Harris Farm Markets Pty Limited v Ashfield Fresh Pty Limited and Anor.

The first Respondent resists the relief claimed on substantive and discretionary grounds (the latter being based upon s 25B of the Land and Environment Court Act 1979).

Section 78A(1) of the EP&A Act, is in the following terms: A person may, subject to the regulations, apply to a consent authority for consent to carry out development.

Clause 49(1) and cl 50(1) of the Regulation are in the following terms: Cl 49(1) A development application may be made: (a by the owner of the land to which the development application relates; or (b) by any other person, with the consent in writing of the owner of that land. Cl 50(1) A development application: (a) must contain the information and be accompanied by the documents, specified in Part 1 of Schedule 1.

Part 1 of Schedule 1 includes the following relevant provisions: 1. development application must contain the following information: ……………. …………….

(c) if the applicant is not the owner of the land a statement signed by the owner of the land to the effect that the owner consents to the making of the application.

The affidavit evidence filed in the proceedings establishes the following primary facts: -

(i) On 6 September 2001 the second Respondent received a development application in the name of the first Respondent for use of the subject premises as a fruit shop.

(ii) The development application contained a written endorsement of the "owner's consent": That endorsement indicated that the owner of the subject premises was "Ashmall Development Limited" and the relevant endorsement was signed by a "David Ellis" and dated "04/09/01". Mr Ellis is not a Director of Ashmall Development Limited and its Company Seal was not affixed to the endorsement of owner's consent.

(iii) At all material times Ashmall Development Limited was the owner of the subject premises.

(iv) At all material times included among the Directors of Ashmall Development Limited were Ian Fox and David James Bastian.

(v) The ultimate holding company of Ashmall Development Limited is Abacus Funds Management Limited.

(vi) At the time (namely 4 September 2001) that David Ellis signed the endorsement of the owner's consent on the development application be held written authorisation from Abacus Funds Management Limited to sign under "Owner's consent" any development application and construction certificates relating to tenancy matters at the Ashfield Mall Shopping Centre. (vii) After the development application had been lodged with the Council but before the Council had granted the development consent, Mr David Ellis additionally held the written authorisation from Ashmall Development Limited to sign under "Owner's consent" any development application and construction certificates relating to tenancy matters at premises known as 244, 252, 254 and 256 Liverpool Road Ashfield. (No 254 is the subject premises).

In the light of the foregoing facts, has the Applicant established that the development consent was void for want of the consent of the owner as required by the EP&A Act, s 78A and cl 49 and 50 of the Regulation to the development application which was granted that development consent?

In my judgment, the primary facts support an ultimate finding, which I make, that the required owner's consent had been given to the development application before the Council granted the development consent on 16 October 2001. The decision of the Court of Appeal in Botany Bay Council v Remath Investments No 6 Pty Ltd (2000) 111 LGERA 446 recognises the unchallenged correctness of a line of authority in this Court throughout the 1980s and 1990s to the effect that the requirement for owner's consent to a development application can be satisfied at any time before the determination of the application: see at pp 451/452 per Stein JA.

Here, the owner's consent was relevantly given by virtue of the authorisation given to Mr David Ellis "to sign the owner's consent for development applications….relating to tenancy matters at………254……..Liverpool Road Ashfield" (vide primary fact (vii) above.)

Although that authorisation was given on 10 September 2001, a few days after the development application had been lodged with the Council bearing the endorsement of the owner's consent signed by Mr David Ellis, that authorisation was effective from that date and hence was in existence before the Council granted the development consent and was additionally effective to ratify the earlier action taken by Mr Ellis in endorsing the owner's consent on the development application.

