Jambrecina v Blacktown City Council

THE PRIMARY JUDGMENT 14 The primary Judge pointed out that in order to establish a breach of the EPA Act, the Council needed to establish three matters: "(a) that the placing of the sheds on the land involves the carrying out of development within the meaning of the Act; (b) the carrying out of such development requires development consent under the Act; and (c) development consent for such development has not been obtained and the development is not being carried out in accordance with any such development consent." 15 On the first issue, his Honour noted that the expression "development" was defined in s 4(1) of the EPA Act to include "the erection of a building". The term "building" was defined to include "part of a building and … any structure". In his Honour's view, the sheds were "structures" and thus came within the definition of "building" unless one of the exceptions to the definition applied. His Honour considered that none of the exceptions, namely "manufactured home", "moveable dwelling" or "associated structure", applied to the sheds. Since "the erection of a building" was defined to include "the placing or relocating of a building on land", it followed that the placing of the sheds on the Property involved the carrying out of "development" within the meaning of the EPA Act. 16 His Honour next considered the terms of the Blacktown Local Environmental Plan 1988 ("LEP"), in its application to land zoned Residential 2A (as was the Property). His Honour concluded that the erection of the sheds was a development that could be carried out only with consent. The erection of the sheds could have been a "complying development" if the relevant criteria were satisfied. However, a complying development required a complying development certificate and none had been issued either to the appellant or to Lacan. It followed that the LEP required development consent to be obtained for the sheds to be lawfully erected on the Property. 17 Since no development consent had been obtained, the development had been carried out without consent contrary to s 76A(1) of the EPA Act. In his Honour's view, both Lacan and the appellant could be considered to have carried out the development: "being the erection of the buildings that are the sheds and their subsequent use".

It followed that both Lacan and the appellant were in breach of s 76A(1) of the EPA Act . 18 The primary Judge made a declaration in the terms sought by the Council as follows: "[T]he existing development on the [Property] … comprising 4 sheds each approximately 4m long x 3m wide is a breach of the [ EPA Act ]." 19 In addition, his Honour ordered that each of Lacan and the appellant remove the sheds from the Property or demolish or dismantle the sheds and remove the components (the "Demolition Order"). However, his Honour stayed the Demolition Order for a period of six weeks to enable Lacan or the appellant to lodge an application for development consent with the Council. If such an application was lodged, the stay was to remain in force until the determination of the application or of any appeal against the determination. His Honour further ordered that: "If development consent is granted to any one or more of the sheds, the stay in respect of that shed or those sheds be continued until further order of the Court; and that any party be at liberty to apply to have the matter relisted before the Court on 5 days' notice to the others." 20 The primary Judge ordered each of Lacan and the appellant to pay one half of the Council's costs, assessed at $3,000.

21 The appellant applied to the Council, within the period specified in the orders made by the L & E Court, for development consent to the use of six sheds on the Property for recreational purposes. The application sought consent for the use of the four sheds that had been the subject of the proceedings in the L & E Court. 22 The Council refused the development application and the appellant appealed to the L & E Court. On 22 December 2008, Senior Commissioner Roseth granted consent to the use of all six sheds, subject to conditions. The conditions included the relocation of the four sheds the subject of the L & E Court orders, so that they were situated no less than three metres from the eastern boundary and two metres from the northern boundary of the Property. 23 The appellant filed her notice of appeal from the May 2008 decision of the L & E Court on 5 August 2008, before the final outcome of the development application in respect of the six sheds was known. The notice of appeal included a ground that the primary Judge erred in determining that manufactured, mobile and moveable structures were "buildings" within the meaning of the EPA Act. Otherwise, the grounds attached to the notice of appeal are not easy to follow. 24 The appellant filed several sets of written submissions in support of her appeal, the most recent of which post-dated the Senior Commissioner's decision to grant development consent to the use of the sheds. In her written submissions, the appellant referred to a letter sent to her on 3 March 2009 by the solicitors for the Council. The letter was admitted into evidence on the appeal without objection from the Council. In the letter, the Council confirmed that: "1. … [it] does not regard the first declaration [made by the L & E Court] as operative, following the granting of the consent [by the Senior Commissioner].

