Snowy Monaro Regional Council v Cmunt

Action is allegedly not taken

1. The Council contends that Mr and Mrs Cmunt have failed to comply with each of the Prevention Notice, the Structures Order and the Advertising Sign Order.
2. The Council contends that Mr and Mrs Cmunt have failed to comply with the Prevention Notice by: causing, allowing or permitting more than two dogs to be kept at the property at any one time; not constructing a solid fence around the rear yard blocking the dogs' view into adjoining properties; not constructing a solid gate (adjacent to the east facing wall of the property); and not constructing one or more sheds to accommodate the dogs which enable each dog to be housed in a separate enclosure from which it cannot see any other dog.
3. The Council contends that Mr and Mrs Cmunt have failed to comply with the Structures Order by not removing any of the structures identified in the Structures Order by the date specified or at all. The Council contends that each of those structures remain at the property to date.
4. The Council contends that Mr and Mrs Cmunt have failed to comply with the Advertising Sign Order by failing to remove the advertisements and advertising structure by the date specified or at all. The Council contends that the advertisements and advertising structures remain at the property to date.

The Council brings enforcement proceedings

1. The Council alleges that the failure of Mr and Mrs Cmunt, first, to comply with the Prevention Notice is a breach of the POEO Act and, secondly, to comply with the Structures Order and the Advertising Sign Order is a breach of the EPA Act.
2. On 22 September 2016, the Council commenced proceedings in this Court to enforce compliance with the Prevention Notice, the Structures Order and the Advertising Sign Order and to remedy and restrain the breaches of the POEO Act and EPA Act. The Council has standing to bring the enforcement proceedings to remedy and restrain the breaches under s 252 of the POEO Act and s 123 of the EPA Act, notwithstanding that the Prevention Notice, Structures Order and Advertising Sign Order were issued by the former Snowy River Shire Council. There is no limitation on the person who can bring civil enforcement proceedings.
3. In the Amended Summons, the Council seeks: declarations that Mr and Mrs Cmunt have failed to comply with each of the Prevention Notice, the Structures Order and the Advertising Sign Order (prayers for relief 1, 4 and 7 of Amended Summons of 24 July 2017); orders that Mr and Mrs Cmunt take specified action which will have the effect of causing Mr and Mrs Cmunt to comply with the Prevention Notice, the Structures Order and the Advertising Sign Order (prayers for relief 2, 5 and 8 of Amended Summons of 24 July 2017); and orders that if Mr and Mrs Cmunt do not take the specified action ordered by the Court, the Council may take that or other action (orders 3, 6 and 9 of the Amended Summons of 24 July 2017).

The proceedings are heard

1. The proceedings have been heard over three days last week. The Council has adduced evidence, including documentary, photographic and video, and oral evidence, seeking to establish that Mr and Mrs Cmunt have failed to comply, and continue to date to fail to comply, with the Prevention Notice, the Structures Order and the Advertising Sign Order. Mr and Mrs Cmunt tendered documentary evidence and Mrs Cmunt gave oral evidence contesting that they had failed to comply with the Prevention Notice, the Structures Order and the Advertising Sign Order. They submitted that the Court should not make the declarations or orders sought by the Council or any alternative orders, and instead should dismiss the proceedings.

Breach of the notice and orders is established

1. For the reasons I will shortly explain, I have determined that: Mr and Mrs Cmunt have failed to comply with each of the Prevention Notice, the Structures Order and the Advertising Sign Order; the Court should make declarations that they have failed to comply, and that these failures result in Mr and Mrs Cmunt breaching the POEO Act and EPA Act respectively; the Court should make orders remedying the breaches by ordering that Mr and Mrs Cmunt not keep dogs at the property, remove the unauthorised structures specified in the Structures Order and remove the advertisement and advertising structure specified in the Advertising Sign Order; and the Court should make orders allowing the Council to remove the structures and advertising structure if Mr and Mrs Cmunt fail to do so.

