Payne v Mosman Municipal Council and Anor

The applicant is the registered proprietor of premises known as 18c Kirkoswald Avenue, Mosman, being the land described in folio identifier 101/583730 ("the Payne premises"). The second respondent is the registered proprietor of premises known as 20 Kirkoswald Avenue, Mosman, being the land described in folio identifier 102/583730 ("the Berry premises").

The Berry premises are burdened by an easement for sewerage purposes and restrictions as to user created by registered instrument P719975 ("the easement"). The easement was granted in favour of the Payne premises over an existing line of sewerage pipes.

By notice of determination dated 9 March 1995, the council granted development consent subject to conditions ("the development consent") to Mr D A Berry in relation to first floor additions, creation of a third storey within the roof and an inground swimming pool at the Berry premises. Condition 1 of the development consent provided that the development was to be carried out in accordance with plan number 94026/01 ("the DA plan"). The DA plan depicts, on the eastern elevation of the building and at its second level, a reinforced concrete pond, to be surrounded by a bagged brickwork enclosure, to which was to be fitted a decorative metal gate. There is no dispute that the position of this structure, although elevated, was over part of the Berry premises subject to the easement.

On 29 August 1995, the council granted building approval subject to conditions ("the building approval") in respect of the first floor additions and swimming pool at the Berry premises, and reference was made, in condition 2, to a plan dated 8 June 1995 numbered 94026/WD01-B ("the BA plan"). The proposal in relation to the structure on the eastern elevation of the Berry premises had changed. It is depicted on the BA plan as a bagged brickwork enclosure surrounding a reinforced concrete slab, and fitted with a decorative metal gate.

In 1997, the second respondent constructed a steel framed structure with lightweight walls and floor ("the disputed structure") on the eastern side of the Berry premises. It is not in issue that the disputed structure has been erected in an elevated position over part of the Berry premises subject to the easement.

The applicant's case is that the disputed structure has been erected without the approval of the council under the Environmental Planning and Assessment Act 1979 ("the EP&A Act") or under the Local Government Act 1993 ("the LG Act") (collectively "the planning legislation"). She contends that the disputed structure was not the subject of either the DA plan or the BA plan, and that the council has not given any other consent in relation to it, nor did it modify the development consent or the building approval. As a consequence, she asserts, the second respondent has failed to comply with either the EP&A Act or the LG Act. An order against the second respondent, however, would be futile, because it is no longer in existence. Accordingly, the applicant seeks an order against the council on the basis that it is the duty of the council to enforce compliance with the planning legislation.

(1) Both development consent and building approval were granted by the council to a structure in the location of the disputed structure and for a use consistent with that of the disputed structure. The only difference is that there has been a change of the materials used in the disputed structure, that is, bagged brickwork and reinforced concrete have been replaced by a steel-framed structure with lightweight walls and floor. There was no requirement for any further consent in relation to the change of materials because, first, the change is minor, and, secondly, the building approval contemplated minor changes to materials. Consequently, there has been no breach of the planning legislation; (2) No evidence has been adduced to establish that the terms of the easement have been breached by the erection of the disputed structure over the position of the easement, but even if there had been such a breach by the second respondent, any claim in respect of it is not within the jurisdiction of this Court, which is confined, by s 20 of the Land and Environment Court Act 1979, to a planning or environmental law as defined by that section; (3) The Court has no power, in any event, to make any order against the council because no breach of the planning legislation by the council has been alleged or made out. Furthermore, the order which is sought against the council relates to a discretionary power of the council, and amounts to a fetter on that discretion, and therefore is also beyond the power of the Court to make.

I deduce from these competing claims that there are three issues for determination in this case. First, has there been a breach of the planning legislation? Secondly, if there has been such a breach, does the Court have power to make orders against the council rather than the party whose breach it is? Thirdly, if the Court does have power to make the order sought against the council, should it do so in the exercise of its discretion? I deal with each of these issues in turn.

There is no dispute between the parties that, on the face of it, the erection of the disputed structure in 1997 required both development consent and building approval. The only issue in dispute is, however, whether or not development consent and building approval had been obtained.

A proposed structure ("the approved structure") on the eastern side of the Berry premises was approved under both the development consent and the building approval. It is depicted on the eastern and southern elevations on both the DA plan and the BA plan. The disputed structure conforms with the approved structure in some respects. It is also on the eastern side of the Berry premises, and it appears to have the same shape as the approved structure. There is, however, a dispute as to whether or not it is in the same location as the approved structure. The council asserts that it is; the applicant denies that it is. No plan or diagram of the disputed structure was furnished by either the applicant or the council, but photographs of it were tendered by the applicant. Those photographs, compared to the DA plan and the BA plan, support a conclusion that, on the balance of probabilities, the disputed structure is substantially in the same location as the approved structure. Both the DA plan and the BA plan show the approved structure as located on the eastern side of the Berry premises adjacent to the southern wall and adjacent to the front entry door. Photographs A and B show a similar location and a similar relationship; they show the front door of the Berry premises and the disputed structure adjacent to it, on the eastern side.

