Carriage v Stockland Development Pty Ltd & Ors

11 The Applicant's counsel argued that the recent High Court decisions of Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 are authority for the proposition that if an act is invalid because the actor lacks power to perform it, the act has no legal existence from inception and is accordingly a nullity; see also Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 343. Accordingly, the Applicant argued that the Court had little discretion in deciding if the whole or part of the relevant construction certificates was invalid, rather as a result of this recent case law, I am required to declare the whole invalid.

12 Alternatively, the Applicant argued that if I do not accept the Applicant's primary argument and I consider that I am able to declare part of the construction certificates invalid, the decision of Talbot J in Wechsler v Auburn Council (1997) 130 LGERA 134 suggests that there is a legal basis for declaring the construction certificates valid in part.

13 The Applicant's counsel made further submissions as to the relief sought should I declare all or part of the construction certificates invalid. As I do not propose, for the reasons set out below, to make any consequential orders at this stage I do not set out these submissions.

The First and Fifth Respondents' Arguments 14 The First and Fifth Respondents argued that I should not make any declaration as to the invalidity of the construction certificates as such a declaration would be lacking in utility. It would not provide any basis for relief as the evidence so far tendered in the proceedings establishes that there would be a real difficulty in framing orders for relief. In this regard the First and Fifth Respondents relied on the following comments made by me at [30] of my judgment of 28 September 2004: … However, conditions such as 13, 14 and 23 clearly contemplate that fill will be placed somewhere on the land the subject of the development consent, and includes that part of Lot 235 where fill has been placed. Further, it is the evidence of Mr Hedge, which evidence I accept, that engineering works, including fill, are necessary in a subdivision of this nature. What is in issue here is whether the scale of the engineering works carried out on Lot 235 exceeds what is reasonable for a certifier to approve, having regard to the Stages 2-6 Consent, or is so beyond the scope of work for which development consent has been issued that no certifier, acting reasonably, could form the view that the works were not inconsistent with the Stages 2-6 Consent.

15 The First and Fifth Respondents argued that this showed that I accepted that the Stages 2-6 Consent necessarily authorised the placement of some fill on Lot 235 and that it was only the extent of fill placed on Lot 235 which I found was not authorised. The First and Fifth Respondents argued that, given this, it was impossible to frame any remedial orders without first determining the extent of fill which was authorised by the Stages 2-6 Consent.

16 Further and in the alternative, the First and Fifth Respondents argued that as the findings in my judgment related only to the placement of fill on that part of Lot 235 which is zoned "Zone 2(b) (Residential "B" Zone)", and this was only a very small part of the works and land covered by the construction certificates, I should exercise my discretion under s 124 of the EP&A Act and only declare the construction certificates invalid as regards this area of the land.

17 The First and Fifth Respondents' counsel argued that none of the High Court cases referred to restrict the Court's wide discretion under s 124 of the EP&A Act which provides that: (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.

18 In this regard the First and Fifth Respondents relied on F Hannan Pty Ltd v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306 where Street CJ held at p 311 that: Well established canons of construction require a mandatory significance to be placed upon the phrase in subs (1) "may make such order as it thinks fit to remedy or restrain the breach". Where an actual or threatened breach has been established the Court is obliged to consider what should be done to remedy or restrain the breach. In determining this, the Court is given an extremely wide charter. Falling expressly within that charter are the powers in subs (2) to restrain an infringing use, to require demolition or removal of an infringing building or work and to require reinstatement so as to efface the consequences of the infringement. These are but three ways open to the Court to discharge its duty under s124(1) to make "such order as it thinks fit". This last mentioned phrase empowers the Court to 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. In Re The Victorian Farmers' Loan and Agency Co Ltd (1897) 22 VLR 629 it was stated at 635: "It must be remembered that under S145 the Court may make such order as to it may seem fit, which means, as I understand it such an order as the Court thinks just." This was quoted with approval in Queensland Estates Pty Ltd v Co-Ownership Land Development Pty Ltd [1969] Qd R 150 at 157. If, in a particular case, there is an actual or threatened breach, but either within its discretion or for other valid reasons, the court does not "think" that any order is "fit" to remedy or restrain such breach, then relief will be withheld. Its obligation to "make such order as it thinks fit" necessarily postulates being able to formulate such an order. If the court ultimately decides that there is no order "fit" or just to meet the case, a decision to this effect will be a proper discharge by the court of its jurisdictional duty under s124. 19 The First and Fifth Respondents noted that Kirby J in Hillpalm v Heaven's Door Pty Ltd [4004] HCA 59 (1 December 2004) at [73] recognised these statements by Street CJ as being "generally accepted as the classic exposition of the nature and scope of the jurisdiction and powers of the Land and Environment Court to grant remedies for breaches of the [EP&A Act]".