Service of the notice and orders

1. Before addressing the issues of whether Mr and Mrs Cmunt failed to comply with the Prevention Notice, Structures Order and Advertising Sign Order, it is necessary to deal with the issue of whether the notice and orders were served on Mr and Mrs Cmunt.
2. I will start with the Prevention Notice. The Council first sent a letter giving notice of the Council's intention to give a prevention notice on 23 June 2015. The letter was headed "Notice of Council's Intention to give a Prevention Notice under section 96, Protection of the Environment Operations Act 1997" and dated 23 June 2015. It was in the form of a letter on the Council's letterhead and was signed by Mr Broder. It invited Mr and Mrs Cmunt to make representations to the Council as to why the proposed Prevention Notice should not be given, the terms of the proposed Prevention Notice or the proposed period for compliance. It advised that if the Prevention Notice is issued, Mr and Mrs Cmunt will be required to pay a fee of $492 for the administrative costs of issuing the Prevention Notice.
3. Mr Broder gave evidence at the hearing that he scanned the letter giving notice, which he had signed, and put a copy in the file. The copy tendered in evidence is a copy of the scanned letter on the file. Mr Broder said he sent the letter giving notice to Mr and Mrs Cmunt in two ways. First, he placed a copy of the letter giving notice in an envelope addressed to Mr and Mrs Cmunt at 12 Kiparra Drive and hand delivered and placed it in the letterbox at 12 Kiparra Drive. Second, he sent another copy of the letter giving notice by prepaid registered post to Mr and Mrs Cmunt at 12 Kiparra Drive.
4. Mrs Cmunt received at least one of the letters giving notice because she took up the invitation in the letter to make representations to the Council about issuing the Prevention Notice. She said she sent a letter dated 10 July 2015 asking the Council to cancel the notice (in Mrs Cmunt's letter of 22 August 2015 to the Lord Mayor). Mrs Cmunt says "no reply at all was received" from the Council. Mrs Cmunt said in another letter dated 22 August 2015, this time to the Council's General Manager: "I received a Notice about Prevention Notice, dated 23rd June 2015. By law I have the right to say something about this and receive a response from Council. I wrote to Council - delivery confirmation proves that Mr Broder received my letter dated 10th July 2015, in hand 15th July 2015 (due date was 17th July 2015). In the letter I asked that my solicitor was [given] time to say something in this matter. Nothing from what I asked happened. I didn't even receive a reply."
5. Mrs Cmunt said she included in her letter to the General Manager the "Letters about Prevention Notice dated 23rd of June 2015 and 7th August 2015."
6. On 7 August 2015, the Council issued the Prevention Notice. The Prevention Notice was entitled "Direction to take preventative action (section 96 Protection of the Environment Operations Act 1997)" and was dated 7 August 2015. The Prevention Notice stated that Mr and Mrs Cmunt were required to pay a fee of $506 to the Council for the administrative costs of preparing and giving this Notice. The Prevention Notice was on Council letterhead and was signed by Mr Broder.
7. Mr Broder gave evidence that he followed the same procedure for sending the Prevention Notice that he had explained that he had followed in sending the letter giving notice of Council's intention to issue the prevention notice. He scanned the signed Prevention Notice, placed one copy on the file, placed a second copy in an envelope addressed to Mr and Mrs Cmunt at 12 Kiparra Drive, which he hand delivered and placed in the letterbox at 12 Kiparra Drive (taking a photograph of the addressed envelope inside the letterbox) and posted a third copy by prepaid registered post to Mr and Mrs Cmunt at 12 Kiparra Drive. The Council kept a record of the Australia Post Article ID for the registered post. The Council's record stated that Article ID 532699529017 was sent to Mr and Mrs Cmunt at 12 Kiparra Drive, being a "prevention notice under POEO Act."
8. The Council also tendered a copy of the first page of the Prevention Notice with the envelope photocopied over the top of the upper part of the first page. The envelope is addressed to Mr and Mrs Cmunt at 12 Kiparra Drive, Berridale. It had affixed a registered post prepaid label with Article ID 532699529017 (the same Article ID as in the Council's record) and a stamp on the envelope "Postage Paid Australia". The envelope was stamped with "Return to Sender", dated "29/9" with the reason stated to be "unclaimed". The envelope also bore the Council's stamp "Received 30 Sep 2015 Records Berridale Office" affixed after the envelope had been returned by Australia Post.
9. In her letter to the Lord Mayor dated 22 August 2015, Mrs Cmunt said: "We again received a Direction and an invoice for $500 for the writing of a letter." She asked the Lord Mayor for: "2. The cancellation of the Direction to take Preventative Action 3. The cancellation of the $506 administration fee"
10. Also on 22 August 2015, Mrs Cmunt wrote a letter to the Council's General Manager. In that letter, after referring to the earlier letter giving notice dated 23 June 2015, Mrs Cmunt said: "Last week in out letterbox appeared a letter Direction to take preventative action which wasn't written by Council. And the best part is that on the letter Council has written I need to pay an Administration fee of $506. I can receive a Prevention Notice only from Council not from a private solicitor. So the Prevention Notice is invalid."
11. Mrs Cmunt said she had included in her letter to the General Manager "Letters about Prevention Notice dated 23rd of June 2015 and 7th August 2015."
12. Mrs Cmunt asked the Council's General Manager for: "2. The Cancellation of the Direction to take Preventative Action 3. The cancellation of the $506 Administration fee"
13. In a postscript to the letter, Mrs Cmunt said: "PS My solicitor will contact you regarding the Preventative Notice."
14. On 7 September 2015, Ms Lucinda Knapp, a solicitor with the Shoalcoast Community Legal Centre, wrote to the Council's General Manager. The letter was entitled "Re: Marie Cmunt - Direction to take Preventative Action". The letter stated: "1. We have been instructed to act for Marie Cmunt in relation to the above matter and we are instructed that out client is not the owner or keeper of any dogs. 2. We understand that there have been ongoing issues between the council and out client in relation to alleged offensive noises coming from dogs on the property. Our client refutes the allegation that she is keeping dogs on the property and further advises that council has no grounds to direct our client to take preventative action. 3. If the notice is not withdrawn and the fee waived, our client instructs that the matter will be appealed in the Land and Environment Court. 4. We look forward to a prompt resolution."
15. The Council submitted that it has proven that the Prevention Notice was served on Mr and Mrs Cmunt in a number of ways. First, s 321(1) of the POEO Act states that, for the purposes of the POEO Act, any notice or document may be served or given to a person or may be served on a person in any of the ways specified in paragraphs (a) to (f). Two of these ways are relevant: "(c) by posting it duly stamped and addressed to the person at the place last shown in the records of the appropriate regulatory authority as the person's place of residence or business, or (d) by posting it duly stamped and addressed to the person at the place indicated by the person as an address to which correspondence may be posted (including for example a post office box)".
16. In relation to (c), the Council referred to the evidence of Mr Broder concerning posting a duly stamped, prepaid envelope enclosing the Prevention Notice, Council's record of posting the envelope enclosing the Prevention Notice by registered post, and the returned duly stamped and registered post envelope enclosing the Prevention Notice. The duly stamped envelope enclosing the Prevention Notice was addressed to Mr and Mrs Cmunt at 12 Kiparra Drive, Berridale. This address was last shown in the Council's records as Mr and Mrs Cmunt's place of residence. Mr Cmunt had informed the Council in his application for a Pensioner Concession for the year commencing July 2014 that his residential address was 12 Kiparra Drive, Berridale. Mrs Cmunt had stated her residential address as 12 Kiparra Drive in her correspondence with the Council and in her discussions with Council officers, including Ms Bortoli.
17. The Council submitted, therefore, that the Prevention Notice had been posted to Mr and Mrs Cmunt in accordance with s 321(1)(c) of the POEO Act.
18. Secondly, the Council submitted that the Prevention Notice was posted to Mr and Mrs Cmunt in accordance with s 321(1)(d) of the POEO Act. The Prevention Notice was posted in a duly stamped envelope and addressed to Mr and Mrs Cmunt at the place indicated by them as an address to which correspondence may be posted. When Mr and Mrs Cmunt purchased the property at 12 Kiparra Drive in 2010, their solicitor, Last & Maxwell of Cooma, in the notice of sale/transfer report to the rating authority, Snowy River Shire Council, gave the address for service of notices as "Mr and Mrs J & M Cmunt, 12 Kiparra Drive, Berridale NSW 2628 Australia". Mrs Cmunt agreed in cross-examination that this information was provided by their solicitor on behalf of her and her husband.