2. … the breach of the Act having been remedied by the granting of the consent, the Council will not seek to enforce Order 2 for the removal of the relevant structures."

The letter went on to deal with the costs of the appeal but not in terms that are presently material. 25 The Council filed written submissions in response to those of the appellant. The submissions addressed the grounds identified by the appellant in her notice of appeal. The written submissions did not explain why the Council had maintained in the letter of 3 March 2009 that the declaration made by the L & E Court was no longer "operative". Nor did they contend in their written submissions that the appeal should be dismissed on the ground that it lacked utility. Nonetheless, in his oral submission, Mr Kelso, who appeared for the Council, argued that the appeal should be dismissed for want of utility.

UTILITY OF THE APPEAL 26 The Council relied on the established principle that this Court will not normally entertain appeals which lack utility, even if the appeal is brought as of right: Gardner v The Dairy Industry Authority of New South Wales (1978) 52 ALJR 180, at 188, per Mason J (with whom Jacobs J agreed); at 189, per Aickin J; Sun Life Assurance Co of Canada v Jervis [1944] AC 111, at 113, per Viscount Simon LC (with whom Lords Atkin, Thankerton, Russell and Porter agreed); Styles v Wollondilly Shire Council [2002] NSWCA 67; (2002) 120 LGERA 172, at 181 [57], per Stein JA (with whom Sheller and McClellan JJA agreed). An example of the application of this principle is Jarvis v Queanbeyan City Council [2002] NSWCA 20. In that case, the appellant, a Councillor of the respondent's former Council, had sought declarations as to the validity of resolutions purporting to expel her from Council meetings. The appellant failed in the L & E Court and appealed. In the meantime, the Council passed a resolution to the effect that it no longer sought to expel the appellant from its meetings. 27 Stein JA (with whom Heydon and Mathews AJA agreed) said (at [10]) that it was: "axiomatic that a court should not consider matters and grant declarations where the subject matter is spent and there is no longer any live dispute".

Stein JA endorsed the observation of Young J (as his Honour then was) in Hacienda Apartments Pty Ltd v Vago (Supreme Court of New South Wales, 19 May 1988, unreported) that where a dispute concerns purely private rights, it will be rare that a court will consider that a declaration has any utility. Stein JA accepted that the Court might entertain an appeal if a matter of public importance was involved, but found that the issues raised by the appellant were not of that character. Accordingly, the appeal was dismissed on the ground that it lacked utility. 28 The present case has some similarities to Jarvis. The appellant wishes to overturn the Demolition Order, but in the events which have occurred, the Demolition Order is stayed until further order of the Court. In its letter of 3 March 2009, the Council informed the appellant that it would not seek to enforce the Demolition Order. In any event, there could be no basis for the Council applying to the L & E Court to have the stay removed. In these circumstances, it is clear that the Demolition Order cannot be enforced and, to all intents and purposes, its effect is spent. 29 The present case differs from Jarvis, however, in that it was the Council, not the appellant, that initiated the proceedings in the L & E Court. The declaration made by the primary Judge, unless set aside, constitutes a determination, binding between the parties, that the appellant breached the EPA Act. It is true that the declaration has no continuing effect, in the sense that the appellant has now obtained development consent for the use of the sheds on the Property. Nonetheless, if her appeal were to be successful the declaration would be set aside and she would no longer be subject to a judicial determination that she had contravened the EPA Act. Such an outcome, although of no financial value to the appellant, cannot be said to lack any utility. 30 For these reasons, I do not think that the appeal should be dismissed on the ground that it lacks utility. It is not necessary to consider whether the costs order made against the appellant by the L & E Court is sufficient of itself to warrant the conclusion that the appeal has utility: cf State of South Australia v Lampard-Trevorrow [2008] SASC 320, at [25]-[27], per White J and authorities cited there.