20 The First and Fifth Respondents argued that the circumstances in Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGRA 294 ("Canyonleigh") are broadly similar to those applying here and that the approach taken by Bignold J in that case should be applied here. The applicant in Canyonleigh challenged a development consent which granted consent to, inter alia, extensions to an equestrian centre, staff accommodation, guest suites, a facilities building and a golf course. The applicant was successful only in relation to the arguments it made concerning the golf course which was to be constructed on an area covered by Manna Gum forest. Bignold J held at p 321 that: If the Court were to declare the development consent wholly invalid the considerable efforts and money expended by the Second Respondent (i) in seeking and obtaining the development consent and (ii) fulfilling the conditions imposed on the deferred commencement consent would be aborted. …

As a matter of principle and in the exercise of discretion is it possible for these significant losses to be mitigated by moulding the remedy, as the legal consequence for the proven breach, so that it is at the one time both proportional and reasonable and referable to the breach but nonetheless vindicative of the statutory duty imposed by cl.8(1) of SEPP No.44, and the proper administration of the EP&A Act?

In my judgment s124 of the EP&A Act (as expounded by the Chief Justice in F Hannan Pty Limited v Electricity Commission of NSW (No.3) 66 LGRA 308) provides the basis, both as a matter of principle and power and in the exercise of discretion, to formulate a remedy that is both reasonable and proportional to the nature of the breach of statutory duty established by the Applicant in these proceedings, namely to regard the development consent as only partially invalid by virtue of the breach.

In so concluding I am of the opinion that the nature of the breach of statutory duty established in this case is neither technical nor trivial nor inconsequential… Having regard to the foregoing considerations, I have concluded that the appropriate form of relief, commensurate with the nature of the proven breach of statutory duty and vindictive of that statutory duty, is to declare the development consent invalid only to the extent that it permits the construction of the golf course and the associated club house because it is only these components which affect the Manna Gum forest and accordingly they are only components of the approved development that are apt to be affected by SEPP No.44. These components of the approved development are discrete, both functionally and geographically, from the other components of the approved development which are all located on Lot 202…

Finding 21 I do not think I have to finally resolve here whether there is a limit on the Court's discretion under s 124 of the EP&A Act by virtue of the High Court authorities relied on by the Applicant's counsel although my preliminary view is that I doubt that there is. Even in the orders first handed up by the Applicant at the outset of the hearing the relief sought in par 2 was limited in scope to only that part of Lot 235 where fill had been placed. I consider it is appropriate, given the wide discretion I exercise under s 124 of the EP&A Act, as identified in Hannan, that I make declaratory orders that the construction certificates are invalid only in so far as they relate to that part of Lot 235 on which fill has been placed, being that part which is zoned "Zone 2(b) (Residential "B" Zone)" under the LEP. I consider I do have a wide discretion to modify any orders to be made in accordance with the findings in the judgment of 28 September 2004. Having made that declaration it must follow given the clear provisions of the EP&A Act that the specified fill work has been done without development consent as required by s 76A of the EP&A Act. The second declaration sought by th Applicant should be made.

22 It was argued by the First and Fifth Respondents that a mere declaration without any remedial order was futile and inappropriate. As it had, I thought, already been agreed with the parties that an appropriate way to proceed was that I would firstly consider whether I should declare the construction certificates invalid in part or in whole and, if I did so, then determine whether remediation orders are necessary as that determination is likely to involve further evidence and submissions from the parties, that submission from the First and Fifth Respondents' counsel is somewhat surprising. I am following a course that is seeking to minimise the amount of hearing time involved for the parties while endeavouring to deal with the large number of issues sought to be raised by the Applicant in these proceedings as efficiently as possible.

23 The breach of the EP&A Act which I found in my judgment of 28 September 2004 is, in my view, substantial and the duty to comply with the EP&A Act is significant. The fact that I am not now making remediation orders and have yet to determine whether such orders are appropriate does not, given my findings in my judgment of 28 September 2004 and the manner in which it is proposed that the matter proceed, suggest to me that I should not make any declaration in relation to the invalidity of the construction certificates and consequently the carrying out of development without development consent. Nor do I necessarily accept the submissions of the First and Fifth Respondents made in reliance on [30] of my judgment of 28 September 2004. As I put to the Respondents' counsel, one clear starting point is the contour lines shown on the relevant part of Lot 235 in the development consent plans issued by this Court in assessing how much fill may need to be removed.