The only difference between the disputed structure and the approved structure, therefore, is the materials from which the disputed structure was constructed. The disputed structure comprises a steel framed structure and lightweight walls and floor. The BA plan shows a bagged brickwork structure and a reinforced concrete slab.

Ms Duggan, for the council, submitted that this is a minor change, and that minor changes were contemplated by the conditions to which the building approval is subject. She referred to conditions 18, 19, 20, 26, 34, 42 and 43. I have examined those conditions and I have read the building approval as a whole. Those conditions do contemplate minor changes in detail, but none of the matters to which they refer involve either the approved structure or the materials to be used in its construction. Furthermore, the BA plan is specific - it stipulates bagged brickwork and a reinforced concrete slab. The disputed structure was not constructed of those materials, and hence I conclude that it has not been erected in conformity with the development consent or the building approval. Since neither the development consent nor the building approval have been formally modified by the council under the EP&A Act, and since no other development consent or building approval has been granted, the construction and use of the disputed structure constitutes a breach of the planning legislation.

I find, however, that the breach is technical. The shape and location of the disputed structure conforms, as I have found, to the approved structure - the only departure is the change in materials. There is no evidence that the change in materials has an adverse environmental impact. I conclude for these reasons that it is a technical breach only, and that is a relevant consideration in the exercise of the Court's discretion to grant relief, a matter which I later address.

Section 124(1) of the EP&A Act relevantly provides as follows: 124(1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. (2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may -

(a) where the breach of this Act comprises a use of any building, work or land - restrain that use;

(b) where the breach of this Act comprises the erection of a building or the carrying out of a work - require the demolition or removal of that building or work; or

(c) … 18. Ms Duggan submitted that an order under s 124 ought not to be made against the council because it did not commit the breach of the EP&A Act. However, I can see no reason to read down the width of the powers of the Court under s 124 by reference to the culpability of the party against whom any order might be made. The purpose of s 124 is to permit the Court to make orders which have the effect of protecting the environment, and protection of the environment is one of the objects of the EP&A Act (s 5(a)(vi)). The Court has power to frame its orders in the light of all the factors in the dispute having regard to the objects of the EP&A Act ( F Hannan Pty Ltd v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306 at 313).

The final issue which arises is whether the Court, in the exercise of the wide discretion which it possesses under s 124, should or should not make the orders which are sought.

It was said that the orders should be made against the council because it had failed in its duty to ensure that the development consent and building approval were complied with. Authority for the proposition that the council had such a duty was said to be Echt and Anor v Ryde City Council and Ors (Cowdroy AJ, NSWLEC, 21 August 1998, unreported), where a declaration was made that the local council had failed to take any action under the LG Act, or at all, to enforce conditions of a building approval. At p 6 of his judgment, Cowdroy AJ (as he then was) stated that "[t]here is no doubt that the Council, as the approving authority, has the responsibility to ensure that the requirements of the … [EP&A Act] …, and of any approval granted thereto, are fulfilled" , and his Honour cited, among other authorities, Warringah Shire Council v Sedevcic (1987) 63 LGRA 360 without, however, referring to any particular passage. In that case, at pp 365 - 367, Kirby P set out a number of guidelines for the exercise of the Court's discretion. One of those guidelines is apparently the passage which Cowdroy AJ had in mind, and it is as follows: In exercising the discretion, it must be kept in mind that the restraint sought is not, in its nature, the enforcement of a private right, whether in equity or otherwise. It is the enforcement of a public duty imposed by or under an Act of Parliament, by which Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment … Because s 123 of the … [EP&A Act] … permits any person (and not just the Attorney-General or a person with a sufficient interest) to bring proceedings in the Court for an order to remedy or restrain a breach of the Act, there is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid …

I take it then that Cowdroy AJ in Echt v Ryde City Council was going no further than saying that a local council's duty to uphold and enforce the planning legislation is a relevant consideration for the exercise of the Court's discretion, and that he was not going so far as to say that the duty fetters the discretion of a council in deciding whether or not to take any particular action in relation to a breach of the planning legislation.

A factor in this case is that the application for relief has been made by a private citizen and not the council. As Kirby P pointed out in Warringah v Sedevcic at p 366, where the application is made by the Attorney-General or a local council, the Court may be less likely to deny relief because the Attorney-General or the local council are seen as the "proper guardians of public rights". I take into account, therefore, the public interest in compliance with the planning legislation and the council's interest in upholding that legislation, but I weigh up those factors together with all other relevant factors, including the conduct of the parties, the extent of the breach, and the fact that the applicant is a private citizen (cf Rowley v New South Wales Leather and Trading Co Pty Ltd and Anor (1980) 46 LGRA 250 at 261).

An important factor in this case is the nature of the breach. It is, as I have found, technical. There is no evidence that construction of the disputed structure in materials other than as specified in the BA plan has had any adverse environmental impact. In this connection, I adopt the definition of the word "environment" in s 4 of the EP&A Act, that is, that it relevantly means "all aspects of the surroundings of humans …". There is no evidence that the disputed structure has an adverse visual impact, or that it impacts upon the privacy of any neighbour, or that it interferes with stormwater drainage or that it is unacceptable by reason of its bulk, scale, size, height or external appearance.