THE SUBSTANCE OF THE APPEAL 31 The only ground that emerges clearly from the notice of appeal is that his Honour erred in concluding that "manufactured mobile and mov[e]able structures" are "buildings" within the meaning of s 4(1) of the EPA Act. In oral argument, the appellant submitted that the sheds on the Property were not "structures" and, in any event, were excluded from the definition of "building' in s 4(1) of the EPA Act. 32 There was surprisingly little evidence before the primary Judge as to the physical characteristics of the sheds in respect of which the Council sought orders. An officer of the Council, Mr McDonald, swore an affidavit stating simply that he had inspected the Property on 17 October 2007 and had observed four sheds, each measuring about 4m x 3m. He annexed two colour photographs to his affidavit, each showing what he described as three "Relocatable office sheds" at the rear of the Property and a fourth shed to the right of the photographs (looking towards the rear of the Property). The photographs appear to have been taken from outside the front boundary of the Property, perhaps suggesting that Mr McDonald was not able to gain ready access and thus was not able to measure the sheds himself. Mr McDonald was not cross-examined on his affidavit. 33 In the course of argument before his Honour, Mr Kelso stated that the four sheds in respect of which the Council sought orders were the four sheds shown in the photographs. The case was conducted on the basis that there was a fifth shed located behind the three sheds shown in the photographs at the rear of the Property. However, the fifth shed was said by the Council to be an "existing shed" and no order was sought in relation to it. 34 The appellant swore affidavits that were read at the trial, although Mr Kelso elected not to cross-examine her. In her affidavit of 21 April 2008, the appellant said that there were two 10m² sheds on the Property used as "garden shed and lock up", a third shed used as a 10m² greenhouse and a fourth shed used as a 5 m² playroom and change area. 35 Mr Jambrecina also swore an affidavit, upon which he was briefly cross-examined by Mr Kelso. He gave uncontested evidence that the four sheds in respect of which the Council sought orders had been moved by truck from Queanbeyan to the Property in late 2005 and had been located on the Property ever since. 36 Mr McDonald's affidavit of 31 October 2007 annexed the development application lodged by Lacan on 7 September 2006. It is not clear, either from the application (including the annexed plan) or the Council's notice of determination of the application, whether the proposal related to the sheds already on the Property or to new sheds to be erected in place of the existing sheds. The plan indicated, however, that: "all sheds sit on conc[rete] paving & 2 steel beams". 37 The primary Judge did not make any express findings as to whether the development application lodged by Lacan was intended to relate to the sheds already on the Property or to new sheds to be erected. His Honour observed in his judgment that Mr McDonald's evidence "accord[ed] with the specification given in the plans that were lodged with the development application". This passage perhaps suggests that his Honour thought that the development application sought approval for three of the sheds that had been erected on the Property since late 2005. 38 The appellant asserted from the Bar table during argument on the appeal that the development application lodged by Lacan was not intended to refer to the sheds already located on the Property and that none of these sheds in fact had concrete paving or steel beams. There was no evidence before the primary Judge to support that assertion. If it matters (and I do not think it does), it was open to his Honour to infer, on the material before him, that the September 2006 development application related to three of the sheds already erected on the Property. After all, the development application was intended to regularise a position that had been the source of disagreement between the Council and the appellant. Moreover, neither the appellant nor Mr Jambrecina suggested in their evidence that they intended to remove the sheds already located on the Property or to replace them with other sheds. 39 I do not think it matters whether the primary Judge thought that the development application related to the three existing sheds, because he placed no reliance on anything appearing on the plan to support his conclusion that the sheds were "structures". In particular, he did not find that the sheds erected on the Property had concrete flooring or were supported by steel beams. His Honour based his conclusion that the sheds were "structures" on the photographs and the evidence as to the placement of the sheds on the Property and their subsequent use. 40 In his judgment, the primary Judge referred (at [41]) to the decision of Cowdroy J in Wyong Shire Council v Cullen [2004] NSWLEC 171; (2004) 133 LGERA 355, in which his Honour followed the approach of Mahoney JA in Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302, at 305-308. In Mulcahy, Mahoney JA pointed out that the definitions in s 4(1) of the EPA Act, if read literally, could lead to extraordinary results that are not likely to have been intended by Parliament. His Honour said that a literal approach was to be avoided and that it was better (at 306): "to determine what things or actions come within [the statutory language] by reference to the purposes which the provisions were enacted to achieve".

