Question 1 - was development consent necessary for the "structure"?
115 I have earlier set out the main statutory provisions that bear on the issue. I think it may be safely said that a broad construction of the concept of "development" is warranted, having regard to the statutory definitions the object and purpose of the Act and the considerations which are appropriately to be taken into account under s 79C of the Act. The defendant has argued that, taken together, the steel star pickets, (fixed to the ground as they were) and to which were attached barbed wire in multiple strands, including coils of barbed wire, with the wire extending the full length of the steel picket fence, justified the view that the composite creation may be described as "a building" within the inclusive definition contained in s 4(1) of the Act. The height of the structure was approximately one metre and, in general terms, the structure, it will be recalled, extended for approximately 17 metres down towards Trelawney Street.
116 It was further submitted that the steps taken in the compilation of the structure were properly defined as "development", being the erection of a structure, particularly having regard to the references contained in s 4(2) of the Act.
117 Mr Gray, on the other hand, has argued that the defendant has sought to "pull itself up by its own boot straps" in its arguments. This criticism relates to the reference by the council to the provisions of the subordinate legislation represented by the Woollahra Local Environmental Plan; the Woollahra Residential EDP; the Development Control Plan for Exempt and Complying Development and the Fencing Code. Mr Gray submits that one needs to go back to the definitions in the Act itself to determine whether the "erection" or "construction" of any particular "structure" may be properly regarded as a matter requiring development consent. Secondly, and most importantly Mr Gray relies heavily on the decision of the New South Wales Court of Appeal in Mulcahy v Blue Mountains City Council. Indeed, it is fair to say that throughout the whole history of this extended litigation, Mr & Mrs Gray have, in essence, postulated their case on the basis of their understanding of the Mulcahy decision. It will be appropriate now to turn to the facts and outcome of that decision.
118 Mrs Mulcahy owned land near Mt Victoria. She had owned the land since about 1985. She had used it for the exercise of horses and generally for residential purposes. She had premises "in or near the land". In 1972, by mistake, a sealed road had, without any right, been constructed through the land. The Crown grant reserved an area for a road but the road was not constructed on it. The land on which the sealed road had been constructed was, in fact, Mrs Mulcahy's property. At the time when the matter came before the Court of Appeal, there was an extant application by the council for the compulsory acquisition of the land for the purpose of legitimising the use of the road as a public road. The application had, however, not been determined by the time the matter came to court.
119 In 1991 Mrs Mulcahy decided to put gates across the road at two places, one where the road entered her land and the other where it came to the land reserved for a road by the Crown grant. She wished to restrict or prevent people trespassing on her land by using the sealed road. Areas near the sealed road were very scenic and had, prior to the erection of the gates, been used by the public relatively frequently. In 1992 the council applied to the Land and Environment Court for an injunction restraining Mrs Mulcahy from maintaining the gates and so exercising her right to stop trespassers entering her land. It sought an order that the gates be removed on the ground that there were "buildings" for which consent was required and that such consent had not been obtained. The Land and Environment Court, on the basis that the gates were "buildings", granted the injunction. Mrs Mulcahy appealed to the Court of Appeal against the Court's orders. In the Court of Appeal, the first issue, namely whether the gates were "buildings", was not pressed. As a consequence the only matter which was argued before the Court of Appeal was the issue relating to the proper exercise of the Land and Environment Court's discretion to order the removal of the gates.
120 In the ultimate, the Court determined this issue on a relatively narrow ground. Mahoney JA gave the principal decision of the Court. It was clearly a significant background to his Honour's ultimate conclusion that he formed the view that the council had used the present injunction proceedings for what was legally a collateral or illegitimate purpose. Indeed, he said so. This purpose, his Honour said, was to subvert Ms Mulcahy's successful attempts to prevent people driving along the constructed road to enjoy the scenic views. Of course, from Ms Mulcahy's purpose she was doing no more than seeking to stop trespassers on her land.
121 Mahoney JA gave two reasons for his conclusion that the Land and Environment Court had erred in its discretion in granting the orders sought by the Council. For the purposes of the appeal, his Honour assumed that what Ms Mulcahy did in putting up the gates involved, in fact, the erection of a building without the required consent. The first reason advanced by his Honour for allowing the appeal was that the Land and Environment Court had not taken into account whether the destruction of the gates was required in order to achieve the purposes of the legislation or, indeed, had any bearing upon it. In this regard, his Honour said:-
"But the erection of a gate in the midst of a forest area distant from any habitation hardly, if at all, affects the main objective of the legislation. And, however that be, the destruction of the gates in order to allow public access to the present road would not be within such objectives."
