has consent.

27 The rest of the photocopy of this file note in evidence is slightly cut off on the left hand margin (I understand it is what the council produced in response to a notice to produce). Reconstructing it as best as I can, it records: …Westgeest advised he had this morning been contacted by …neighbour Barton, who advised he was not going to lay down on this, as Council had given him a hard time with his 3 previous applications and thus would be taking the matter to the L&E Court. Dom asked how long the stop work would be around, as Bricklayers …gyprocking was scheduled for this Monday. I advised I could not answer that question, Allan said these things take time. I advised this may involve many parties from legal representation, through to insurers, but the bottom line is it unclear at this stage regarding the basis of objection and I won't know more until I hear from our solicitor, …advised him I would contact… Dom also advised that neighbour suggested his house value has dropped already by $100,000. He apparently said it was expected to have a value of $600,000 now it's $500,000.

28 After the meeting Mr Westgeest told his wife the council had asked him to stop work.

29 The "draft" council letter referred to by Mr Hodges in this council file note was not sent but a copy of such a draft letter dated 12 April 2007 and addressed to Mrs Westgeest was obtained from the council's file during the proceedings and is in evidence. It states: Recently Council received an objection to Development Application 20/2007(1), which pertains to the construction of alterations and additions to your dwelling house at 315 Lords Place Orange. It has been alleged that the consent granted by Council to the development is void and would be set aside by the Land and Environment Court. Indeed a specific threat of such a Court action has been made.

Council is undertaking an urgent investigation into the issues raised by this objection.

It appears that pending the outcome of these investigations that it would be prudent for there to be no further construction works carried out on the additions and alterations that are the subject of the application. Such suspension would serve to maintain the status quo as at the present date.

Council looks forward to meeting with you to discuss the issues that have been raised by the objection in the near future and will contact you to do so once the objection has been investigated further.

Would you please advise of your position regarding suspension of building works. In doing so would you please indicate whether there has been any other communication with you regarding the validity of the consent granted and the continuation of the building works.

Please note that this letter is issued without prejudice and is not to be taken as any admission by Council in regards to the assessment processes carried out by Council.

If you require further information regarding this matter, please contact Council's Manager Building and Environment, Mark Hodges on [phone number inserted]. 30 On 12 April 2007 the applicants' solicitors sent the following letter to the council: I refer to my telephone conversation with Mark Hodges on 11th April 2007. In order that I might properly advise Mr Barton in relation to his rights in relation to the development taking place at 315 Lords Place could you please provide me with a copy of the Development Application and the Development Approval Conditions for the current extensions at 315 Lords Place. 31 On 16 April 2007 Mrs Westgeest's solicitors wrote to the council stating: Our client understand [sic] that the adjoining neighbours Mr Greg & Ms Amanda Barton have expressed concerns to Council as to the building that is now partially constructed pursuant to the DA, the development approval process and have indicated that they intend to take action against Council in connection with the DA. We also confirm Council's request that our client cease activity on the building site whilst the issue is resolved with Mr & Mrs Barton.

At this stage, out client is not prepared to cease activity on the building site. Our client has a valid approval and is intending to proceed with that approval. Our client currently has on site weekly hire scaffolding and has made arrangements for sub-contractors to proceed with the installation of windows, bricking and Gyprocking. The property is our client's family home and any delay in the building process will cause them significant dislocation and expense. 32 On 16 April 2007 Mr Barton unsuccessfully tried to speak to Mr Hodges by telephone but succeeded on 17 April when Mr Hodges told him: I have spoken to Council's solicitor and also our insurance company. At this stage we are going to send a letter to the Westgeests requesting that they stop building while your objections are investigated. It could take a long time to sort out because of the number of people involved. 33 Contrary to this statement, the council never sent a letter to the Westgeests. However, by letter dated 23 April 2007 the council provided the applicants' solicitors with copies of documents they had requested in their solicitors' letter of 12 April.

34 Meanwhile, on 20 April 2007 Mr Barton noticed that the building work was still progressing and informed Mr Hodges by telephone. Mr Hodges said that the council had received a letter from Mrs Westgeest's solicitors indicating that they would not be ceasing work.

