Lovelace v Cignarella

The respondent submits that there is no evidence that the City Engineer was dissatisfied with the provision of piping. Accordingly, the Court can draw the inference that if such evidence was available it would not have assisted the applicant's case: see Jones v Dunkel (1959) 101 CLR 298.

Further, the respondent has tendered a photograph that shows a pipe which traverses from the south-west corner of lot 17 beneath Barbara Street to an adjacent reserve. The respondent submits that such piping satisfied condition 1 of the consent.

The respondent also submits that the notifications to council of the finished building and request for inspections lead to the conclusion that the council was satisfied that the conditions of the consent had been observed.

Lastly, the respondent relies upon Building Certificate 89/61 ("the building certificate") which was issued by the council in respect of Lot 17 on 23 January 1989. The respondent submits that the issue by the council of a building certificate confirms that the council was satisfied that the conditions of consent had been fulfilled.

The applicant submits that condition 3 to the consent required no part of either the dwelling or the garage be placed closer to the side boundary of lot 17 than 2'3" or 0.686m. The applicant submits that the use of the term 'eaves' in condition 3 means 'extremities' and that accordingly, the garage on lot 17 has been erected in breach of the consent since it has been constructed adjacent to the southern boundary of lot 17.

The respondent denies that condition 3 required that all structures erected on lot 17 should be positioned at a distance of 2'3" from the side boundaries. The respondent submits that condition 3 applied only to the dwelling and that there is no basis to equate the 'garage' with a dwelling.

Further, the respondent relies on the provisions of Ordinance 70 ("ordinance 70") promulgated pursuant to the LGA. Clause 6.1.(1) of ordinance 70 distinguishes between structures by defined classifications. Pursuant to cl 6.1.(1)(a) of ordinance 70 a single dwelling house is a class I building. Pursuant to cl 6.1.(1)(j) of ordinance 70 an outbuilding is classified as a class X building. The respondent submits that condition 3 of the consent obviously relates to cl 11.6(4)(a) of ordinance 70 which relevantly states:- (4) Unless a Class I building in [sic] subject to one of the exceptions set out in paragraph (a), (b), (c), (c1) or (d) of subclause (2), guttering, eaves, hoods and similar structures or attachments erected between the external plane of the face of an external wall and any boundary line shall be at a distance of not less than- (a) 675 mm in the case of a building containing one or two storeys…

The respondent submits that the distance of 675mm and 2' 3" or 686mm is, for practical purposes, the same and demonstrates the council was directing condition 3 to a class I building, namely the dwelling.

The issue of the building certificate prevents the council from issuing an order for repair or demolition of the existing buildings or from taking proceedings to require the demolition, alteration, addition or rebuilding of or to the building pursuant to s 317AE of the Local Government Act 1919 ("the LGA") which was then in force. A similar provision is currently enacted as s 149E of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). However, such certificate does not operate to bar a third party from instituting proceedings: see Cramer and Ors v Leichhardt Municipal Council and Anor [1992] NSWLEC 10 per Stein J and see also Conomos v Chyssochoides [1997] NSWLEC 163 per Sheahan J.

The Court must be satisfied that the respondent has breached the condition imposed by the LGA and that such breach continues under the EP&A Act. Such breach must be present and continuing to be capable of remedy pursuant to s 124 of the EP&A Act: see Winn v Director General National Parks and Wildlife and Ors [2001] NSWCA 17 at par [99] and par [101] per Spigelman CJ. Accordingly, to establish the alleged breach of Condition 1 the Court must be satisfied that the respondent has failed to pipe near to the south west section of the dwelling to the satisfaction of the City Engineer.

There is no evidence which establishes that the City Engineer is not satisfied with any aspect of the arrangements for the watercourse referred to in condition 1.

Nor could the Court conclude that a lack of piping near the south western section of the dwelling inevitably leads to the conclusion that the City Engineer was or remains dissatisfied. No evidence exists to justify such inference. The Court therefore cannot be satisfied upon the balance of probabilities that the respondent is, and continues to be, in breach of condition 1 of the consent.

The Court can also take notice of the issue of the building certificate. In the absence of evidence to the contrary, the inference can be drawn that if the council regarded any of the conditions of the consent as being unfulfilled such certificate would not have been issued.

The construction of a consent does not require a technical interpretation: see Wollongong City Council v Australian Iron & Steel Pty Ltd (1988) 67 LGRA 51 at 56 per Holland J. For this reason a consent should be construed according to its terms. Similarly, extraneous evidence adduced to assist in the interpretation of a consent is generally not admissible: see Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321; Auburn Municipal Council v Szabo (1971) LGRA 427; Sericott v Snowy River Shire Council (1999) 108 LGERA 66.

Accordingly, it would be inappropriate for the Court to read the word 'eaves' in condition 3 of the consent as meaning 'extremities of all structures' or 'extremities of the garage' as claimed by the applicant. The apparent purpose of condition 3 was to ensure that the class I dwelling on lot 17 would comply with the provisions of ordinance 70 and not that all structures on lot 17 would be set back from the boundaries by the distance specified in condition 3.

Even if condition 1 and condition 3 were found to have been breached, the Court is satisfied that the delay of approximately twenty years in the institution of these proceedings would not entitle the applicant to the equitable relief that has been sought. There is no evidence before the Court to show that the alleged breaches have had any adverse effect whatsoever including any impact upon the adjoining property of the applicant. Accordingly, the respondent would suffer an unreasonable burden if he were required to remedy a breach of a consent condition that has no present or continuing consequences.

The Court is therefore satisfied that the application for declaratory relief should be refused. In the absence of any reason to depart from the general rule that costs should follow the event (see Oshlack v Richmond River Council (1998) 193 CLR 72 at 87 per Gaudron and Gummow JJ; at 120-122 per Kirby J) the applicant should pay the costs of the respondent.

1. The application be dismissed.
2. The applicant is to pay the costs of the respondent.
3. The exhibits be returned.

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