Mr Croucher also formed the view that the annex support posts were undersized. He concluded:-
17. In my opinion access to the annex and caravan is unsafe and undesirable.
18. In my opinion the structure's instability presents a real risk of persons, whether inside the structure or in the vicinity of the structure, being seriously injured, were the structure to fall.
10 In his second affidavit sworn 24 September 2004 Mr Croucher expressed his opinion that the support posts would not withstand the impact from any vehicle.
11 The respondent has provided the Court with a statement of facts, being exhibit 1. It establishes that a shed approximately ten metres by ten metres was previously located on the land. The shed contained the respondent's furniture, clothing, tools and other possessions. In 1998 the channel became flooded and inundated the land in consequence of which the respondent's possessions were apparently destroyed. To avoid a repetition, the respondent placed the container on the land with the caravan on top to position his possessions above the level of flood water.
12 The respondent has tendered a letter from Willing & Partners, consulting engineers who were retained either by the council or by Sydney Water. The letter, dated 3 September 1999, is addressed to Mr Brian Findlay of 87 Queen Victoria Street, Bexley, which adjoins the land. The addressee is the respondent's father who is the owner of the premises adjacent to the land. The letter refers to the channel which affects his property and also that of the respondent. The letter states inter alia:-
Your property. The report confirms that the properties at 58 Connemarra Street and 87 Queen Victoria Street have a very high to extreme flood hazard rating. This is due to the high velocities of flow in the open concrete channel, the restricted capacity of the channel and downstream culvert and the rapid rate of the rise and depth of flood waters during flood events. Our modelling studies confirm your observations and the information discussed at our site meeting. Because of this hazard rating the two properties are recommended as being the highest priority for remedial action.
The report thereafter proposed a solution to the flooding problem by increasing the width and depth of the channel and by covering the channel.
13 Mr Brian Findlay who has appeared as agent today for the respondent, informed the Court that he has been endeavouring to arrange to have Sydney Water and/or Rockdale City Council carry out the work described in the letter of Willing & Partners. He has informed the Court that no action has been taken and that Sydney Water has indicated that the proposed work is not on their list of priorities for the next twenty years. However, the council does not own the easement and accordingly has no control over the operations of Sydney Water.
14 The provisions of the EP&A Act section 76A require that development consent to be obtained before any development is carried out. The combined effect of section 76A of the EP&A Act together with the provisions of cl 12 and cl 68 of the LEP make it plain that development without consent is prohibited.
15 The container of itself is a structure: see Wyong Shire Council v Cohen & Anor [2004] NSWLEC 171. The Court is satisfied that the structure which now exists on the land is one which requires consent, as does the former caravan since it is now immobile.
16 Accordingly the Court is satisfied that the council is entitled to the declaration as sought in the amended application.
17 The council has made an application that its costs of these proceedings be paid by the respondent. The council submits that as declarations and orders are to be made in its favour it is entitled to costs to compensate it for its costs and expenditure incurred in the litigation.
18 The respondent says that it has consulted with the council from time to time but the consultations have been unproductive. The solicitor who was retained by the respondent withdrew and the respondent says he was unable to find a solicitor who was prepared to take proceedings against Sydney Water. The respondent submits that the council has the power to control developments. As a consequence of development in the area the respondent claims that it was necessary to place his goods in a location where they would not be subjected to flooding.
19 The Court is mindful of the steps that were taken by the council to avoid the litigation. Prior to the institution of any proceedings a notice dated 5 September 2002 issued pursuant to section 121H of the EP&A Act was served on the respondent relating to the structures on the land. In fact the notice was addressed to Mr J B H Findlay at 87 Queen Street, Bexley. However the Court has evidence that both the respondent and his father resided in the adjoining premises.
20 On 11 November 2002 an order was issued pursuant to section 121H of the EP&A Act. On 30 December 2002 the council wrote to the respondent advising him of the requirement to obey the order and that a further ten days would be allowed to meet the council's requirements.
21 On 16 January 2004 Abbott Tout, solicitors for the council, wrote to the respondent requiring him to make written representations setting out details to justify the existence of the structures, the purpose for which they were used and why legal action should not be taken. In response a letter was written to the council by Mr Brian Findlay advising that he was responding on behalf of his son. The letter states:-
Our solicitors have advised me that I should inform you they have arranged a conference for us with senior counsel for February 24 2004 re this and related matters.
22 No further communication had been received from the respondent by 4 April 2004. On this day the council's solicitors again wrote advising that unless a response was received by 13 April 2004 the institution of proceedings would be recommended to the council.
23 By facsimile dated 5 April 2004 a letter was forwarded by Mr Brian Findlay to the council's solicitors. The letter did not suggest any resolution or constructive proposals to avoid legal proceedings.
24 On 28 April 2004 the council's solicitors advised that proceedings would be commenced. They were commenced shortly after by the filing of an application on 20 May 2004.
25 Pursuant to section 69 of the Land And Environment Court Act 1979 the Court has a broad discretion in respect to the award of costs. The extent of the power was discussed in detail by the High Court of Australia in Oshlack v Richmond River Council (1998) 193 CLR 72. The discretion is unlimited save only that it must be exercised judicially: see Latoudis v Casey (1990) 170 CLR 534 particularly at p 541 per Mason CJ and at page 558 per Dawson J. At p 97 in Oshlack McHugh J said as follows:-
The expression the "usual order as to costs" embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party [104] . If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.
[104] Latoudis (1990) 170 CLR 534 at 543, per Mason CJ; at 562-563, per Toohey J; at 566-567, per McHugh J; Cachia v Hanes (1994) 179 CLR 403 at 410, per Mason CJ, Brennan, Deane, Dawson and McHugh JJ.
26 In Ritter v Godfrey (1920) 2 KB 47 the Court held that ordinarily costs follow the event and that a successful litigant is to receive his costs in absence of special circumstances justifying some other order. Such a principle has been adopted repeatedly in Australian Courts: see for example Oshlack, Melouhowee Pty Ltd (Receiver and Manager Appointed) v Steenbohm (Waddell CJ in Equity, Supreme Court of New South Wales, 6 February 1992, unreported).
27 The costs in these proceedings have been incurred because the respondent has opposed the relief sought by the council. The Court is sympathetic to the predicament of the respondent. However in Save The Showground For Sydney Incorporated v Minister for Urban Affairs and Planning (1998) 105 LGERA 294 the former chief judge stated the principles concerning award of costs at pp 255-256. Costs orders are made in the exercise of the Court's discretion which must be exercised judicially. The council sought to avoid the litigation but the respondent wished to have the matter determined by the Court, as is his right. That right has been exercised and it is only appropriate that the unsuccessful party should meet the council's costs.
28 Accordingly the Court will make the following declarations and orders:-
1. a DECLARATION that the Respondent has by himself, his servants or agents carried out development or caused, permitted or suffered the carrying out of development being the erection of a building comprising an elevated annex, caravan platform, support poles, shipping container and elevated caravan on the subject property being lot C DP 103425, 58 Connemarra Street, Bexley;