35 On 15 May 2007 the applicants' solicitors wrote to Mrs Westgeest stating: Please note that we act for Greg and Amanda Barton. You are aware that our clients have grave concerns about the development which is currently occurring on your property involving second storey extensions and the effect that that will have on our clients and the amenity of their home particularly in relation to the significant overshadowing that your development will create in respect of the Barton's property.

We have in recent weeks investigated the circumstances under which your Development Application was considered and approved by Orange City Council and we have also obtained for our clients advice from a Barrister and Town Planner, both experienced in this area.

I am informed that the Council has previously requested that you suspend works on the development pending investigations by Council and our client as to the circumstances of the Development Approval. I understand that on legal advice you have declined to do so.

We confirm that we now have instructions from Mr and Mrs Barton to file, as soon as possible in the Land and Environment Court, a Class 4 Application seeking, amongst other things, a Declaration from the Court that the Development Consent issued by Council on 14th February 2007 and published in the Central Western Daily on 10th March 2007 is void. If that Application is successful it would follow that an order for demolition of the development may be made.

Under the circumstances, we require you to cease any further building work in respect of the development pending the order of the Court. You will be joined as a party to the proceedings and anticipate being able to serve you with a copy of our clients' Application within the next ten (10) days.

In the event that you decline to cease building works such proceedings will be commenced without further notice. 36 When Mrs Westgeest received the letter of 15 May 2007, all work had been finished except for the internal fitout and approximately $70,000 of expenses had been incurred. The scaffolding was still up at a weekly hire; they could not afford to get it dismantled and put up again; and they were living out of their home with her in-laws and wanted to get back as soon as possible.

37 Mrs Westgeest's solicitors replied on 18 May 2007 stating: Our client's building work is currently being carried out in accordance with the valid DA. At this stage, our client has no intention of stopping the building work. We note that the above letter is the first correspondence our client has received in relation to the building work notwithstanding that the work to date has included the roofing, bricking, bagging, Gyprocking and the house is now at lockup stage. Clearly your clients have been aware of the building work for a considerable time, and have chosen not to take action to date.

In the interim, if you would provide us with a copy of your clients' advice from Counsel and consultant town planner, and our client will consider same and her position. 38 There was no reply.

39 The applicants filed their Application with the Court on 6 June 2007 and served it on 12 June 2007. Until service (and perhaps not until points of claim were filed in early August) no precise legal grounds had been communicated to Mrs Westgeest as to why the development consent was said to be invalid. No interlocutory injunction was sought. An Amended Application was filed on 11 December 2007, in which the relief claimed was as follows:

1. A declaration that the development consent is invalid. 2. An order that Mrs Westgeest by herself, her servants, agents or contractors be restrained from carrying out or causing, suffering or permitting any work to be carried out at the premises in purported reliance upon the development consent. 3. An order Mrs Westgeest by herself, her servants, agents or contractors demolish or cause to be demolished any alterations or additions carried out on the premises in purported reliance upon the development consent.

40 On 23 July 2007 Mrs Westgeest received from the council an Interim Occupation Certificate to occupy her house and a list of works that council required to be completed. Many of those works have been completed.

41 Mrs Westgeest borrowed $100,000 from a bank to pay for the extension work. The Westgeests do not have the financial resources to pay for demolition of the extension and restoration, nor for significant modification work to their extension. Her expenses in these proceedings far outweigh their meagre savings.

42 Mrs Westgeest retained an architect to determine whether there was a practical solution to the problem other than demolition of the extension. The architect's advice was that in order to replicate, as far as possible, the amount of light and heat previously available to the applicants in their kitchen and living area, there could be installed in that area three double glazed skylights, a sub-tunnel with flexible shaft and remote controlled blinds to stop summer glare, at a cost of approximately $10,000. In that regard, at the hearing on 11 December 2007, Mrs Westgeest gave the following undertaking to the Court: I, Kerryn Westgeest, undertake to the Court to cause to be supplied and installed, or alternatively to pay for the supply and installation, at 313 Lords Place Orange of:-

1. The three (3) Velux FS108 550mm x 1400mm fixed skylights with heatstop low E coated double glazing; 2. One (1) Velux 350 diameter suntunnel with flexible shaft; and 3. Three (3) remote controlled blinds. Provided any such request is made within six (6) months of the date of determination of these proceedings by which the Court decides not to make the Order No 3 in the Class 4 Application filed on 6 June 2007.