19. Thirdly, the Council submitted that, apart from serving the Prevention Notice in the ways authorised by s 321(1)(c) and (d) of the POEO Act, the Prevention Notice was served on Mr and Mrs Cmunt by coming into their possession. In Tweed Shire Council v Furlonger (2014) 206 LGERA 1; [2014] NSWLEC 156, Biscoe J held at [20] that: "Unless a statute mandates a particular method of service, a document is served if it comes into the possession of the person for whom it is intended, and the means by which the person obtained the document are usually immaterial: Howship Holdings Pty Ltd v Leslie (No 2) (1996) 41 NSWLR 542 at 544; [1996] NSWSC 314."
20. The Council submitted that the Prevention Notice did come into the possession of Mr and Mrs Cmunt. The evidence of Mr Broder establishes that he hand delivered the Prevention Notice by placing the envelope containing the Prevention Notice in the letterbox at 12 Kiparra Drive. Mrs Cmunt acknowledges in her letters dated 22 August 2015 to the Lord Mayor and to the Council's General Manager that the Prevention Notice was placed in their letterbox. Mrs Cmunt said that "last week" a letter "Direction to take preventative action" appeared in "our letterbox." Mrs Cmunt referred in her letter to the Council's General Manager specifically to "Letters about Prevention Notice dated 23rd of June 2015 and 7th August 2015." These are the dates of the letter giving notice of Council's intention to give a prevention notice dated 23 June 2015 and the Direction to take preventative action dated 7 August 2015. Mrs Cmunt refers to the Prevention Notice by the heading in it, namely "Direction to take preventative action". Mrs Cmunt refers to and asks for the cancellation of the administrative fee of $506, which is the precise amount stated in the Prevention Notice. The earlier letter dated 23 June 2015 giving notice of the Council's intention to issue a prevention notice had stated a lesser administrative fee of $492. Mrs Cmunt made similar references in her letter to the Lord Mayor.
21. Mrs Cmunt said in her letter to the Council's General Manager that her solicitor will contact the General Manager regarding the "Preventative Notice". Mrs Cmunt evidently gave a copy of the Prevention Notice to their Solicitor, Ms Knapp of the Shoalcost Community Legal Centre. In her letter dated 7 September 2015 to the Council's General Manager, Ms Knapp referred specifically to the "Direction to take Preventative Action". She referred to her instructions from Mrs Cmunt about the Direction to take preventative action, that Mrs Cmunt is not the owner or keeper of any dogs. She said that if the notice was not withdrawn Mrs Cmunt had instructed that the matter will be appealed to the Land and Environment Court. An appeal (which is a statutory right) only lies against the Prevention Notice issued under s 96 of the POEO Act and not against a letter giving notice of Council's intention to give a prevention notice, which has no statutory basis in the POEO Act.
22. The Council submitted that this evidence establishes that the Prevention Notice came into the possession of Mr and Mrs Cmunt and hence was served on them.
23. Mrs Cmunt disputed that she had received the Prevention Notice. She said she had received the letter giving notice of the Council's intention to give a prevention notice dated 23 June 2015. But Mrs Cmunt said that she and her husband "have not received a Prevention Notice." By this Mrs Cmunt said that she had not received a document entitled "Prevention Notice". She said she did receive a letter entitled "Direction to take preventative action" but she said it was completely different to the Prevention Notice dated 7 August 2015 tendered by the Council.
24. Amongst the differences, she said that the letter she received was "unofficially written on plain paper" and not on the Council's letterhead, it "wasn't written by Council", it was unclear who sent the letter, and the layout of the letter was completely different. However, Mrs Cmunt did not produce or tender the copy of the notice that she said she did receive, so there was no opportunity to compare the document she said she did receive and the Prevention Notice.
25. I find that Mr and Mrs Cmunt did receive the Prevention Notice dated 7 August 2015. They were served with the Prevention Notice in the three ways submitted by the Council, for the reasons given by the Council that I have summarised above. It may be that Mrs Cmunt's confusion arises from the fact that the Prevention Notice dated 7 August 2015 is not in fact entitled as a "Prevention Notice" but as a "Direction to take preventative action." The letter giving notice of Council's intention to issue a prevention notice may have, understandably, given rise to an expectation on the part of Mrs Cmunt that the notice that the Council would issue would be called a "Prevention Notice". But s 96 of the POEO Act did not require the title of "Prevention Notice" to be used instead of "Direction to take preventative action" in order to be a valid prevention notice under s 96 of the POEO Act.
26. I turn now to the two orders under s 121B of the EPA Act, the Structures Order and the Advertising Sign Order each dated 12 November 2015.
27. Section 153 of the EPA Act provides for the service of notices and other documents under the EPA Act. It provides, so far as is relevant: "(1) Where under this Act any notice or other document is required to be given to or served upon any person, the notice or other document may be given or served: (a) in the case of an individual: (i) by delivering it to him or her, or (ii) by sending it by prepaid post addressed to him or her at the address, if any, specified by him or her for the giving of notices or service of documents under this Act, or, where no such address is specified, at his or her usual or last known place of abode or his or her last known place of business".
28. The Council submitted the Structures Order and the Advertising Sign Order were served on Mr and Mrs Cmunt by the mode of service referred to in s 153(1)(a)(ii) of the EPA Act. The evidence of Ms Bortoli and Ms McKay is that both of these orders (which were issued on the same day, 12 November 2015) were sent by prepaid post to Mr and Mrs Cmunt at their residential address of 12 Kiparra Drive, Berridale. Ms Bortoli said: "33. On 12 November 2015 I sent an Order under item 2 of the Table to section 121B of the EPA Act (first Order) [this is the Structures Order] and an Order under item 5 of the Table to section 121B of the EPA Act (second Order) [this is the Advertising Sign Order] to the Respondents… 34. I placed the first and second Orders in an envelope addressed to Marie and Jiri Cmunt, 12 Kiparra Drive, Berridale NSW 2628. 35. I then sealed and placed the envelope in the Council's tray for outgoing ordinary mail. I made a record of the letter containing the first and second Orders being posted in a notebook. The notebook entry was witnessed and signed Ms McKay…"
29. Ms McKay said: "30. At approximately 8.45 am on 12 November 2015, in my presence Ms Bortoli posted two orders issued by the Council under section 121B of the Environmental Planning and Assessment Act 1979 (Orders) to the respondents by ordinary prepaid post. 31. I witnessed and signed a contemporaneous notebook entry made by Ms Bortoli which recorded the placement of the Orders in an envelope and the placing of the envelope in the outgoing mail tray for ordinary post in the Snowy River Shire Berridale Office…"
30. The Council submitted that the address of 12 Kiparra Drive, Berridale is, firstly, the address specified by Mr and Mrs Cmunt for the giving of notices or service of documents under the EPA Act. As earlier noted, Mr and Mrs Cmunt's solicitor gave the address of 12 Kiparra Drive, Berridale as their address for service of notices in the notice of sale/transfer report to the Council on 12 November 2010. Secondly, the address of 12 Kiparra Drive, Berridale was the usual or last known place of abode of Mr and Mrs Cmunt. Both Mr and Mrs Cmunt have, in their correspondence and communications with the Council, specified that address as their residential address.
31. The Council submitted that service by the mode of service specified in s 153(1)(a)(ii) of the EPA Act was complete when the Structures Order and the Advertising Sign Order were each sent by prepaid post addressed to Mr and Mrs Cmunt at the address of 12 Kiparra Drive, Berridale. Analogously to what was held in Kyogle Shire Council v Muli Muli Local Aboriginal Land Council (2005) 62 NSWLR 361; [2005] NSWCA 4 at [32] and [37], each of the modes of service referred to in s 153(1) contain within them all that is necessary to enable determination of when the particular mode of service has been completed or effected. The mode of service referred to in s 153(1)(a)(ii) is complete when the notice is sent by prepaid post addressed to the person at the address, if any, specified by the person for the giving of notices or service of documents under the EPA Act or, where no such address is specified, at the person's usual or last known place of abode or the person's last known place of business. It follows that the act of posting a notice by prepaid letter addressed in accordance with s 153(1)(a)(ii) of the EPA Act not only effects or completes the act of service, but also identifies the time of service.
32. Mrs Cmunt contested that she had received the Structures Order or the Advertising Sign Order. I find, however, that both orders were served on Mr and Mrs Cmunt, in the way submitted by the Council. The evidence of Ms Bortoli and Ms McKay establishes that both orders were send by prepaid post to Mr and Mrs Cmunt at 12 Kiparra Drive, Berridale, which was the address specified by them for the giving of notices or, if not, their usual or last known place of abode. Service was effected and complete when the orders were posted by prepaid post to them at that address.