Nor is there any evidence that the disputed structure interferes with the sewerage lines the subject of the easement. The applicant's complaint is that it interferes with access to and maintenance of the sewer line and she claims that it is accordingly a breach of the terms of the consent. I can understand the applicant's concern, but her complaint is not in reality a complaint about a breach of the planning legislation. Instead, it is a complaint about a breach of a private right, that is, a breach of her right to have the easement enforced in favour of the dominant tenement of which she is the registered proprietor. But, as is stipulated by s 20 of the Land and Environment Court Act 1979, that is not a matter which falls within the jurisdiction of this Court.

So far as concerns the easement, the attitude of Sydney Water is ambiguous. Its latest position, as set out in a letter dated 31 March 1998 sent to the council, is that, in the light of material then available to it, it has concluded that the disputed structure "denies access to the line of pipe which is the subject of the easement". But that has not always been its position. On 19 October 1995 it approved the DA plan, stating that the "Position of Structure in relation to Sydney Water's Sewer Main is satisfactory" , and on 23 July 1997, in a letter to Dalgairns Partnership Pty Ltd (presumably acting on behalf of the applicant) it reiterated its consent for the works delineated in the DA plan. The new material which Sydney Water had in 1998 (expressed to be some photographs and a report from a plumbing and drainage company) was not adduced in evidence in these proceedings, but I find it rather remarkable that its view had changed so dramatically, when all that had occurred was the deletion of the pond as originally proposed and a change in the materials of construction. Accordingly, I place little weight upon the attitude of Sydney Water, and I regard it in any event as principally relevant only to a question of whether or not there has been a breach of the easement rather than a breach of the planning legislation.

A factor to consider is the series of complaints made by the applicant (or her husband, on her behalf) to the council. Those complaints began on 4 September 1995 and they continued from time to time until after the disputed structure had been built. However, the complaints were not about the breach of the planning legislation, but were chiefly about the fact that the disputed structure was to be built over part of the Berry premises which is the subject of the easement. In any event, the applicant contends that the council had notice of a breach or possible breach of the planning legislation but failed to take any action. However, the council wrote to the solicitors for the applicant on 24 July 1997 stating that the disputed structure was approved under the development application and building approval, acknowledging that there had been a change in materials, and stating that it had no objection to that change. That letter indicates to me that the council considered that there was no action which it should take, and I do not regard its conduct as supporting orders against it.

Another factor which militates against granting the relief sought by the applicant is the delay in commencing these proceedings. The class 4 application was filed on 16 April 1999, whilst the disputed structure was constructed in January or February 1997. No explanation of this delay was furnished to the Court.

Finally, I have taken into account the form of the injunction which is sought against the council. It suffers, in my opinion, from two defects. First, it is couched in language which is imprecise. It seeks an order from the Court which will require the council to "take all such steps as are necessary pursuant to the Act to have the illegal Structure removed". The steps are not specified, and it is unclear precisely what the council would be required to do to comply with such an order. It is essential that an injunction state distinctly what it is that the council is required to do ( Morris and Anor v Redland Bricks Ltd [1970] AC 652 at 666 - 667), particularly having regard to the serious consequences of failing to comply with an order of this Court.

Plainly, however, the applicant had in mind, in seeking an injunction in those terms, that the council should issue an order under div 2A of pt 6 of the EP&A Act. That division sets out a process whereby, amongst other things, a council may order an owner of a building to demolish that building where it has been erected without prior development consent in a case where development consent is required, and, upon the failure of the owner to observe the terms of the order, the council is itself empowered to carry out the order. But that raises the second defect in the form of the injunction. The process specified under div 2A involves a council in making a number of discretionary decisions. First, it has a discretion under s 121B as to whether or not to give an order. Secondly, under s 121H it must give notice of its intention to give an order, and it has a discretion, under that section, as to the terms of that notice of intention in respect of the period for compliance and the date upon which representations may be made. Thirdly, after considering any representations which have been made, it has a discretion under s 121K as to whether or not to give the order, or whether or not to modify the terms of the proposed order. There are rights of appeal against an order provided in s 121ZK, and if an appeal is made, the council must decide whether or not to oppose that appeal. Finally, it has a discretion under s 121ZJ as to whether or not itself to carry out the work required by the order if the owner of the building fails to comply.

In my opinion, the Court will be reluctant to make an order which determines how discretions vested in the council should be exercised ( Roberts v Hopwood and Ors [1925] AC 578 at 588). In the circumstances of this case, the Court would be disinclined to make the order as sought by the applicant, especially where there is no environmental damage which demands the making of such an order so as to protect the environment.

For all these reasons, I decline in the exercise of my discretion to make the orders which the applicant seeks. I am conscious that the applicant sought declarations as well as an injunction, and that my reasons for declining to grant relief refer in the main to the injunction, but I can see no useful purpose in making the declarations which are sought, and accordingly, I propose to dismiss the application in its entirety.

In accordance with the foregoing, I make the following formal orders:

(1) The application is dismissed. (2) I reserve the question of costs. (3) The exhibits may be returned.

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