The supply and installation or payment thereof is to be made within one (1) month of the making of a written request to me. DISCRETION 43 The issue between the applicants and Mrs Westgeest is whether the Court should exercise its discretion to order demolition of the addition to her house. Section 124(2)(b) of the Environmental Planning and Assessment Act 1979 empowers the Court to order the demolition of a building or work erected or carried out in breach of the Act. Section 124 provides in part: 124 Orders of the Court

(1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. (2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may: (a) where the breach of this Act comprises a use of any building, work or land - restrain that use, (b) where the breach of this Act comprises the erection of a building or the carrying out of a work - require the demolition or removal of that building or work, or (c) where the breach of this Act has the effect of altering the condition or state of any building, work or land - require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed.

44 The Court has a wide discretionary range within which to consider the formulation of injunctions. In Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 220 CLR 472 at [91] Kirby J agreed with the following dictum of Street CJ in F Hannan Pty Ltd v Electricity Commission (NSW) (No 3) (1985) 66 LGRA 306: The width of the powers and jurisdiction of the Land and Environment Court is apparent from the legislative provisions ... Likewise it is apparent that the court enjoys a wide discretionary range within which to consider the formulation of orders or to remedy or restrain breaches of the planning legislation ... It is the duty of that Court, in formulating `such order as it thinks fit', to have regard at all times to the pursuit of the objects of the [EPAA] as set out in s 5. This involves, in appropriate cases, the evaluation of matters extending beyond the mere determination of the rights and matters in dispute between the immediate parties. It involves due weight being given to the public interest and the interests of other affected persons in the overall context of the pursuit of the objects broadly set out in s 5

45 Guidelines for the exercise of the Court's discretion to grant or decline injunctive relief were set out in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339 - 340 by Kirby P, and included the following (omitting citations): 2. It is undesirable to endeavour, by drawing upon decisions in differing fact situations which have presented in earlier cases, to attempt to catalogue or classify all of the circumstances which will enliven the exercise of the discretion in cases yet to come. By the statute, the discretion is not fettered. It is not limited either to particular classes of case or to limited or special cases… Nonetheless, keeping that salutary warning in mind, it can be instructive, and helpful in the achievement of the generally consistent application of the law (which the creation of a specialist Land and Environment Court facilitates) to consider the variety of circumstances in which the discretion conferred by the section has been exercised. The Council itself conceded that relevant factors would include the fact that the breach complained of was a purely technical breach which was unnoticeable other than to a person well versed in the relevant law… or the fact that the local authority had delayed the bringing of its action (ibid at 125), or the fact that, far from having an adverse effect on the environment or the amenity of the locality, the breach, in reality, had been shown to have a beneficial effect…

4. 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… Because s 123 of the Act permits any person (and not just the Attorney-General or a person with a sufficient interest), to bring proceedings in the Court for an order to remedy or restrain a breach of the Act, there is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid…

7. Where the relief is sought against a static development (ie the erection of a building) which, once having occurred can only be remedied at great cost or inconvenience, the discretion may, in the normal case, be more readily exercised than where what is involved is a continuing breach by conduct which could quite easily be modified to bring it into compliance with the law... But this observation is simply a reflection of the judicial perception in balancing, on the one hand, the public interest in equal compliance with the law and, on the other, the degree of irremediability occasioned by the breach and the expense or inconvenience which would follow the law's enforcement… It does not amount to a hard and fast exception to the discretion. That discretion must be exercised in every case in which it is invoked. Nor is it a reason to refuse relief where no static development can be proved.

