Cassaniti & Anor v City of Canada Bay Council

4. In relation to exempt development (development not requiring development consent) the LEP, by Amendment 46, provides as follows: 7A (1) Development listed in Schedule 10 is exempt development, except as provided for by subclauses (2) and (3). (2) Development is exempt development only if: (a) it does not cause interference with the amenity of the neighbourhood because of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil or otherwise, and (b) it complies with any deemed-to-satisfy provisions of the Building Code of Australia relevant to the development, and (c) it does not contravene any condition of a development consent applying to the land, and (d) it does not obstruct drainage of the site on which it is carried out, and (e) it does not restrict any vehicular or pedestrian access to or from the site, and (f) it is carried out at least one metre from any easement or public sewer main and complies with the building over sewer requirements of the Sydney Water Corporation applying to the land, and (g) it does not require a tree to be removed.

5. Schedule 10 of the LEP defines exempt development and includes satellite dishes as follows:

DEVELOPMENT TYPE CONDITIONS · roof or rear yard mounted · maximum diameter 1.5m Erection of a building or structure · the building work must not reduce the structural integrity of the building or involve structural alterations and must be structurally adequate Satellite dish · one only for each lot · maximum height 1.8m as measured from the roof level on which it is mounted · installed to manufacturer's specifications

Issue 1 the invalidity of the Notice 6. The Applicants allege in written submissions (only (i) and (iii) were referred to in oral submissions) that the Notice issued by the Respondent is invalid on a number of grounds because: (i) it fails to give the terms of the proposed Order as required by s 121H of the EP&A Act, (ii) it fails to specify in the body of the Notice the property on which the unauthorised development is alleged to have been carried out (the address of the property is located in the heading of the Notice), (iii) it fails to refer to the need for a construction certificate and (iv) the surname of the recipients of the Notice is incorrectly spelt. The Notice is addressed to Cassanita, not Cassaniti.

7. The terms of the Notice sent to the Applicants is in part as follows: Notice of Proposal to Issue an Order 4 Lea Avenue, Russell Lea Notice is hereby given that Drummoyne Council proposes to serve you, as owner of the above premises, Order No 2(a) under the provisions of Section 121B of the Environmental Planning and Assessment Act, 1979, on the grounds that an oversized satellite dish has been erected without prior Council approval. Therefore, Council will require the following works to be undertaken:
8. Remove the satellite dish.

Council proposes to allow a period of 30 days within which the Order is to be complied with. 8. In relation to the failure to set out the terms of the proposed Order, the Applicants argued that the Notice makes no reference to the planning controls which must constitute the basis for alleging the breach has taken place to the property upon which the alleged unauthorised development has been carried out. The Applicants relied on the decision of Bignold J in Van Haasteren v South Sydney Council (2000) 109 LGERA 252.

9. In relation to the failure to refer to the need for a construction certificate in the Notice the question is raised as to how detailed the reference must be to the basis on which the Notice had been issued under 2(a) in the table to s 121B(1). The relevant column in s 121B is set out as follows:

Column 1 Column 2 Column 3 To do what? In what circumstances? To whom? 2 To demolish or remove a building (a) Building is erected without prior development consent of consent authority in a case where prior development consent is required or is erected without prior development consent of a consent authority and a prior construction certificate in a case where both prior development consent and a prior construction certificate are required Owner of building

10. The Applicants argue that the Notice referred only to the failure to obtain prior Council approval rather than specifying whether there was a need to obtain development consent or a construction certificate prior to carrying out the development, the latter being required under s 81A of the EP&A Act. The Applicants argue that as a consequence, the Notice lacks the necessary particularity especially for an order for which non-compliance carries criminal sanctions.

11. In response to these submissions the Council argued that the Notice issued was valid in that it states all the essential ingredients required under s 121H and is clear on its face. It identifies the persons to whom the Order is proposed to be given, the intention to give the Order, the terms of the proposed Order and the period proposed to be specified as the period within which the Order is to be complied with.

Finding on Issue 1: validity of the Notice 12. (i) In my view the use of the word "terms" of the proposed Order in s 121H is not the same as the need to provide reasons in the Order under s 121L. It seems to me that the Notice is valid and complies with s 121H as it does clearly set out the proposed terms of the Order, namely, the removal, within 30 days of the Order, of the oversized satellite dish. The decision in Van Haasteren is concerned with the adequacy of reasons in an Order and is more relevant to the invalidity of the Order, which is dealt with below. (ii) In relation to the failure to specify the relevant property, given that the heading at the top of the Notice refers to the premises at 4 Lea Avenue, Russell Lea, the identification of the property in question has been adequately made.