Breach of the Prevention Notice

1. The Prevention Notice required Mr and Mrs Cmunt to not keep more than two dogs at the property at any one time and to take the other action directed in the Prevention Notice by 2 October 2015 (other than provide adequate food and drinking water for the dogs, which was to be done immediately after the commencement of the Prevention Notice).
2. The Council officers and the Police officer undertook numerous inspections of the property on and after 2 October 2015 and observed more than two dogs were kept at the property. These inspections and observations include the following.
3. On 6 October 2015, Ms Bortoli and Ms McKay, both Council Compliance Officers, inspected the property at around midday. They walked into the rear yard of the house at 18 Kiparra Drive, which is the house directly to the rear of Mr and Mrs Cmunt's property at 12 Kiparra Drive. They went up to the rear fence which is on the common boundary between 18 and 12 Kiparra Drive. Ms Bortoli observed: "23. I also observed dogs in the rear yard of the Premises. The dogs started barking. As I approached the fence line, a dog jumped up and placed its paws on top of the fence. It appeared to be a Rottweiler. Both Ms McKay and I hesitated and the dog dropped down. 24. I said to Ms McKay, 'Please take photos' and approached the left hand side of the Premises. 25. I heard the dogs bark again and I then saw a dog place its paws on the fence. I do not know if it was the same dog." Ms McKay observed: "21. Again, I could then see into the rear yard of the Premises. I observed Ms Bortoli taking some [measurements] of the rear fence of the Premises. Whilst Ms Bortoli was taking measurements, two dogs on the Premises approached the rear fence and started barking."
4. On 21 October 2015, Mr Stirling, a Council Ranger, and Ms McKay, a Council Compliance Officer, inspected the property in the afternoon. Mr Stirling parked the car in front of the property. Ms McKay exited the car and stood on the street verge in front of the property. Ms McKay said: "From there I observed: a. a driveway gate made of wooden fence palings with gaps of approximately 4 to 5 cm between each of the palings; b. five dogs barking from behind the driveway gate; c. one small black puppy behind the driveway gate; d. the Premises were a residential brick house; and e. through a glass window that went all the way to the floor at the front of the Premises, I saw a black and tan dog sitting in front of the window. 5. During the time I observed the dogs, the barking was loud and constant. Some of the dogs at the gate were standing on their hind legs with their paws placed on the gate while barking. At other times, the dogs jumped up and down on the fence while barking."
5. Ms McKay took photographs, which among other things showed dogs behind the driveway gate (able to be seen through the gaps in the wooden palings). Ms McKay also took short video footage, which recorded the sound of dogs barking.
6. Mr Stirling remained in the car but was able to observe the front of the house and the driveway gate. He observed: "a. There were a number of dogs both inside and at the side gate of the Premises. b. The side gate between the Premises and 10 Kiparra Drive had wooden palings attached. There were gaps of approximately 5cm (in my estimate) between each paling. c. Five dogs were visible behind this gate. All of the dogs were barking and some of the dogs were standing with their front legs on the top of the metal frame of the gate. In addition there was one small puppy lying at the bottom of the gate. d. The barking was loud and aggressive. e. One dog was visible through the window of the house on the Premises."
7. On 22 October 2015, Mr Broder, who was at the time the Acting Manager of the Regulation and Compliance Unit of the then Snowy River Shire Council, inspected the property in the afternoon with Ms Hrasky, a Council Administration Officer. Mr Broder did not enter the property but made his observations from the street in front of the property and over the side fences on the common boundaries of the property and 10 Kiparra Drive (on the left hand side of 12 Kiparra Drive as viewed from the street) and 14 Kiparra Drive (on the right hand side of 12 Kiparra Drive as viewed from the street). At times, Mr Broder used a step ladder to attain sufficient height to see over the fences. Mr Broder took photographs.
8. As Mr Broder approached the property from the street in front of the property he could hear dogs barking from the property. The barking was very loud and constant. He could see and hear that the dogs were jumping at what Mr Broder described as the front gate between the property and 10 Kiparra Drive.
9. Mr Broder then entered 10 Kiparra Drive through a gate and walked to the rear yard. He observed a number of dogs behind the front gate of the property (at 12 Kiparra Drive). Mr Broder took a number of photographs, including one looking over the dividing fence between 10 and 12 Kiparra Drive into the rear yard of the property (12 Kiparra Drive) with the dividing fence between 12 and 14 Kiparra Drive visible in the background. In the middle ground is a long strip of artificial turf with at least four large animal bones, drinking water receptacles and a shed beneath a large tree.
10. Mr Broder left 10 Kiparra Drive and walked along Kiparra Drive to the front of the property. From there he could see one dog was visible sitting in the front window of the house. He took a photograph of the dog in the window. He also took a short video of the front gate. Mr Broder observed another gate between the property and 14 Kiparra Drive, which had timber palings attached but with gaps between the palings. This wooden paling gate was open in front of another gate, made of open metal. Mr Broder was invited by the occupant to enter and did enter 14 Kiparra Drive. At the rear of 14 Kiparra Drive, Mr Broder stood on a step ladder and took photographs of the rear yard of the property (12 Kiparra Drive). He again saw the shed under the tree in the rear yard of the property and the dividing fence on the rear boundary between 12 and 18 Kiparra Drive.
11. On 18 November 2015, Mr Stirling inspected the property. He observed the property from the roadside in front of the property. He saw that the wooden gate to the side of the house (near 14 Kiparra Drive) was open (in front of the metal gate) and that there were dogs in the backyard. He saw four dogs, which appeared to Mr Stirling to be two Rottweilers, one Kelpie-Rottweiler Cross and a small black puppy. He saw Mrs Cmunt (who he recognised) exit the front door of the house and close the wooden side gate. Mr Stirling took a number of photographs looking through the metal gate to the dogs behind and the rear yard, as well as two photographs of Mrs Cmunt closing the wooden gate in front of the metal gate.
12. On 2 December 2015, Mr Broder and Mr Stirling inspected the property in the afternoon. Mr Broder said: "25. I knocked on the front door of the Premises. No one answered the door. Whilst standing at the front door of the Premises I heard loud barking from the side of the Premises. I was at the front door for approximately 10 minutes and the sound of the dogs barking was very loud. The barking lasted the entire time I was at the front door. 26. I then walked around to the side of the house. From there I saw approximately seven adult dogs and two puppies barking at the gate. They were making a very loud noise. At the time of my observations Mr Stirling was taking a video and sound recording of the noise of the dogs barking."
13. Mr Stirling observed, when he was at the gate to the side of the house, seven dogs barking and jumping at the gate. He recorded a video of the dogs at the gate.
14. Mr Broder and Mr Stirling then drove around to 18 Kiparra Drive. The owner gave permission for them to enter into the rear yard of his house. Mr Broder and Mr Stirling walked down to the paling fence on the common boundary between 12 and 18 Kiparra Drive. Mr Broder said the dogs in the rear yard of the property (at 12 Kiparra Drive) were very aggressive, jumping up at the fence. The fence had gaps in it of approximately 5 mm, which allowed the dogs to see into the backyard of 18 Kiparra Drive. Mr Broder observed a few bones in the backyard of the property. He could not see any structures or sheds that complied with Order 5 of the Prevention Notice.
15. On 17 December 2015, Mr Broder, Ms Bortoli and Ms Brockbank, another Council Officer, inspected the property in the late morning after receiving a complaint from a member of the public about noise coming from the property. Mr Broder observed four dogs barking at the gate on the eastern side of the property, between the property and 14 Kiparra Drive.
16. On 4 May 2016, Mr Broder and Mr Lyons, a Council Ranger, inspected the property in the morning. Mr Broder said: "38. When I arrived at the Premises I walked to the front door and knocked on the sidelight to attract the attention of the occupants. 39. I was unsuccessful in getting any reply from the occupants of the Premises. I noticed that two large black and tan Rottweilers inside the Premises approach[ed] and stood at the front door sidelight panel barking very loudly. At the same time I could hear the sound of barking coming from the eastern side of the Premises. 40. I walked from the front door to the eastern side of the Premises near the side gate and observed three black and tan Rottweiler dogs barking loudly. The side gate consisted of a timber gate and an inner gate, which is a wrought iron farm gate. The dogs were jumping up on the inner gate."
17. Mr Broder said that, with the exception of providing adequate food and water and allowing the dogs outside between 9am and 4pm, none of the preventative action required in the Prevention Notice had been carried out.
18. Mr Lyons observed a number of dogs on the property that looked like Rottweilers. He saw two dogs inside barking at the glass beside the front door and another three dogs at the side gate. The dogs were barking loudly. Mr Lyons could clearly hear the barking when he was attending another house at least 20m away from the property.
19. On 14 September 2016, Mr Broder said he received a complaint about noise from dogs barking at 12 Kiparra Drive.
20. On 23 April 2017, Senior Constable Glasson inspected the property in the afternoon after the police received a complaint about dogs at the property. Senior Constable Glasson parked outside 17 Kiparra Drive, diagonally across the street from 18 Kiparra Drive. He heard the noise of several dogs barking coming from the property (12 Kiparra Drive). Senior Constable Glasson went into the backyard of 18 Kiparra Drive and looked over the back fence on the common boundary with 12 Kiparra Drive. He saw four Rottweiler dogs barking in the rear of the property (12 Kiparra Drive) but could hear more elsewhere in the yard. He filmed a short video clip of his observations. Senior Constable Glasson drove a short distance to the south where, whilst talking to a person he knew, he heard several dogs barking in the rear of 12 Kiparra Drive. He drove to 11 Kiparra Drive directly across the street from 12 Kiparra Drive. He walked to the nature strip outside the property (12 Kiparra Drive). He saw one dog barking in the front of the house and could hear several dogs barking in the rear yard of the property. He filmed a second video clip.