As the authorised agent of the owner, Mr Ellis had the legal capacity to sign the endorsement of the owner's consent in his own name and there was no need for the owner's seal to be affixed: cf Donnelly v Delta Gold Pty ltd (2001) 113 LGERA 34 at 92. Despite the fact that the development application was made in a form that contained the following notation: All owners must sign consent. If signed on behalf of an owner's corporation or company, the COMMON SEAL must be stamped on this section (or attached hereto)

that notation did not exclude the possibility of a corporation owner endorsing its consent via an authorised agent signing in his own name, in which event the signature of the agent was legally effective: see McRae v Coulton (1986) 7 NSWLR 644 at 663 where Hope JA, in giving the judgment of the Court of Appeal stated: The first question is whether the applicants must sign personally, or whether signature by an agent on behalf of the applicants was permissible. It has long been the law that, where a provision of a statute or of delegated legislation requires that a document shall be signed by a particular person, prima facie that provision does not exclude the common law rule qui facit per alium facit per se and if the person authorises another to sign on his behalf, a signature made by the other pursuant to the authority is equivalent to the signature of the person giving the authority R v Kent Justices (1873) LR 8 QB 305; Re Whitley Partners Ltd (1886) LR 32 Ch D 337; France v Dutton [1891] 2 QB 208; Furnivall v Hudson [1893] 1 Ch 335; Dennison v Jeffs [1896] 1 Ch 611; Grahame v Commissioner for Railways (1946) 46 SR (NSW) 430; 63 WN 277.

Accordingly, for the foregoing reasons, I hold that the Applicant has not substantiated its allegation of the invalidity of the development consent.

This conclusion means that it is not necessary for me to consider the alternative defence relied upon by the first Respondent, namely the relief available pursuant to the Land and Environment Court Act 1979, s 25B. C. THE ALLEGED BREACHES OF CONDITIONS OF THE DEVELOPMENT CONSENT

According to the Applicant's Points of Claim, Conditions 1, 2, 3, 4, 7, 8, 10, 17 and 21 of the development consent are alleged to be breached. Those conditions are in the following terms: Approved Drawings 1. The proposed development/use to be carried out in accordance with the plans numbered 2001/A/040 and date stamped by Council 14 August 2001 submitted with the Development Application, except where amended by the conditions hereunder. Shopfront 2. Prior to commencement of use of the premises, plans showing and detailing the following shall be submitted for the approval of Ashfield Council's Town Planning Department: (i) The shopfront roll-a-door in front of the proposed display area adjacent the entry point shall be replaced with a fixed glass one, so that the façade is not openable to Liverpool Road. This is in order to prevent people standing outside the shop, and causing an obstruction to pedestrian flows adjacent to a busy footpath. (ii) The installation of bollard type devices within the shop are to be provided adjacent the entry point area so as to prevent any of the shop's customer trolleys being taken out of the shop onto Liverpool Road footpath. (iii) The waste collection area is to be physically partitioned off in a way which creates a separate room and contains any odours within the premises except where disposed of through an exhaust duct. Waste 3. All waste shall be stored within the building until such time as it is disposed from the site to external waste collection facility.

Waste storage shall occur as stated on the Waste Management Plan submitted with the application dated 10 October 2001.

Rear External Loading Bay 4. This external loading bay area shall at all times be kept clear for vehicular loading and unloading of goods and waste, and kept clean and free from litter, and not be used as a storage area. Use 7. The use is to be conducted at all times without interference to the amenity of the immediate area in terms of noise or odours. 8. The shop's trolleys shall not be taken outside the shop at any time. 10. All goods for sale from the premises shall be delivered directly to the site and be stored within the building, and not stored on premises on adjacent allotments. Health 17. Garbage and recycling bins together with pallets and goods are not to be stored either on the rear ROW driveway leading to the rear roller door or on the adjacent Council property. 21. All pallets, goods, fruit, vegetables and forklifts are to be stored within the building.

After the evidence was concluded concerning these allegations of breaches of conditions of the development consent, the Applicant properly conceded in his final address that the alleged braches of Conditions 1 and 7 were not supported by the evidence. Accordingly, there is no need to further consider those conditions.

Although the first Respondent, in its Points of Defence had denied each of the alleged breaches, at the conclusion of the evidence Counsel for the first Respondent conceded that the evidence established a breach of Condition 2(i) but submitted that the breach was technical and trivial. In respect of other allegations of breach of conditions, the first Respondent submitted that they had not been established by the Applicant's evidence which was confined to photographs taken by Mr Michael Waight, the Project Manager of the Applicant, on three occasions that he visited the subject premises and their environs - 24 and 25 October 2001 and 5 November 2001. If, despite the submission the Court were to find the breaches (or any of them) established, they did not demonstrate "continuing breaches" and were in any event trivial.