(iii) I do not think the Notice needs to specify in greater detail the nature of approval required than it already does in order to make clear the basis on which it is issued under s 121B. (iv) The extent of the incorrect spelling of the Applicants' name is not sufficiently misleading to warrant declaring the Notice invalid.

Issue 2. The invalidity of the Order 13. The Order issued by the Council was as follows:

ORDER UNDER SECTION 121B OF THE ENVIRONMENTAL PLANNING & ASSESSMENT ACT, 1979 - ORDER NO 2(a) PREMISES: 4 Lea Avenue, Russell Lea · Pursuant to Section 121(B) of the Environmental Planning and Assessment Act, 1979, Council hereby orders you to remove the satellite dish erected in the rear yard of the subject premises. · This Order is given to you as the owner of the subject premises for the reasons that an oversized satellite dish has been erected without prior Council approval. The dish does not conform with Council's Exempt or Complying Development Control Plan. · You are required to comply with the terms of this Order within thirty (30) days from the date of service of this Order upon you. · Section 121Z of the Environmental Planning and Assessment Act, 1979 provides that a person upon whom an Order is served may appeal the Order or specified part of the Order to the Land and Environment Court within twenty eight (28) days after the service of the Order on the person.

14. The validity of the Order was attacked by the Applicants on numerous grounds.

(i) Failure to properly state reasons for giving the order 15. The Applicant argued that the Order fails to provide proper reasons as required by s 121L of the EP&A Act. Relying on the decision of Bignold J in Van Haasteren and Sheahan J in Stutchbury v Pittwater Council (1999) 105 LGERA 1 the Applicants argued it was not sufficient for an Order to merely restate the circumstances which must exist for the giving of an Order as set out in Column 2 of the table in s 121B of the EP&A Act. In Van Haasteren Bignold J stated: Once the nature of the power conferred by s 121B is truly appreciated (both as to (i) circumstances that enliven it; and (ii) the discretionary basis for its exercise), it becomes tolerably clear that the "reasons" that s 121L requires to be given are the reasons for exercising, in the particular case, the discretionary power.

No such reasons were given in the present case. The only matter that could possibly pass as "reasons" is the assertion that "the works were unlawfully carried out" and this simply repeats "the circumstances" that are required to exist to enliven the power. It inevitably follows that the Order given in the present case is entirely devoid of the "reasons" for the Order that the EP&A Act, s 121L requires to be given. (at 258) 16. His Honour (at 259) adopted the decision of Sheahan J in Stutchbury where his Honour had accepted that: (i) the mere restatement of the conditions which must be satisfied before the discretionary power to make the order arises is not the provision of reasons for the order…; and (ii) the reasons given must make intelligible the true basis for the decision to issue the order… so that (iii) the person who is affected by the order is fully informed of the basis for it and the reasons for issuing it, so that (iv) the affected person has sufficient information to decide whether to accept the order or appeal it…(at 16) 17. These cases have also been accepted in obiter by Lloyd J in Lederer & Ors v Sydney City Council [2001] NSWLEC 272. 18. The Applicants argue that the Council has discretion as to whether it takes civil or criminal enforcement action under the EP&A Act. There are other civil remedies available to the Council to enforce the EP&A Act such as seeking a mandatory Order under s 123 of the EP&A Act and, under s 121ZJ, the Council can choose to do the work itself if the Applicants fail to comply with the Order. The exercise of the Council's discretion is a significant matter and the reasons for issuing an Order must make the basis for exercising that discretion clear.

19. The Applicants submitted that the words "…an oversized satellite dish has been erected without prior Council approval" fail to meet the requirements of s 121L for providing adequate reasons, applying Van Haasteren and Stutchbury. These words merely state the circumstances required by Column 2 of the table in s 121B that a "building [has been] erected without prior development consent of consent authority in a case where prior development consent is required…".
20. It was submitted that the further words "the dish does not conform with Council's Exempt or Complying Development Control Plan" should be construed only as saying that the structure was erected without first obtaining development consent. Accordingly the words merely state the circumstances set out in Column 2.

(ii) Failure to refer to the LEP 21. The Applicants' second ground of attack is that the Order fails to refer to the relevant LEP. It refers only to the Council's Exempt or Complying Development Control Plan. No such Development Control Plan is in operation for the area where the relevant property is located. The need to obtain development consent does not arise pursuant to a development control plan and accordingly the Order is misleading in a key respect as is does not identify the planning control pursuant to which the alleged breach arises, and is invalid. The Applicants submitted that because Orders are essentially a criminal enforcement mechanism available to the Council the need to provide statutory Orders that are clear is essential. The decision of Cowdroy J in Foster v Sutherland Shire Council [2001] NSWLEC 89 was referred to in support of this approach.