21. On 8 May 2017, Mr Broder inspected the front of the property just after midday. He could hear dogs barking and noted that the noise emanated from the property. He could not see any dogs from the front of the property. Mr Broder then drove around to 18 Kiparra Drive. He walked into the back yard towards the fence on the common boundary between 12 and 18 Kiparra Drive. As he was walking, he heard dogs barking, coming from the rear yard of 12 Kiparra Drive. Mr Broder said: "7. As I approached the back fence I noticed that there were approximately 4 to 5 adult dogs within the Premises. These dogs were barking loudly and jumping at the fence separating the Premises from 18 Kiparra Drive. 8. I attempted to take photos of the dogs but was hindered by a high hessian covered framework attached to the rear fence of 18 Kiparra Drive. 9. I was able to see into the yard of the Premises when standing in the southwest corner of 18 Kiparra Drive's yard. From this position, I looked into the Premises and noticed that there were up to 4 puppies lying on the ground. 10. As I was observing the puppies, I saw a person dressed in pyjamas emerge from the residence on the Premises. I recognised this person to be the first respondent, Ms Marie Cmunt. As I watched, Ms Cmunt walked down to the rear yard of the Premises. 11. I observed Ms Cmunt gather three of the puppies into her arms. She then turned around and walked back towards the residence while carrying the puppies. I heard her call to the adult dogs, who followed her into the house. 12. From this point, I could no longer see any dogs within the yard at the Premises."
22. On 21 June 2017, Senor Constable Glasson again inspected the property in the afternoon after the police received a complaint about dogs at the property. He drove to and parked outside 17 Kiparra Drive, diagonally across the street from 18 Kiparra Drive. He heard the noise of several dogs barking coming from 12 Kiparra Drive. He walked into the backyard of 18 Kiparra Drive, filming a video clip as he walked. He looked over the back fence on the boundary between 12 and 18 Kiparra Drive and saw nine barking Rottweiler dogs in the rear of 12 Kiparra Drive. He then drove around to and parked outside 11 Kiparra Drive, across the street from the property (12 Kiparra Drive). Senior Constable Glasson walked to the nature strip outside 12 Kiparra Drive. He saw, and videoed, one dog barking in the front room and heard several dogs barking in the rear yard of the property.
23. The Council submitted that this evidence establishes that Mr and Mrs Cmunt have failed and are continuing to fail to comply with the Prevention Notice by keeping more than two dogs at the property at one time and not carrying out the works and other preventative action directed by the Prevention Notice.
24. Mrs Cmunt tendered letters she had written to the Court, responding to the Council's evidence, and gave oral evidence at the hearing. Mr Cmunt said he did not wish to give evidence and agreed with everything his wife said.
25. In her letter to the Court of 6 March 2017, Mrs Cmunt said: "Myself and my husband are not the owners of any dogs and in our property there are no dogs registered. The accusation is false and was dismissed by the court in the year 2015 (please see the documents). BAL Solicitors know it very well because they represented the Snowy River Council. These false old accusations were now again sent to your court and on the top of all yet with false names. The dog will appear in our place one in a blue moon in case we have a visitor with a dog. We do not have any Rottweilers. The accusation is not true. If somebody asserts that there are Rottweilers in our place let him give the evidence about it. Up to now nobody gave the evidence about it. The Council knows very well that in our place there are permanently no dogs and that none of our neighbours has no complaints against us. The reason is different…."
26. Mrs Cmunt asserted that a Prevention Notice can be given only to the owner of the dog and not the owner of the property. She said that since she and her husband do not own dogs, the Council could not give her the Prevention Notice.
27. In her letter to the Court dated 13 July 2017, Mrs Cmunt reiterated that neither her nor her husband are or ever were owners of dogs. There is no "registered dog" on their property. She said that "sometimes some dog appears with us when somebody comes for a visit with a dog."
28. Mrs Cmunt attached numerous documents of the former Snowy River Shire Council recording investigations of complaints about barking dogs at 12 Kiparra Drive. All of these documents were in the period from April 2014 to December 2014. There were no documents after the Prevention Notice was issued in August 2015. The documents recorded that when the Council officer attended the property after receiving a complaint in 2014, the officer did not hear barking or see dogs at the property. Mrs Cmunt relied on these documents as establishing that there are and have not been dogs barking at their property.
29. Mrs Cmunt referred to the occasion when she and her husband received a fine for the barking of a dog in 2015. Mrs Cmunt said the dog had already died by that time. She said the proceedings in the Local Court for the offences of failure to comply with a nuisance dog order were dismissed by the Local Court at Cooma on 20 August 2015. Mrs Cmunt said this proved that the Council's accusation that they were keeping barking dogs was false.
30. Mrs Cmunt also instructed Ms Knapp, a solicitor at the Shoalcoast Community Legal Centre, to respond to the Council about the Prevention Notice. Ms Knapp said in her letter dated 7 September 2015: "1. We have been instructed to act for Marie Cmunt in relation to the above matter [the Direction to take Preventative Action] and we are instructed that our client is not the owner or keeper of any dogs. 2. We understand that there have been ongoing issues between the council and our client in relation to alleged offensive noises coming from dogs on the property. Our client refutes the allegation that she is keeping dogs on the property and further advises that council has no grounds to direct out client to take preventative action. 3. If the notice is not withdrawn and the fee waived, our client instructs that the matter will be appealed in the Land and Environment Court."
31. Mrs Cmunt also disputed the validity of the Prevention Notice. One reason was said to be the differences between the letter giving notice of the Council's intention to give a prevention notice and the Prevention Notice itself. A second reason was that both the letter giving notice and the Prevention Notice were signed by Mr Broder who is now employed by the Council as a Liquid Trade Waste Officer, Mrs Cmunt said in that capacity Mr Broder had no authority to issue the Prevention Notice.
32. I find that Mr and Mrs Cmunt have kept dogs at the property in breach of the Prevention Notice. The evidence referred to by the Council clearly establishes the presence of more than two dogs at the property after 2 October 2015 up until 21 June 2017. Numerous Council officers and a Police officer have observed and heard the barking of more than two dogs at the property on the numerous occasions when they inspected the property. The dogs were observed inside the house (through the front window and side panel next to the front door), at the front gates on either side of the house, and in the rear yard of the property. The Council officers and the Police officer took photographs and videos showing the presence of the dogs and recording their barking at the property. The officers also observed and photographed evidence of the presence of dogs in the rear yard of the property, such as water receptacles and animal bones for the dogs. The evidence of Mrs Cmunt that the only occasion on which dogs are present on the property was when a visitor brought a dog is not supported by the evidence.
33. Contrary to Mrs Cmunt's assertion, it was not necessary for the Council to establish that Mr and Mrs Cmunt own the dogs kept at the property or that they be the registered owners of the dogs. The Prevention Notice was addressed to Mr and Mrs Cmunt as the occupiers of the property at which an activity (the keeping of dogs) has been or is being carried out in an environmentally unacceptable manner (being that offensive noise by the dogs is being emitted from the property). The Prevention Notice required Mr and Mrs Cmunt to take the preventative action of not keeping more than two dogs at the property at any one time. Mr and Mrs Cmunt had, as the occupiers of the property, the control and capacity to take this preventative action to ensure that no more than two dogs were kept at the property at any one time. Their control and capacity to take preventative action did not depend on their ownership of the dogs.
34. It was also not necessary for the Council to establish what was the breed of dogs being kept by Mr and Mrs Cmunt at the property. A number of Council officers and the Police officer thought that many of the dogs appeared to be Rottweilers or a Rottweiler-Kelpie Cross. Mrs Cmunt disputes that she and her husband have Rottweiler dogs. However, the breed of dog being kept at the property is irrelevant. The Prevention Notice is not limited to Rottweiler dogs or any other breed of dogs. The Prevention Notice prevents the keeping of more than two dogs of any breed or kind whatsoever at the property at any one time. It matters not, therefore, whether the dogs observed at the property by the Council officers and the Police officer were Rottweilers or a Rottweiler-Kelpie Cross or any other breed or kind of dog. What matters is that more than two dogs were observed at the property on the occasions observed by the officers.
35. The fact that charges for failure to comply with a nuisance dog order were dismissed by the Local Court in August 2015 is irrelevant. The Prevention Notice required Mr and Mrs Cmunt to take different preventative action (of keeping no more than two dogs at the property at any one time) from 2 October 2015. The conduct that is the subject of the present proceedings is the failure of Mr and Mrs Cmunt to comply with the Prevention Notice after 2 October 2015. The Local Court's determination of different charges for different conduct at an earlier time is irrelevant.
36. The Prevention Notice was not invalid as suggested by Mrs Cmunt. There was no statutory basis under the POEO Act for the Council to issue a notice of intention to give a prevention notice prior to giving a prevention notice. The Council chose to write a letter to Mr and Mrs Cmunt giving them notice of its intention to give a prevention notice, but it was not obliged under the POEO Act to do so. Hence, there can be no legal consequence if there was any difference between the letter giving notice and the Prevention Notice. In any event, I do not find that there are any material differences between the letter giving notice and the Prevention Notice.
37. The fact that Mr Broder is now employed as a Liquid Trade Waste Officer with the new Council is legally irrelevant. At the time of issuing the letter giving notice and the Prevention Notice, Mr Broder was employed as the Acting Manager of the Regulation and Compliance Unit of the then Snowy River Shire Council. He was (and still is) an authorised officer for the purposes of the POEO Act, with authority to issue a prevention notice under s 96 of the POEO Act. Mr Broder was (and still is) authorised by virtue of delegated authority from the General Manager of the former Snowy River Shire Council to exercise the Council's powers under Part 6 Division 2A of the EPA Act. Clause 18 of the Local Government (Council Amalgamations) Proclamation 2016 states that a delegation by a former Council that was in force immediately before the amalgamation day is taken to be a delegation by the new Council. The delegation to Mr Broder by the former Snowy River Shire Council therefore is taken to be a delegation by the new Snowy Monaro Regional Council.
38. Accordingly, Mr Broder was authorised to issue the Prevention Notice under s 96 of the POEO Act to Mr and Mrs Cmunt.
39. In conclusion, I find that Mr and Mrs Cmunt have breached Order 1 of the Prevention Notice by keeping more than two dogs at the property at any one time after 2 October 2015. Mr and Mrs Cmunt have also breached Orders 2-3 and 5-8 of the Prevention Notice by not carrying out the works and taking the preventative action specified in those Orders by the date specified or at all. The breach of the Prevention Notice is a breach of the POEO Act.