122 The second reason advanced by his Honour was that the learned judge had not properly taken into account the fact that the road was land owned by Ms Mulcahy and the purpose or effect of the destruction of the gates would be to allow and encourage trespass on her land. Mahoney JA said at the foot of page 309:-
"In this case what the judge did had the effect and, with respect, it was the purpose of the application and the order, that the road should be open for traffic by trespassers. This was a matter of particular importance in the exercise of the discretion."
123 At page 310 Clark JA agreed with the orders proposed by Mahoney JA but only for the second of the two reasons given by his Honour. Meagher JA agreed with both the reasons and the orders proposed. His Honour, in his usual robust manner, had this to say: -
"Justice Pearlman … said in outlining her reasons for exercising her discretion to grant an injunction against the appellants that, if no injunction were granted, it would have a 'detrimental effect' on the public, who would be 'hindered' in their right to use the road. This must constitute a mistake of law, and one of no mean order. The public are trespassers and have no right at all to use the road, as Mahoney JA has pointed out."
124 In the course of his judgment, Mahoney JA gave considerable consideration to the generality of the definitions in the Local Government Act 1919 and the Environmental Planning and Assessment Act 1979, s 4. The matter at issue in the proceedings before Pearlman J had been concerned with the need for development and building consent under the relevant legislation. Since the first ground of appeal had been abandoned, and because of the assumption that Mahoney JA made for the purposes of reaching the final conclusion he did, his observations are in fact obiter. They demand however, considerable respect and attention. The thrust of his Honour's examination of the generality, breadth and width of the definitions of "building" for the purposes of the legislation involved in the appeal was his view that "a purposive construction" should be adopted (Kingston v Keprose Pty Limited (1987) 11 NSWLR 404). His Honour continued his analysis at pages 307-308 in the following terms: -
"In principal, the purposive approach to construction of, for example, 'structure' or 'erect' would proceed in a manner such as the following. The Court would determine the purposes which the legislative sought to achieve by prescribing that no structure may be erected without council approval. I shall assume, by way of over simplification, that that purpose was the safety and stability of the structure. The Court would then adopt from among the possible meanings of 'structure' and 'erect' that meaning which would give effect to that purpose. It would not give to the terms a meaning which had no relevance to the achievement of that purpose."
125 Mahoney JA then went on to develop his analysis by reference to a number of examples. He drew the distinction between, for example, a metal sculpture set up in a garden, on the one hand; and the same structure if set up inside the house, on the other. His Honour, as I have said earlier, made the assumption that the gates in the present case were structures within the concept of erecting a structure in terms of the Local Government Act s 305. His Honour however, then went on to consider whether the presence of such gates in a bush setting had anything or much to do with the achievement of the purposes of the relevant part of the Local Government Act. It was in that context that his Honour then went on to the two main considerations that led to his conclusion that injunctive relief should have been refused.
126 I have set out the reasoning in Mulcahy in some detail. I have done so in deference to the extensive arguments advanced by Mr Gray on the plaintiff's behalf; and also in deference to the fact that Mulcahy's case has been the cornerstone of the arguments advanced by the plaintiff throughout the course of the dispute with her neighbours and Woollahra Council.
127 But, in my view, the plaintiff has endeavoured to make too much out of Mulcahy's case. It needs to be stated that there was a significant feature in Mulcahy's case which is absent from the present. This is the feature referred to by Mahoney JA namely, the fact that the council, in that case, brought the proceedings for a collateral or illegitimate purpose. I do not draw that inference from the council's actions in the present case. Rather, I consider that the council was concerned with appropriate environmental considerations. Secondly, the assumption that Mahoney JA made related to the need for approval under s 305 of the Local Government Act. The purpose of the approval was bound up with "the safety and stability of the structure". In the present matter, the council, in my view, rightly were bound to consider a broader range of matters. First, it seems clear that a literal reading of the environmental planning instrument required, for two reasons, that development consent might be required. These two reasons were of course only triggered if the "structure" fell within the definition of "development" in s 4(1) as extended by s 4(2). Literally, those sections applied. But in determining whether the purposes of the legislation required that those definitions be applied in literal terms to the "structure" it would have been appropriate for the council, as indeed it is for me, to have regard to the objects of the Act in s 5. These include "the proper management development and conservation of cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment". These are very broad considerations indeed.