His Honour explained that a purposive approach to the construction of terms such as " structure " or " erect " would require the Court to: "determine the purposes which the legislature sought to achieve by prescribing that no structure may be erected without council approval … 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." 41 One purpose of the EPA Act and of the LEP is to prevent the erection of three-dimensional objects on land that can interfere with the amenity of neighbouring lots. Thus the objects of the EPA Act include the proper management and development of natural and artificial resources for the purpose of promoting the social welfare of the community and a better environment (s 5). More specifically, the LEP provides (Part 2, cl 9(1)) that the objectives of Residential 2A zoning include: "(e) to allow people to carry out a reasonable range of activities from their homes, where such activities are not likely to adversely affect the living environment of neighbours." 42 In an individual case, the interference with the amenity of neighbouring lots might occur, for example, because of the bulk, unsightliness or proposed use of the objects to be erected or used. The evidence before the primary Judge showed that each of the four sheds:

o was of a sufficient size, bulk and appearance to potentially have an adverse effect on the amenity of neighbouring lots;

o had been located on the Property for a period of some two and a half years prior to the hearing;

o although apparently prefabricated, was sufficiently affixed to the land, by whatever means, to be capable of remaining there for an indefinite period; and

o was used by the appellant in connection with her occupation of the dwelling on the Property. 43 In view of this evidence, the primary Judge was correct to conclude that each of the four sheds was a "structure" for the purposes of the definition of "building" in s 4(1) of the EPA Act. The sheds individually and collectively were potentially capable of adversely affecting the amenity of neighbouring lots. Each shed was therefore a "building" unless one of the exceptions stated in paragraph (a) of the definition applied. 44 The relevant exceptions in paragraph (a) are "a manufactured home, a moveable dwelling or associated structure". The evidence did not support a finding that any of the sheds were a "portable device … used for human habitation" and thus did not support a conclusion that any of the sheds was a "moveable dwelling". There was no suggestion that either the appellant or her son lived in the sheds or, indeed, that the sheds were capable of being used as a place of abode or dwelling. In any event, while the sheds were apparently prefabricated and presumably capable of being dismantled and reassembled, they were not "portable" in the same sense as tents, caravans and vans, which are specifically designed to be readily and frequently moved from place to place. 45 None of the sheds was a self-contained dwelling and therefore was not a "manufactured home", as defined in the Local Government Act. Nor were any of the sheds an "associated structure", since they were not designed to enhance the amenity of a moveable dwelling. 46 It follows that the primary Judge correctly concluded that none of the exceptions specified in paragraph (a) of the definition of "building" applied in this case and that the placement of the sheds on the Property constituted the "erection of a building" within the meaning of the EPA Act. 47 The appellant placed some emphasis in her oral submissions upon the "Exemptions Policy" set out in the Council's "Local Approval Policy 2005". The "Exempt Activity Table" included an exemption for "Install[ation of] a temporary structure on land". The Table stated that a "temporary structure" included a "mobile structure". The appellant submitted that the sheds were "temporary structure[s]" and, in support of that submission, she pointed out that her occupation of the Property was merely as a tenant at will of Lacan. This submission, however, was based on a misconception. The Exempt Activity Table creates exemptions only from the prohibition imposed by s 68 of the Local Government Act on conducting certain activities without council consent. An exemption from the requirement for approval under s 68 of the Local Government Act does not, of itself, confer any exemption from the requirements imposed by or under the EPA Act. 48 The appellant did not challenge in her notice of appeal, or in her submissions, the primary Judge's finding that the sheds did not constitute a "complying development" for the purposes of the LEP. Accordingly, development consent was required for the erection and use of the sheds on the Property. No such consent had been obtained at the time the Council instituted proceedings in the L & E Court. Since the appellant did not challenge the finding that she had carried out the development, she was correctly held to have been in breach of s 76A(1) of the EPA Act.

CONCLUSION 49 For the reasons I have given, the appeal must be dismissed. 50 The appellant contended that she should not be ordered to pay the costs of the appeal because the Council had made a mistake in refusing development consent for the sheds. However, the issue in the appeal was not whether the Council should have granted the development application made by the appellant after the L & E Court had handed down judgment. The issue was whether the primary Judge erred in concluding that the appellant had breached the EPA Act by erecting the sheds on the Property without prior development consent. The appellant has not established any error by the primary Judge in reaching that conclusion. There is no reason why the costs of the appeal should not be awarded to the Council as the successful party. Accordingly the appellant must pay the Council's costs of the appeal.

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