Breach of the Structures Order

1. The Structures Order identifies and directs Mr and Mrs Cmunt to remove six structures.
2. Three of the structures are along or near the common boundary of 10 and 12 Kiparra Drive. The property at 10 Kiparra Drive is on the western side of the property at 12 Kiparra Drive. The first structure is a clear, Laserlight cladding or sheeting, which has been attached to the existing metal fence that extends along the side boundary from the front or street boundary to a point a bit past midway of Mr and Mrs Cmunt's house on the property. The clear fence is higher than the existing metal fence. Mrs Cmunt said in cross-examination at the hearing that the clear fencing was erected in 2012. It was erected professionally by builders at her direction. This clear fence is the subject of Item 6 of the Structures Order.
3. The second structure is a new wooden paling fence attached to the inside (the side of the property) of an existing wooden paling fence that extends along the side boundary from the point where the existing metal fence finishes to the rear boundary of the property. The new wooden paling fence is higher than the existing wooden paling fence. Mrs Cmunt said in cross-examination at the hearing that this new fence was erected in 2011 or 2012 by professional builders at her direction. This new wooden paling fence is the subject of Item 1 of the Structures Order.
4. The third structure is a large wooden pole with CCTV cameras on top that has been erected inside of the existing wooden paling fence, a little towards the street from the point where the new wooden paling fence commences. The pole is considerably higher than the new wooden paling fence and the eaves of Mr and Mrs Cmunt's house. Mrs Cmunt said in cross-examination at the hearing that the pole with the cameras was installed in 2012 by people who install cameras at her request. Those people advised Mr and Mrs Cmunt that the pole had to be a minimum of 2.5m above the ground in order for the cameras to be effective. The large pole is the subject of Item 4 of the Structures Order.
5. Two of the structures are along or near the common boundary of 12 and 14 Kiparra Drive. The property at 14 Kiparra Drive is on the eastern side of the property at 12 Kiparra Drive. The first structure is another fence described as being of Laserlight material, but this one is not clear, attached on the inside and as an extension of the existing wooden paling fence on the side boundary. The extended Laserlight fence runs the length of the rear yard of the property. It is higher than the existing wooden paling fence. Mrs Cmunt said in cross-examination at the hearing that this extended Laserlight fence was built after she received the letter giving notice of the Council's intention to issue a prevention notice on 23 June 2015, in late June or July 2015. It was erected professionally by builders at her direction. This extended Laserlight fence is the subject of Item 2 of the Structures Order.
6. The second structure is a pole that has been erected inside the existing wooden fence on the boundary of 12 and 14 Kiparra Drive in the rear yard of the property. The pole is a little higher than the top of the extended Laserlight fence. Mrs Cmunt said in cross-examination at the hearing that this pole was erected in 2011 or 2012 by people who install cameras at her direction. The pole is not as high as the pole on the other side (at least 2.5m high) because the cameras served a different purpose, namely, to monitor animals on the ground coming into the rear yard of the property. This pole is the subject of Item 5 of the Structures Order.
7. One structure is along the common boundary of 12 and 18 Kiparra Drive. The property at 18 Kiparra Drive is to the rear (or north) of the property at 12 Kiparra Drive. A panel made of chipboard has been attached to and extends above the existing wooden paling fence on the rear boundary. The chipboard extension is located in about the middle of the existing wooden fence on the rear boundary and is higher than the existing wooden fence. Mrs Cmunt said in cross-examination at the hearing that this chipboard extension was erected in July or August 2015 after Mr and Mrs Cmunt received the letter giving notice of the Council's intention to issue a prevention notice. It was done professionally by builders at her direction. The chipboard extension is the subject of Item 3 of the Structures Order.
8. The Council contends that Mr and Mrs Cmunt were obliged by the Structures Order to remove each of the structures the subject of the Structures Order. Mr and Mrs Cmunt have failed to do so. This failure to comply with an order under s 121B of the EPA Act is itself a breach of the EPA Act (see s 122(b) of the EPA Act). It is not necessary, in order to establish this breach, for the Council to prove that each of the structures was erected without development consent and in breach of s 76A(1) of the EPA Act. The Structures Order was not appealed by Mr and Mrs Cmunt and a court has not declared it to be invalid. It therefore was effective and obliged Mr and Mrs Cmunt to remove the structures as directed in the Order.
9. Nevertheless, the Council also sought a declaration that the erection of each of these six structures required development consent under the EPA Act but Mr and Mrs Cmunt did not obtain consent and hence breached the EPA Act.
10. Between 18 June 2010 and 12 December 2013, the property was zoned 2(v) Village under Snowy River Local Environmental Plan 1997 (SRLEP 1997). In the 2(v) Village zone, the only development allowed without consent was bushfire hazard reduction. Ten nominated developments were prohibited in the 2(v) Village zone, none of which are relevant to the structures erected by Mr and Mrs Cmunt. Development other than development that is allowed without consent or that is prohibited may be carried out within the 2(v) Village zone only with development consent. The structures erected by Mr and Mrs Cmunt fell within this category of development that is allowed only with consent.
11. However, SRLEP 1997 specified that certain types of development were exempt development. Clause 6A(1) provided that: "Development of minimal environmental impact listed as exempt development in Snowy River Development Control Plan E3-Exempt Development as adopted by the Council on 21 December 1999 is exempt development, despite any other provision of this plan."
12. Development of those listed types is, however, only exempt if it complies with the exemption criteria. Clause 6A(3) provided: "Development is exempt and complying development only if it complies with the development standards and other requirements applied to the development by Snowy River Development Control Plan E3-Exempt Development and Snowy River Development Control Plan C4-Complying Development as adopted by the Council on 21 December 1999."
13. One of the types of development listed as exempt development in Schedule 2 of the Snowy River Development Control Plan E3-Exempt Development ('the Exempt Development DCP') was "Fences (Urban areas)". Fences were listed as exempt in specified zones, including Zone 2(v). The exemption criteria with which fences must comply in order to be exempt development included: "Fronting side or rear boundary maximum height 1.8 metres where fence starts 8 metres from front boundary otherwise maximum height of 1 metre."
14. Mr and Mrs Cmunt caused two of the fences to be erected in the period in which SRLEP 1997 and the Exempt Development DCP were in force. The clear fence along the front section of the side boundary of 10 and 12 Kiparra Drive was erected in 2012. The new wooden paling fence along the rear section of the boundary of 10 and 12 Kiparra Drive was erected in 2011 or 2012.
15. The clear fence in the front section of the side boundary of 10 and 12 Kiparra Drive needed to be no higher than 1m for a distance of 8m from the front boundary in order to comply with the Exempt Development DCP. The evidence establishes that the clear fence is higher than 1.8m in height. The top of the clear fence is around the same height as the top of the existing wooden paling fence on the side boundary. This can be seen in the photographs of the two fences, especially where they abut.
16. The existing wooden paling fence is 1.8m high. Mr Messinbird, a building surveyor with the Council, noted at an on-site meeting with Mrs Cmunt at the property on 7 July 2014 that the existing wooden side boundary fence is 1.8m high. He noted that the clear fence was also 1.8m high, which was contrary to the Council's Development Control Plan that required the front fence to be tapered. Mrs Cmunt told Mr Messinbird that: "The fence needs to stay at 1.8m high to protect our property from a further poison spray attack." (Mrs Cmunt had earlier said that they had put the clear sheet cladding in place because a neighbour at 10 Kiparra Drive had sprayed chemicals that had affected grass and plants on Mr and Mrs Cmunt's property). Mr Messinbird advised Mrs Cmunt that she will need to complete the development application form that he handed to her to justify variation of the Council's Development Control Plan by "[t]he front side boundary fence being 1.8m high and not tapered."
17. The new wooden paling fence (which was set back more than 8m along the side boundary from the front boundary) needed to be no higher than 1.8m in order to comply with the exemption criteria for fences in the Exempt Development DCP. The evidence establishes that the new wooden paling fence was between 2.1 to 2.33m high. Mr Broder measured the height of the fence from the 10 Kiparra Drive side of the fence to be 2.33m. Mr Messinbird, in his conversation with Mrs Cmunt on the site of the property on 7 July 2014, observed to Mrs Cmunt that "you have added a new fence on your property inside the existing 1.8m high side boundary fence that is 2.1-2.2m high". Mrs Cmunt responded: "We added the additional fences inside our property to prevent damage from the poison spraying from next door." Mr Messinbird later told Mrs Cmunt that she will need to complete the development application form that he handed her and provide justification for the four matters requiring variation of the Council's DCP, which included "[t]he rear side boundary fence being extended to 2.1-2.2m high".
18. In another record of that conversation with Mrs Cmunt, Mr Messinbird recorded under the heading "side boundary fence in rear yard": "The existing boundary fence is 1.8 mt timber paling fence, Mr and Mrs Cmunt have erected a new paling fence within their property behind the existing fence at a height of approximately 2.1-2.2 mts to prevent further damage to their property from suspected poison spraying from the adjoining property."
19. Mrs Cmunt contested that the Council had proved the precise height of the clear fence at the front or the new wooden paling fence at the rear of the property. She noted that Mr Broder did not enter their property and measure either fence from their property. Mrs Cmunt asserted that the height of the fence could only be measured from their property in order to establish compliance or non-compliance with the exemption criteria. Mrs Cmunt said there is a difference in level between 10 and 12 Kiparra Drive, which meant that Mr Broder's measurement of the height of the fence on the 10 Kiparra Drive side of the fence would not accurately reflect the height of the fence at the 12 Kiparra Drive side of the fence.
20. There are three answers to Mrs Cmunt's concerns. The first is that the evidence that has been adduced is sufficient to establish that the two fences do not meet the exemption criteria: the clear fence at the front is higher than 1m and the new wooden paling fence at the rear is higher than 1.8m. Whilst the height of each fence could have been measured from the 12 Kiparra Drive side, this was not necessary in order for the Council to prove that each fence did not meet the exemption criteria. The Council could prove that the height of each fence exceeded the maximum heights in the exemption criteria by other means, including measuring the height of the fences from the 10 Kiparra Drive side and establishing that the fences are higher than the existing fences that are 1m and 1.8m high respectively.
21. The second answer is the evidence in reply of Mr Broder. Mr Broder said he is an experienced, licensed builder, with a knowledge of levels. He said he assessed there to be a change in levels between 10, 12 and 14 Kiparra Drive, with the land at 12 Kiparra Drive being at a lower level than the land at 10 and 14 Kiparra Drive on either side. Mr Broder said the land falls away from 10 Kiparra Drive to 12 Kiparra Drive, so that the land at 12 Kiparra Drive is lower than the land at 10 Kiparra Drive. Hence, the height of the fence above the (lower) ground level on the 12 Kiparra Drive side would be higher than it would be above the (higher) ground level on the 10 Kiparra Drive side. The height of the fence would therefore be greater than the 2.33m he measured on the 10 Kiparra Drive side.
22. The third answer is that the new wooden paling fence extends higher than the existing wooden paling fence, which is 1.8m high. The new wooden paling fence must therefore be higher than 1.8m high. The exemption criterion in the Exempt Development DCP is that the side fence must not be higher than 1.8m high. The new wooden paling fence therefore does not comply with the exemption criterion. It does not matter what is the precise height of the new wooden paling fence; it is sufficient that it is higher than 1.8m.
23. The extended Laserlight fence on the side boundary of 12 and 14 Kiparra Drive and the chipboard extension to the rear fence between 12 and 18 Kiparra Drive were erected in late June, July or August 2015. At this time, SRLEP 1997 had been repealed and replaced by Snowy River Local Environmental Plan 2013 (SRLEP 2013), which commenced on 13 December 2013. The property was zoned RU5 (Village) under SRLEP 2013. In the RU5 (Village) zone, the only development permitted without consent was home occupations. Many nominated developments were prohibited, but none was relevant to the structures erected by Mr and Mrs Cmunt and the subject of the Structures Order.