According to the Points of Claim, the particulars of the alleged breaches are as follows:

(i) Condition 2 : The fixed glass panel at the shopfront has not been installed.

(ii) Conditions 3, 10 and 17: Waste bins are being stored outside the building in the rear access area and outside the premises. (iii) Condition 4: The rear area outside the premises is not free of litter and is being used as a goods storage area. (iv) Condition 8: " Ashfield Fresh " labelled trolleys are being taken out of the shop and left on the public footpath, both in Liverpool Road and within the pedestrian mall areas to Ashfield Mall. (v) Condition 21: Pallets, goods, fruit, vegetables and forklifts are being stored and used outside the building.

As I have earlier noted, the only evidence tendered by the Applicant to establish these alleged breaches are the photographs annexed to the affidavit of Mr Michael Waight sworn 22 November 2001. Sixteen photographs are annexed to the affidavit and the only explanation of the photographs that is contained in Mr Waight's affidavit is (i) when the photographs were taken and (ii) from what position they were taken. In respect of three photographs, the additional information is provided of what the camera operator was "looking towards".

The evidence adduced by the first Respondent is the affidavit of Bruce Threlfo, a Consultant Town Planner dated 21 January 2002 and the affidavit of Guiseppe Circelli a Director of the first Respondent dated 2 May 2002.

Mr Threlfo inspected the subject premises on two occasions - 15 and 19 January 2002. Based upon his observations on these occasions (which included taking photographs) Mr Threlfo expresses the following opinion upon the nature and consequences of the breaches of the conditions of development consent that his observations had revealed: As a result of my experience as a Town Planner and Manager employed in local government, I consider that the non-compliances with the conditions of Consent No 304/2001 are relatively minor. In my opinion, the business is conducted in a clean and tidy manner and the minor non-compliances with the Conditions of Consent would not justify an order for the business to cease operation. I note that the premises are located immediately adjacent to the Council administrative offices, and, therefore, assume that the day-to-day operations of the business are readily observable by Council's town planning staff.

Mr Threlfo's affidavit deposes to the fact that on 21 January 2002 he had lodged on behalf of the first Respondent a modification application with Ashfield Municipal Council seeking modification of conditions 2, 3, 4, 8, 17 and 21 of the development consent pursuant to the EP&A Act, s 96(2). His affidavit annexes a copy of the modification application (Annexure "H").

It is apparent from the terms of the modification application and the content of Mr Threlfo's affidavit (pars 11 to 17 inclusive) that the modification application seeks to modify the consent in a manner that would ensure that the consent as modified, authorises the conduct of the business in relation to the relevant conditions of the development consent, in the manner that Mr Threlfo observed when inspecting the subject premises on the two occasions in January 2002.

I accept Mr Threlfo's evidence, which was not seriously challenged under cross-examination, as demonstrating the manner in which the first Respondent is conducting its business in relation to the conditions of the development consent.

Mr Threlfo's evidence is preferred to the Applicant's photographic evidence - not only because it is a more up to date appraisal of the manner in which the first Respondent is conducting its business (the Applicant's photographs were taken in October and early November 2001 just a few weeks after the development consent for the conduct of the business was granted by the Council) but because it is a more comprehensive and intelligible appraisal than that provided by the mere photographic evidence solely relied upon by the Applicant to establish its case.

Having regard to the totality of the evidence, I make the following findings in relation to the alleged breaches of conditions of the development consent: -

(i) Condition 2(i) It is admitted that this condition is breached and the breach continues. However, the breach has not been shown to be causing any public or private harm, including in particular obstruction to pedestrians on the footpath. The first Respondent has made an application to the Council to modify this condition and the Council's planner, reporting on the application, has recommended that the modification be granted. (A copy of the Council officer's report is annexed to the affidavit of Jane Hewitt dated 7 May 2002.)

(ii) Condition 3 This condition has not been shown to be relevantly breached.

(iii) Condition 4 and 10 These conditions have not been shown to be relevantly breached.