128 It seems to me that the purposes of the legislation would be appropriately served by the view which the council undoubtedly took, namely that this was a structure which because of its size, location and component parts, required development consent. Moreover, it was not an irrelevant consideration, once it was appreciated that development consent was required, that the considerations enshrined in s 79C inevitably posed a powerful argument that development consent, had it been sought, was most likely to have been refused. The various matters in the subordinate legislation to which I have referred, admittedly, could not carry the argument forward as to whether development consent was required. They however, pointed strongly in the direction, that if development consent were required, it should be refused.
129 This brings me to the third point of distinction. Mulcahy's case differs from the present case in that there the order for demolition of the gates would allow and encourage trespassers upon Mrs Mulcahy's land. That situation did not exist in the case of the demolition of the structure on Mrs Gray's land.
130 I have considerable sympathy for the position in which Mr & Mrs Gray found themselves. It must have been extremely frustrating and harassing that the dispute with their neighbours had developed into the spiteful and petty situation that I have described at the outset of these reasons. Nevertheless, in environmental terms, their response was a strikingly provocative one. I do not think that the situation in Mulcahy is a true analogy with the present case. There, the public at large were, with the connivance of the local council, actively using a sealed road illegitimately placed upon Mrs Mulcahy's land, to trespass upon her property. That, to my mind, is a significantly different situation than the situation in the dispute between the Grays and the Furbers. The distinction argued by Mr Maston on behalf of the council is, I consider, a reasonably valid one. The position in Trelawney Street Woollahra was that of a closely settled urban area. The construction of a 17 metre barbed wire "fence", a metre or so from the boundary, was aesthetically obnoxious, likely to be dangerous and environmentally unsound. In making these judgments, I am merely reflecting a number of the considerations in the subordinate legislation which the council was bound to take into account on the issue as to whether consent would be likely to be refused.
131 It is far too broad a principle to state, as did Mr Gray in argument, that a person is entitled to build or erect any structure within the confines of his or her own land to keep out trespassers or unwanted persons. There may be very sound environmental reasons why a development consent would be required. It is possible to contemplate walls, fences, barriers, moats and many like structures where, depending on the circumstances, the purposes and objects of the Act would be enlivened so as to require consent.
132 In my view, the defendant council was, as a matter of law, entitled to take the view that the creation of the composite "structure" represented by the material I have described fell within the definition of "development" in s 4(1) of the EPA Act. It involved the erection of a structure and the carrying out of a work. As such, it brought into play that part of the relevant environmental planning instrument that specified development might not be carried out except with development consent. Consequently the council had the entitlement to make an order under s 121B in terms of Column 2 of the Table. In determining whether to make such an order, the council was entitled to have regard to those matters it might have regard to if it were determining a development application. By this I mean the matters of evaluation contained in s 79C. All those matters, in my view, were relevant considerations to be taken into account when determining whether to make an order and in determining the terms of any such order. They would properly include, in my opinion, matters such as the Fencing Code, even though strictly speaking the "structure" was not a dividing fence. Considerations such as those in the subordinate legislation, including performance standards, and the matters in s 79(1)(b), (c) and (e) support the relevance of such considerations.
133 The final matter which I wish to mention in relation to this ground of contention is the reference in the council order to "danger to the public". In view of the conclusion I have reached in relation to the question as to whether development consent was required, it does not seem to me that any useful purpose would be served in resolving this additional matter. The "circumstances" in which an order may be made to demolish or remove a building include the additional consideration - "building is or is likely to become a danger to the public". There are two further "circumstances" contained in the relevant section of the Table but I need not set these out. While it is true that the council document referred, in effect, to a hybrid version of the second of the "circumstances" that would warrant an order for demolishment of a building, it principally relied on the first "circumstance". Assuming for the sake of the argument that Mr Gray is perfectly right in his submission that council would not have been entitled to issue an order on this ground alone, if they had in fact purported to do so, but it is not necessary for me to decide this point. This is because, even if the council had in fact purported to do so, and even if were it correct that the council misconstrued the relevant part of the Table, this would not invalidate the order that was made or render it liable to be set aside. In turn, this is because the council was, according to the conclusions I have reached, correct in determining that development consent was required for the structure. But, in any event, the statement criticised by Mr Gray forms part of the "reasons" for the order. It does not purport to be, and indeed differs in its terminology from the "circumstance" mentioned in Column 2(b) of the s 121B Table - I shall have something further to say on the issue of "reasons" in the next section of this decision. But I am not satisfied that the impugned sentence in the order represents an error of law so as to render the notice invalid.