(iii) The Order refers to a DCP 22. The Applicants argue the only documents relevant to this Order are the LEP and the Council policy on exempt development. The Order is therefore invalid as it refers to a DCP that does not exist.

(iv) The Order fails to specify the property 23. The Applicants argue that the Order fails to specify the property where the unauthorised development is alleged to have been carried out in the body of the Order. I have already held in relation to the Notice that it is sufficient that the property is referred to in the heading of the Notice, therefore applying the same reasoning, this ground is not made out.

(v) Failure to refer to the construction certificate 24. The Applicants argue the Order is invalid because it fails to refer to the need for a construction certificate specifically, but rather is in general terms. As the Order makes clear which part of s 121B it is issued pursuant to, I do not see that as fatal for this Order.

(vi) Misspelling of name 25. Finally the Applicants argue that the Order is also invalid because the name of the recipient is incorrectly spelled. I do not believe the error is so major as to be misleading.

Council's arguments 26. The Council conceded in its submission that no development control plan exists for the area in which the property in question is situated. The LEP incorporates all the relevant exempt development provisions. There is also an exempt and complying development policy adopted by the Council which is in virtually identical terms to the LEP. The reference to the Exempt or Complying Development Control Plan was not therefore misleading.

27. The Order was otherwise valid, it was submitted by the Council, in that it does provide sufficient reasons as required by s 121L, and the failure to comply with the LEP is identified on the face of the Order despite the lack of a specific reference to the LEP.

Finding on Issue 2: the validity of the Order 28. In relation to ground 1 as to whether the reasons provided are sufficient, Stutchbury and Van Haastaren require orders to include reasons which do more than state the criteria in the legislation as the basis for the order. This Order does not do that. In applying these cases it seems to me there is a danger in setting the hurdle for a valid order too high, as it is quite possible that the Council's principal reason for issuing an order may simply be the desire to enforce the law in relation to the matters set out in s 121B because the Council considers that response appropriate in the circumstances. Given that the exercise of the significant enforcement power under s 121B is a discretionary matter, it is nevertheless important that the reason for exercising that discretionary power be provided, as is required by s 121L of the EP&A Act. This need not be lengthy, but does require more than a recitation of the circumstances giving rise to an order under s 121B. On this ground the Order is also invalid.

29. In relation to grounds 2 and 3, I consider that the incorrect reference to the Development Control Plan and failure to refer to the correct LEP means the Order is invalid. Orders have serious implications for those receiving them as failure to comply with them can give rise to criminal sanctions. It is important that Orders be clear on their face and this must include correct references to the relevant planning controls which are being invoked in an Order. On this basis I find that the Order issued by the Council is invalid.

30. For the reasons set out in par 23, 24 and 25 I do not consider the Order is invalid on the basis of grounds (iv), (v) and (vi).

Issue 3: Does the development the subject of the Order constitute exempt development under the LEP? 31. Because I have already found that the Order is invalid it is not necessary to decide this issue. However, I will set out my conclusions on the matter as submissions were put to me on this issue. Clause 7A(1) and (2) are set out above at par 4.

32. On the Council's interpretation, the terms of cl 7A(1) require that for development to be exempt it must fall within Sch 10 and meet the general criteria set out in subclauses (2) and (3) (cl 17A(3) does not apply in this case). Only if it "passes" that "double hurdle" can it be exempt. The Council submits that cl 7A(1) referred to Sch 10 as the relevant exempt development and cl 7A(2) qualifies cl 7A(1). Accordingly the Council can determine that exempt development under cl 7A(1) could lose its exempt status if it fails to comply with cl 7A(2).

33. The Applicants urged an alternative construction of the LEP which is that development which satisfies subclauses (2) and (3) is not also required to fall within Sch 10. I do not think this construction of cl 7A is open given the wording in cl 7A(1) "Development listed in Schedule 10 is exempt development, except as provided for by subclauses (2) and (3)" which I consider means that subclauses (2) and (3) can relate only to items in Sch 10. Further I accept the Council's view of the construction of cl 7A so that in this case the satellite dish which exceeds the maximum diameter of 1.5 metres cannot be exempt development as it does not fall within the requirements of Sch 10.

Summary of findings 34. The answers to the three questions of law in issue are as follows:

1. The Notice of Proposal to Issue an Order dated 6 August 2001 is valid.
2. The Order dated 7 September 2001 is invalid.
3. The development which is the subject of the Order is not exempt development under the Drummoyne Local Environment Plan 1986.

Order The Court orders that:

1. The Appeal be upheld.
2. The question of costs be reserved.
3. The exhibits be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.