(iv) Condition 8 This condition is breached whenever a trolley is taken from the shop but the frequency or incidence of this activity has not been established. There is no proven public or private harm caused by the breach. The first Respondent's modification application seeks to modify this condition by substituting the following condition: The applicant shall engage a trolley collection contractor to collect and return trolleys on a continual basis on all working days. The return of trolleys to the premises shall take place through the rear loading dock.

The first Respondent engages a contractor to collect the trolleys taken from the shop, which reflects the existing practice of other larger retail outlets operating in the Ashfield Mall including the Applicant's shop. The Council's planner has recommended that the modification be granted.

(v) Conditions 17 and 21 These conditions are breached to the extent that pallets and empty milk crates have been temporarily stored in the areas designated, pending their daily removal from the premises. It has not been established that this phenomenon causes any public or private harm. In particular, the things so temporarily stored "are clean and can be tidily stored and do not interfere with unloading activities" (par 13 of Mr Threlfo's affidavit). The first Respondent's modification application seeks modification of these conditions to authorise the existing activity. The Council's planner has recommended that the modifications be granted, as sought.

It follows that the Applicant's allegations of breaches of the conditions of the development consent have only been established in part, and more particularly, to the limited extent that I have recorded.

It is to be noted that the first Respondent's modification application, if granted by the Council, would be entirely sufficient to authorise those aspects of the first Respondent's conduct of its business at the subject premises which involve contravention of relevant conditions, but only to the extent I have found. According to Ms Hewitt's affidavit, it was expected that the first Respondent's modification application would be submitted to the Council for consideration at its meeting on 19 May 2002. At the present time, the Court does not know whether the Council has determined the modification application.

As I have earlier noted, the written report of the Council's planner on the first Respondent's modification application recommends that the modifications be granted, as sought. Included in that written report is an appraisal of the single submission received by the Council in response to its public notification of the modification application. That submission was made by the Applicant in these proceedings. It objected to the modification of any of the conditions and sought the retention of the original conditions imposed on the grant of the development consent. The appraisal of the submission was that it had not substantiated any of the objections raised against the modification application.

In the light of my findings concerning the nature and extent of the established breaches of some of the conditions of the development consent, the remaining question is whether the Court in the exercise of the wide judicial discretion conferred upon it by the EP&A Act, s 124 should grant or withhold any remedy of those breaches. D. THE EXERCISE OF DISCRETION IN THE PRESENT CASE

It is common ground that the Court is vested with wide discretionary power by the EP&A Act, s 124: see Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335.

The relief claimed by the Applicant is that an injunction be granted restraining the use of the subject premises otherwise than in accordance with the conditions of the development consent.

For the following reasons, I have concluded in the exercise of judicial discretion to withhold the grant of the injunctive relief claimed by the Applicant to remedy the established breaches -

(i) The proven breaches of the conditions are relatively minor breaches involving no public or private harmful consequences whatsoever (save for the proverbial fact that there is an obvious public interest in the enforcement of the planning law, including compliance with conditions of development consent;

(ii) The Council as the relevant local planning authority has not sought to enforce any breach of the conditions of the development consent. Indeed, as a party to the proceedings, it has filed a submitting appearance.

(iii) The Applicant, although entitled to bring the present proceedings pursuant to the EP&A Act, s 123, is a trade competitor operating within the same locality as the subject premises.

(iv) The minor breaches of some conditions of the development consent are the subject of the pending modification application which if granted by the Council, according to the recommendation of its town planner, will fully authorise the particular aspects of the first Respondent's conduct of its business which presently constitute the breaches of relevant conditions of the development consent.

(v) If the injunction claimed by the Applicant were granted, the first Respondent would suffer significant financial and business losses including the obligation to pay rent at the rate of $16,000 per month for the subject premises. Additionally, 10 employees would lose their jobs.

For the foregoing reasons, the claimed remedy of injunction for the proven breaches of the conditions of the development consent would, in my judgment, be overwhelmingly disproportionate to the insignificant nature and extent of those breaches, which are entirely curable if the first Respondent's pending modification application were granted by the Council. No other remedy has been claimed or, in my opinion, is appropriate. E. ORDERS

For all of the foregoing reasons, I make the following orders:

1. Application dismissed.
2. The Applicant shall pay the first Respondent's costs in the sum agreed, or failing agreement, as assessed.
3. 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.