24. Dwelling houses, a number of other nominated developments and any other development not specified as being permitted without consent or prohibited in the RU5 (Village) zone were permitted with consent. The fencing structures erected by Mr and Mrs Cmunt on the side boundary between 12 and 18 Kiparra Drive and the rear boundary between 12 and 18 Kiparra Drive would therefore be development permitted only with consent.
25. However, certain development is exempt development, despite any other provision of SRLEP 2013. First, cl 1.9(1) of SRLEP 2013 states that the Plan is subject to the provisions of any State environmental planning policy that prevails over the Plan as provided by s 36 of the EPA Act. One such prevailing State environmental planning policy is State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ('SEPP (Exempt Development)'). That Policy lists development that is exempt development. Clause 1.15 provides that: "(1) Development that is specified in an exempt development code that meets the standards specified for that development and that complies with the requirements of this Division for exempt development is exempt development for the purposes of this Policy. (2) For the purposes of subclause (1), development that is specified includes any specified limitations as to the land on which that development may be carried out."
26. Amongst the development that is specified as exempt are certain fences. At the time of the erection of the fences on the side boundaries of 12 and 14 Kiparra Drive and the rear boundary of 12 and 18 Kiparra Drive around July 2015, the applicable version of SEPP (Exempt Development) dealt with fences in rural zones in cl 2.35. A rural zone was defined in cl 1.5(1) to include Zone RU5, which was the applicable zone at the time for the property. Clause 2.35 provided that the construction or installation of a fence on land within a rural zone was development specified for the Code, except in certain circumstances that were not relevant to those fences. However, as cl 1.15 provided, specified development must meet the standards specified for that development. Clause 2.36 specified the standards for fences that were specified development by cl 2.35. These standards included: "(1)(a) not be higher than 1.8m above ground level (existing), and … (c) be constructed using post and wire or post and rail …"
27. Clause 2.36(2) allowed a variation of the maximum height required in cl 2.36(1)(a): "Despite subclause (1), if the fence is erected on a sloping site and stepped to accommodate the fall in the land the fence may be not more than 2.2m above ground level (existing) at each step."
28. The Council submitted that neither the extended Laserlight fence on the side boundary of 12 and 14 Kiparra Drive nor the chipboard extension on the rear boundary of 12 and 18 Kiparra Drive met these development standards. First, and most obviously, neither fence was constructed using post and wire or post and rail, but were of different construction and materials.
29. Second, each fence is higher than 1.8m above ground level (existing). Mr Broder measured the height of the extended Laserlight fence at two places along the fence, measured from the 14 Kiparra Drive side of the fence. Mr Broder said the height of the fence varied across its length, due to parts of the fence having vertical corrugations attached to the existing timber fence. Mr Broder took a measurement in this part of the fence of 2.2m high. Further along the fence, the Laserlight fencing was attached to the existing fence with the corrugations of the fence running horizontally. The height of this part of the fence was measured by Mr Broder to be 1.9m.
30. Mr Broder also measured the height of the existing wooden fence to be 1.8m. The photographs show the extended Laserlight fence to be higher than the existing wooden fence along the length of the side boundary. Hence, the extended Laserlight fence must be higher than 1.8m.
31. Mr Broder did not measure the height of the chipboard extension attached to the existing fence on the rear boundary of 12 and 18 Kiparra Drive. However, based on the height of the existing fence and the new fence that had been erected, he estimated that the new fence was approximately 2.3m high.
32. Again, Mrs Cmunt contested that the Council had proved the precise height of each fence. She noted that Mr Broder did not enter their property and measure either the fence on the side boundary of 12 and 14 Kiparra Drive or the fence on the rear boundary of 12 and 18 Kiparra Drive from their property. Mrs Cmunt asserted that the land at 14 Kiparra Drive was more than 0.5m lower than their property. Hence, the height of the fence, if measured from their property, would be more than 0.5m lower than the heights of the fence measured by Mr Broder on the 14 Kiparra Drive side of 2.2m and 1.9m, resulting in a fence less than 1.8m high.
33. I find that the extended Laserlight fence on the side boundary of 12 and 14 Kiparra Drive and the chipboard extension on the rear boundary of 12 and 18 Kiparra Drive do not meet the specified development standards for fences under SEPP (Exempt Development). First, neither the extended Laserlight fence nor the chipboard extension meet the description of being "constructed using post and wire or post and rail" in cl 2.36(c).
34. Secondly, neither the extended Laserlight fence nor the chipboard extension meet the maximum height standard of not being higher than 1.8m above ground level (existing) in cl 2.36(a).
35. As I noted when dealing with Mrs Cmunt's concerns about the height of the fences on the boundary of 10 and 12 Kiparra Drive, it was not necessary for the Council, in order to prove that the fences did not meet the specified development standard, to measure the fences from the 12 Kiparra Drive side. The Council could prove that the height of the fences exceeded the maximum height of 1.8m in the development standard by other means.
36. I accept the evidence of Mr Broder that the ground level on the 12 Kiparra Drive side of the fence on the boundary of 12 and 14 Kiparra Drive is at or lower than the ground level on the 14 Kiparra Drive side of the fence. Mr Broder said the land drops away from 14 Kiparra Drive to 12 Kiparra Drive. Hence, the height of the fence above the ground level on the 12 Kiparra Drive side would be equal to or higher than the height of the fence above the ground level on the 14 Kiparra Drive side. The height of the fence would therefore be equal to or greater than the 2.2m or 1.9m measured by Mr Broder on the 14 Kiparra Drive side.
37. Neither fence is erected on a sloping site or stepped to accommodate a fall in the land. Hence cl 2.36(2) was not applicable to allow a variation of the maximum height of 1.8m required by cl 2.36(1)(a).
38. I do not accept Mrs Cmunt's assertion that the photographs of the fence show that the ground level is 0.5m lower on the 14 Kiparra Drive side than the 12 Kiparra Drive side. Mrs Cmunt took no measurements herself of the height of the fence from any side of the fence.
39. Apart from Mr Broder's measurements of the height of the fence on the side boundary of 12 and 14 Kiparra Drive (2.2m and 1.9m) and estimation of the height of the chipboard extension on the rear boundary of 12 and 18 Kiparra Drive (2.3m), the exceedance of the maximum height of 1.8m in the development standard is established by a comparison of the heights of the new fences and the existing fences. Mr Broder measured the height of the existing wooden fence on the side boundary of 12 and 14 Kiparra Drive to be 1.8m. The photographs clearly show the extended Laserlight fence to be higher than the existing wooden fence along the length of the side boundary. Hence, the extended Laserlight fence must be higher than the maximum height in the development standard of 1.8m.
40. The photographs also show the height of the fence on the rear boundary of 12 and 18 Kiparra Drive to be similar to the height of the existing wooden fence on the side boundary of 12 and 14 Kiparra Drive. This means that it too is about 1.8m in height. As the chipboard extension clearly extends about the existing paling fence on the rear boundary, it too must be higher than the maximum height in the development standard of 1.8m.
41. Mrs Cmunt also asserted that she was authorised to erect the fences on the side boundary of 12 and 14 Kiparra Drive and the rear boundary of 12 and 18 Kiparra Drive by the Prevention Notice. Mrs Cmunt said she received the letter giving notice of the Council's intention to give a prevention notice dated 23 June 2015. The letter said that one of the preventative steps that the proposed Prevention Notice will require Mr and Mrs Cmunt to take is to "construct a solid fence not less than 1.8 metres high around the rear yard to block the dogs' view into adjoining properties." Mrs Cmunt said that after receiving the letter giving notice dated 23 June 2015, she caused the fences on the side boundary and the rear boundary to be erected in anticipation of being required by the Prevention Notice to erect a solid fence not less than 1.8m high around the rear yard. Mrs Cmunt submitted that the fences she caused to be erected were not higher than 1.8m but if they were in fact higher then she was authorised by the requirement of the Prevention Notice to construct fences "not less than 1.8m high."
42. There are two responses to this argument. The first is the timing of construction of the fences. Mrs Cmunt said she caused the erection of the fences after she received the letter giving notice dated 13 June 2015 on or around July 2015. This was before the Prevention Notice was issued on 7 August 2015. Order 2 of the Prevention Notice required the construction of the solid fence not less than 1.8m high around the rear yard within 8 weeks of the commencement of the operation of the notice (that being 2 October 2015). Mrs Cmunt therefore caused the fences to be erected before the commencement of operation of the Prevention Notice. The erection of the fences was not authorised by the Prevention Notice.
43. The second response is the fences were not erected in accordance with the terms of the Prevention Notice. Order 2 of the Prevention Notice required the construction of a solid fence not less than 1.8m high around the rear yard. The extended Laserlight fence and the chipboard extension, even if not less than 1.8m high, are not in themselves a solid fence around the rear yard and do not, when added to the existing fences, create a solid fence around the rear yard. The existing paling fences along the side boundary of 12 and 14 Kiparra Drive and the rear boundary of 12 and 18 Kiparra Drive have gaps between the palings in the fences, through which dogs could see into adjoining premises. The extended Laserlight fence and the chipboard extension did not block the dogs' view into adjoining premises through the existing fences, except in the locations where the Laserlight extension and chipboard extension were attached to the existing fence. Furthermore, the new fencing does not extend around the whole of the rear yard. The extended Laserlight fencing did run along the length (or most of the length) of the rear yard on the side boundary of 12 and 14 Kiparra Drive but the chipboard extension was on only a small part of the fence on the rear boundary of 12 and 18 Kiparra Drive. No solid fence was erected along the remainder of the rear boundary. No solid fence was erected pursuant to Order 2 of the Prevention Notice in the rear yard along the side boundary of 10 and 12 Kiparra Drive.
44. For these reasons, the extended Laserlight fence on the side boundary and the chipboard extension on the rear boundary were not erected in accordance with, and were not authorised by, the Prevention Notice.
45. The second way that development could be exempt development is under SRLEP 2013. Clause 3.1 of SRLEP 2013 provides for certain development to be exempt development. Clause 3.1(2) and (3) provide: "(2) Development specified in Schedule 2 that meets the standards for the development contained in that Schedule and that complies with the requirements of this Part is exempt development. (3) To be exempt development, the development: (a) must meet the relevant deemed-to-satisfy provisions of the Building Code of Australia or, if there are no such relevant provisions, must be structurally adequate, and (b) must not, if it relates to an existing building, cause the building to contravene the Building Code of Australia , and (c) must not be designated development, and (d) must not be carried out on land that comprises, or on which there is, an item that is listed on the State Heritage Register under the Heritage Act 1977 or that is subject to an interim heritage order under the Heritage Act 1977."
46. Schedule 2 to SRLEP 2013 lists development that is exempt development, which are various types of signs. There are no provisions dealing with fences. Hence, the fences erected on the side boundary of 12 and 14 Kiparra Drive and the rear boundary of 12 and 18 Kiparra Drive were not exempt development under SRLEP 2013.
47. The other two structures the subject of the Structures Order are the two poles with cameras on top, a taller pole near the side boundary of 10 and 12 Kiparra Drive and a smaller pole near the side boundary of 12 and 14 Kiparra Drive. The taller pole was erected in 2012 and the smaller pole in 2011 or 2012. The erection of both poles required development consent under SRLEP 1997 in the 2(v) Village zone at the time. There were no provisions in SRLEP 1997 or the Exempt Development DCP that listed the erection of such poles as exempt development.
48. Accordingly, in the case of each of the structures identified in the Structures Order, Mr and Mrs Cmunt were required to obtain development consent to erect the structures, but no consent was granted for the structures. The erection of the structures was therefore in breach of s 76A(1) of the EPA Act.