Mahoney JA said at 346: I am conscious of the duties which a planning regime imposes upon a local council. I made reference to this in Blacktown Municipal Council v Friend (1974) 29 LGRA 192. I remain of the view which I there expressed. But it should be understood that each case depends upon its own facts and particularly is this so where what is involved is the exercise of such a discretion as this. The possibility that this may not be sufficiently understood, if it be so, cannot, in my opinion, warrant the court doing otherwise than it should in a particular case. 46 In ACR Trading Pty Ltd v Fat-sel Pty Ltd (1987) 11 NSWLR 67 at 82 Kirby P said of this Court's discretion: 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.

47 The following cases illustrate the exercise of this Court's discretion to grant or refuse mandatory injunctions for the demolition of structures in a variety of circumstances. In Tynan v Meharg and Newcastle City Council (1998) 101 LGERA 255 (NSWCA) a dwelling-house had been erected less than a metre from a common boundary instead of 12.4 metres from it as required by building approvals. The Court of Appeal upheld a demolition order made by this Court. The most important factors weighed by the Court of Appeal were the seriousness of the breaches, their continuing nature (unless remedied), the hardship to the appellants, the minor harm to the environment and the need for orderly enforcement of public duties: at 260. In Woollahra Municipal Council v Barlow (1988) 66 LGRA 248 balcony columns had been erected contrary to a planning ordinance. Although the respondent had acted bona fide the Court of Appeal ordered that he demolish the columns. The order was suspended for six weeks and he was granted liberty to apply for an extension of that time.

48 In Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 there was a minor non-compliance with conditions prescribed by a planning statute for the front alignment of a house. The trial judge refused a mandatory injunction requiring demolition of the house. The Court of Appeal held that he was right to refuse the injunction on the ground that the appellant was disentitled to equitable relief on the ground of laches and the owner's hardship. In Woollahra Municipal Council v Alcaine (1986) 59 LGRA 40 the respondent built a fence in defiance of a council imposed height restriction. The council sought a demolition order. Eight neighbours spoke highly of the wall's design and its advantage to them and most criticised the council for seeking demolition. Cripps CJ declined to order demolition, holding that there was no planning reason beyond rigid adherence to policy to justify the height limit in this case and the council's concern to vindicate its authority could have been sufficiently satisfied by a prosecution. In Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 a road had been illegally constructed across the appellant's land. In order to stop the public who used the road from trespassing on the land, the appellant constructed gates across the road without obtaining development consent. The Court ordered her to remove the gates. The Court of Appeal held that the discretion had miscarried and set aside the order.

49 In Attorney General v Greenfield (1964) 79 WN (NSW) 241 council consent to building work had been given contrary to statute. Myers J declined to restrain continuance of the building works because the defendant had acted innocently and honestly with the authority of the council. The case is distinguishable because there the erection caused no specific harm to any person nor to the neighbourhood generally, whereas in the present case much harm has been caused to the applicants. A similar case was Lord v Hiscock (1980) 47 LGRA 168 where Waddell J declined to make a demolition or rectification order. A point of distinction is that although there was some injury to the amenity of the plaintiff's property, it was minor relative to the harm caused to the applicants in the present case.

50 In the present case, the main discretionary considerations are that:

(a) the applicants and Mrs Westgeest are all innocent victims of the council's conduct, as Mr Barton in effect acknowledged to Mr Westgeest on 7 April 2007; (b) Mrs Westgeest acted honestly in accordance with a development consent, not without or in defiance of a development consent; (c) the hardship to the applicants and their family if a demolition order is not made; (d) the hardship to Mrs Westgeest and her family if a demolition order is made; (e) the fact that the Westgeests were on notice of the applicants' complaints by 7 April and on notice by 12 April that, if necessary, the applicants would approach the Court; (f) the delay by the applicants in bringing proceedings; (g) the common ground that if the council did give proper, genuine and realistic consideration to relevant mandatory matters (contrary to my finding), no reasonable consent authority could have granted the consent; (h) the undertaking given by Mrs Westgeest to the Court: see [42] above.