24 As submitted by the Applicant's counsel, the course which I intend to adopt here was also adopted in Oshlack v Iron Gates Pty Ltd (1997) 130 LGERA 189 where Stein J declared that certain works had been carried out in breach of the conditions of a development consent but did not make orders for remediation as further evidence was required before any such orders could be made. Pearlman J later heard the further evidence and submissions of the parties in relation to the question of remediation and ultimately made orders for remediation in Oshlack v Iron Gates Pty Ltd [1997] NSWLEC 89 (4 July 1997). I consider that it is appropriate that I broadly follow the same course here.

25 The parties, while not agreeing for different reasons that orders of partial invalidity could or ought be made, did agree that if the Court was minded to do so the appropriate wording would be as follows: The Court declares that, to the extent that they refer to work relating to that part of Lot 235 DP1048602 zoned residential 2(b) under Wollongong Local Environmental Plan 1990, Construction Certificates 214/02 and 215/02 issued by the Fifth Respondent to the First Respondent on or about 8 February 2002 are invalid.

The Court declares that the First Respondent by itself, its servants, agents and contractors has carried out development requiring development consent on that part Lot 235 zoned residential 2(b) without first obtaining a valid development consent in breach of s 76A(1) of the Environmental Planning & Assessment Act 1979. I intend to make declarations in the form agreed by the parties.

26 The Applicant has also sought orders restraining work being done on Lot 235 but the evidence of Paul Hedge in the main hearing before me, as contained in his affidavit sworn on 18 March 2004, was that the work to be done on Lot 235 in relation to fill has been completed. The only remaining work concerns the removal of: (a) a temporary stockpile of material intended to be ultimately placed on the AIR land; and (b) a mound of rubble placed by persons unknown on Lot 235. It may be that these works have now been completed but I have not heard any evidence as to this. Even if the removal of this material is still outstanding I do not consider that this work should be restrained as it is essentially separate from the fill intended to be placed permanently on that part of Lot 235 zoned residential.

27 The Applicant also seeks to restrain activities likely to move or damage aboriginal objects. In my judgment of 28 September 2004 I held that permit no 1427 granted pursuant to s 90 of the National Parks and Wildlife Act 1974 in relation to Lot 235 was valid. This permit has now expired. With the possible exception of the removal of the material referred to above, there is no further work to be done on that portion of Lot 235 zoned "Zone 2(b) (Residential "B" Zone)". The First Respondent is aware of the need to obtain the necessary permit if work is undertaken which is likely to damage or destroy aboriginal objects. I do not see any basis for issuing such an order at this stage.

Ground 3 28 In my judgement of 28 September 2004 I stated at [38] to [39] that: If successful in relation to the invalidity of the construction certificate ground then the Applicant argued that s 118A(2) or s 118D(1) of the NP&W Act has been breached as the Applicant claims that the fill placed on Lot 235 resulted in an endangered ecological community being either "picked" within the meaning of s 118A(2) or "damaged" within the meaning of s 118D(1). Both s 118A(3)(b) and s 118D(2)(b) of the NP&W Act provide that it is a defence to: … a prosecution for an offence against this section if the accused proves that the act constituting the alleged offence … was essential for the carrying out of … (i) development in accordance with a development consent within the meaning of the Environmental Planning and Assessment Act 1979 … As I have yet to determine whether I will declare the construction certificates invalid and it is this which will determine whether or not the fill on Lot 235 had development consent, I will postpone giving my decision on Ground 3 until I have finalised the orders in relation to Grounds 1 and 2.

29 As I have determined to declare part of the construction certificates invalid and to make a consequential declaration that development has been carried out without development consent, I now need to resolve the issues raised in Ground 3. I consider that it is preferable that I do so before there is further evidence gathered in relation to the remediation ground. Once my decision on Ground 3 is finalised a timetable for consideration of evidence and issues relevant to remediation can be decided on.

Orders: 30 I make the following declarations:

1. Construction Certificates 214/02 and 215/02 issued by the Fifth Respondent to the First Respondent on or about 8 February 2002 are, to the extent that they refer to work relating to that part of Lot 235 DP1048602 zoned residential 2(b) under the Wollongong Local Environmental Plan 1990, invalid.
2. The First Respondent by itself, its servants, agents and contractors has carried out development requiring development consent on that part of Lot 235 zoned residential 2(b) under the Wollongong Local Environmental Plan 1990 without first obtaining a valid development consent in breach of s 76A(1) of the Environmental Planning & Assessment Act 1979.
3. Costs are reserved.

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