51 Mrs Westgeest's undertaking is, I think, of little weight. It only gives the applicants an option, at the cost of Mrs Westgeest, to install skylights and related items in their house in order to mitigate to a degree the effect of the extension.

52 As for delay, Mrs Westgeest submitted that there was delay in putting her on notice of intention to commence proceedings and seek a demolition order, and delay in bringing the proceedings until 6 June 2007, some four days before the expiry of the period after which these proceedings would have been statute barred under s 101 of the Environmental Planning and Assessment Act 1979 (public notice by advertising of the grant of consent occurred on 10 March 2007).

53 I am unable to criticise the applicants for delay prior to their solicitors' letter of 15 May 2007. When the applicants became aware of impacts on their property by way of overshadowing they complained promptly to the council and then to the Westgeests in early April 2007 and sought to resolve the matter with them. Mr Westgeest was told on 5 April that they were in communication with lawyers and had received some legal advice and was warned on 12 April that they would approach the Court if the matter was not resolved. The applicants were impeded by the council's lack of urgency for most of April 2007. Given the urgency of the situation, the council was tardy in not meeting with Mr Barton until 11 April, some eight days after he had urgently requested a meeting on 3 April and in taking 11 days until 23 April to respond to his solicitors' request of 12 April for copies of relevant documents. The applicants' solicitors first wrote to Mrs Westgeest on 15 May. Given the time needed to obtain the advice of counsel and a town planner, it is difficult to be critical of a delay of three weeks between receipt of documents from the council and the writing of the letter. By 15 May the horse had virtually bolted because the works were largely complete. Therefore the delay thereafter of some weeks before proceedings were commenced and served is of little significance.

54 Weighing all the considerations, on balance I propose to exercise my discretion by making a demolition order.

55 I propose to grant a stay of the demolition order for six months in order to give Mrs Westgeest an opportunity to make the necessary arrangements. The matter of financing the cost of demolition and restoration looms large. Given that the council is responsible for what has occurred and its consequences, the council may wish to be involved in that regard. I also propose to grant her liberty to apply to extend that time if it should eventuate that it would be just to do so. Although not relevant in the present case, I note in passing that in some cases it may be appropriate to suspend the operation of a demolition order in order to allow an opportunity to make an application for a construction certificate or a development consent to regularise the situation: Tynan v Meharg (1998) 101 LGERA 255, 259 (CA); Tynan v Meharg and Newcastle City Council (No 2) (1999) 102 LGERA 119; Ireland v Cessnock City Council (1999) 103 LGERA 285 at [34].

56 Given the council's responsibility for what has happened, questions arise as to whether the council should be ordered to pay (a) the other parties' costs of the proceedings and (b) the cost of demolition and restoration of Mrs Westgeest's house. As to the latter, in Vaughan v Byron Shire Council (1999) 103 LGERA 321 this Court had ordered the Vaughans to demolish that part of their house which encroached on the council's adjoining land. An appeal was allowed on a question of law and the matter was remitted to this Court to exercise the discretion. Fitzgerald JA, however, considered that it was preferable that the Court of Appeal exercise the discretion in order to save time and costs and held that, in the exercise of the discretion, both the council and the Vaughans should pay for the cost of removal because they were equally responsible: at 333 -334: In my opinion, the circumstances found by the Land and Environment Court are such that the position should be regularised by the removal from lot 6 of the portion of the house constructed on that lot, but the Vaughans should not bear the entire costs of removal. Both parties contributed to the problem, and I consider that neither is significantly more or less responsible than the other. In my opinion, they should be equally liable for the cost of removal of the portion of the house constructed on lot 6 from that lot. His Honour proposed an order that required both the council and the Vaughans to remove and relocate the encroaching part of the house.

57 Subject to the stay, liberty to apply and resolution of the costs questions referred to at [55] and [56] above, I propose to grant orders along the lines of those sought in the Amended Application summarised at [39] above. The matter will be listed before me on 14 March 2008 for the purpose of making final orders including as to costs. The parties are to bring in agreed or competing short minutes of orders on the preceding day. The exhibits may be returned except for exhibit 1 (Mrs Westgeest's undertaking to the Court).

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