Breach of the Advertising Sign Order

1. The advertising sign comprises two panels displaying advertisements on a metal frame standing erect on poles in the ground. The sign is a free-standing structure, not attached to the front fence of the property. Mrs Cmunt said the advertising sign was erected in 2010 after Mr and Mrs Cmunt purchased the property. The sign is for Mr and Mrs Cmunt's son's real estate business and displays advertisements for properties for sale by the business. Mrs Cmunt said the sign was relocated from the old office of the real estate business that the son bought (the Snowy River Real Estate) located on the Kosciuszko Road at Berridale. Mrs Cmunt said that she spoke to a planning officer at the Council who told her that, provided the sign was located on her property and not on the footpath, she could install it. Mrs Cmunt said the sign was installed by persons who did work for the Council and knew how to install signs properly. A survey report by Mr Foster found that the sign is located within the boundaries of the property.
2. The Council contends that Mr and Mrs Cmunt were obliged by the Advertising Sign Order to remove the advertisements and advertising structure the subject of the Advertising Sign Order. Mr and Mrs Cmunt have failed to do so. This failure to comply with an order under s 121B of the EPA Act is itself a breach of the EPA Act (see s 122(b) of the EPA Act). It is not necessary, in order to establish the breach, for the Council to prove that the advertisements and the advertising structure were erected without development consent and in breach of s 76A(1) of the EPA Act. The Advertising Sign Order was not appealed by Mr and Mrs Cmunt and a court has not declared it to be invalid. It therefore was effective and obliged Mr and Mrs Cmunt to remove the advertisements and advertising structure as directed in the Order.
3. Nevertheless, the Council also sought a declaration that the erection of the advertisements and advertising structure required development consent under the EPA Act but Mr and Mrs Cmunt did not obtain consent and hence breached the EPA Act.
4. At the time of erection of the advertising sign in 2010, SRLEP 1997 and the Exempt Development DCP applied to the property. As earlier indicated, the property was zoned 2(v) Village under SRLEP 1997. The erection and display of advertising signs required development consent in that zone unless the signs were listed as exempt development under the Exempt Development DCP.
5. Items 45 to 50 of the Exempt Development DCP deal with signs. Some items are clearly inapplicable: street signs (item 45), public notice signs (item 48) and temporary signs (item 50). Other items are not applicable because the advertising sign at the property does not meet the location or exemption criteria. The advertising sign on the property is not a sign within a site or building (item 46) because it does not meet the exemption criterion of not being visible from outside the site. The advertising sign is not a business identification sign (item 47) because it does not meet the location criterion of being in zone 1(a), 3(c) or 7 (the property was in zone 2(v) at the time). Finally, the advertising sign is not a real estate sign (item 49) because it does not meet the exemption criteria that the sign "only indicates that premises or place is for sale or letting", "only erected in property or place for sale or letting" and "not displayed for more than 10 days after sale, letting or auction." The advertising sign advertises for sale properties other than the property of 12 Kiparra Drive on which the advertising sign is erected and has remained at that property since it was erected in 2010.
6. Accordingly, the Council contended that the advertising sign was not exempt development under SRLEP 1997 and the Exempt Development DCP and development consent was required under SRLEP 1997 to erect the advertising sign and display advertisements. Mr and Mrs Cmunt did not obtain development consent to erect the advertising sign and display advertisements. This was in breach of s 76A(1) of the EPA Act.
7. The Council further contended that the advertising sign did not become exempt development under SEPP (Exempt Development). The Advertising and Signage Exempt Development Code in SEPP (Exempt Development) operated from 22 February 2014. However, the Council contended that the advertising sign on the property was not development that is specified by that exempt development code or met the standards specified for that development.
8. Clause 2.84 specified certain building identification signs to be exempt development. Clause 2.84 provides: "The construction or installation of a building identification sign on the facade of a building for the purpose of identifying or naming a building is development specified for the purposes of this code if it is not constructed or installed on a heritage item or draft heritage item, in a heritage conservation area or draft heritage conservation area."
9. The expression "building identification sign" used in SEPP (Exempt Development) has the same meaning as it has in the Standard Instrument (Local Environmental Plans Order) 2006: see cl 1.5(2) of SEPP (Exempt Development). The Dictionary to the Standard Instrument defines "building identification sign" to mean "a sign that identifies or names a building and that may include the name of a building, the street name and number of a building, and a logo or other symbol but does not include general advertising of products, goods or services."
10. The Council contended that the advertising sign on the property does not meet this definition of "building identification sign" as it includes general advertising of properties for sale by the real estate business.
11. The Council also contended that the advertising sign does not meet other aspects of the description of specified development in cl 2.84. The advertising sign is not constructed or installed "on the facade of a building." The advertising sign is erected as a free-standing structure in front of but not attached to the front fence of the property. The advertising sign is not "for the purpose of identifying or naming a building." The advertising sign does not identify or name any building on the property on which it has been erected.
12. The Council contended that the advertising sign on the property does not meet the standards specified in cl 2.85 for the development of building identification signs specified in cl 2.84. The standards specified in cl 2.85 include that the development must: "(a) have only one sign displayed on each street frontage, and … (g) not include any advertising of goods, products or services."
13. The advertising sign on the property comprises two panels of advertisements, not one sign displayed on each street frontage. It also includes advertising of the properties for sale by the real estate business.
14. Clause 2.86 specified certain wall signs to be exempt development. The Council contended the advertising sign on the property does not meet the description or the specified development of wall signs in cl 2.86 or the standards specified in cl 2.87 for that development. The description of the specified development in cl 2.86 is: "The construction or installation of a business identification sign (including a business identification sign for a home business) that is flat mounted or painted on the exterior wall of an existing building, or on an existing boundary fence or wall, is development specified for the purposes of this code if it is not constructed or installed on a heritage item or draft heritage item, in a heritage conservation area or draft heritage conservation area."
15. The Council contended that the advertising sign on the property is not a "business identification sign" within the definition in the Standard Instrument. The Dictionary to the Standard Instrument defines "business identification sign" to mean a sign: "(a) that indicates: (i) the name of the person or business, and (ii) the nature of the business carried on by the person at the premises or place at which the sign is displayed, and (b) that may include the address of the premises or place and a logo or other symbol that identifies the business, but that does not contain any advertising relating to a person who does not carry on business at the premises or place."
16. The Council contended that the advertising sign on the property does not meet this definition of "business identification sign" as it includes general advertising of properties for sale by the business.
17. The Council also contended that the advertising sign is not "flat mounted or painted on the exterior wall of an existing building, or on an existing boundary fence or wall", as it is a free-standing structure in front of, but not attached to, the front fence of the property.
18. The Council also contended that the advertising sign on the property does not meet the standards specified in cl 2.87 for the development of wall signs specified in cl 2.86. Amongst the development standards in cl 2.87 are: "(a) not result in more than 4 business identification signs of this type for the building (which may refer to more than 1 business within the building) so long as only one sign is visible on each elevation of the building, and (b) be attached to the building in which the business identified in the sign is located, and (c) if it is a sign that is located in a residential, rural or environment protection zone: (i) for a sign for a home business, home industry or home occupation-not more than 1m² in area, and (ii) for a sign for any other use-not be more than 2.5m² in area".
19. The Council contended that the advertising sign on the property does not meet these standards. As to (a), more than one sign (two in fact) is visible on the front elevation of the building. As to (b), the advertising sign is not attached to the building in which the real estate business identified in the sign is located, which would be the house on the property. The advertising sign is not attached to any wall of the house. It is a free-standing structure in front of the front fence on the property.
20. As to (c), the advertising sign is located in a rural zone (which includes zone RU5 in which the property is located under SRLEP 2013). The Council accepted, for the purpose of argument, that the son's real estate business could potentially be a home business. However, if the advertising sign on the property could be said to be for a home business, it needed to be no more than 1m² in area. The Council referred to the evidence of Mr Messinbird who said, in a conversation with Mrs Cmunt on 7 July 2014 on the site of the property, that the advertising sign was bigger than was allowed under Schedule 2 of SRLEP 2013 and cl C6.1-2 of Snowy River Development Control Plan 2013, which specified a maximum size for business identification signs of 2m². If the advertising sign on the property is bigger that 2m², it must be bigger than the 1m² in area specified in cl 2.87(c)(i) of SEPP (Exempt Development).
21. The Council also submitted the advertising sign did not become exempt development under SRLEP 2013. Clause 3.1(2) of SRLEP 2013 provides that development specified in Schedule 2 that meets the standards for the development contained in that Schedule and that complies with the requirements of Part 3 of SRLEP 2013 is exempt development. Schedule 2 specifies a variety of signs to be exempt development, including business identification signs and real estate signs. The Council contended, however, that the advertising sign is neither development specified in Schedule 2 nor meets the standards for development specified in Schedule 2.
22. The advertising sign is not a business identification sign, as it does not meet the definition of "business identification sign" in SRLEP 2013 (which is the same definition as in the Standard Instrument), for the reasons given earlier. The advertising sign does not meet certain of the standards for business identification signs in Schedule 2, including "(5) Maximum size-2m²." The Council referred to the evidence of Mr Messinbird that the advertising sign was bigger than 2m².
23. The Council submitted the advertising sign does not meet the standards for real estate signs in Schedule 2, including: "(1) Must only indicate that premises, land or business is for sale or lease. (2) Must be erected on the property or land for sale or lease. … (4) Must not be displayed for more than 10 days after sale, lease or auction. (5) Maximum size for properties being sold or let by private treaty-1.25m long x 1m high".
24. The Council contended that the advertising sign advertises properties for sale other than the property on which the sign is erected, has remained on that property since it was erected in 2010, and is bigger than 2m².
25. For these reasons, Council submitted the advertising sign has not become exempt development under either SEPP (Exempt Development) or SRLEP 2013. The advertising sign continued to require development consent but no consent has been obtained. The breach of s 76A(1) of the EPA Act therefore continues.
26. Mr and Mrs Cmunt submitted that, when they erected the advertising sign on the property, they believed they were permitted to do so. Mrs Cmunt said she spoke with a planning officer at the Council who told her that, provided the sign was located on her property and not the footpath, she could install it. Mrs Cmunt said she has erected the sign on her property, as Mr Foster's survey shows. Mrs Cmunt said the sign was relocated from the old Snowy River Real Estate office after her son bought that real estate business. The sign was allowed to be erected and to display advertisements at that previous location. Mrs Cmunt submitted the sign should be allowed to be erected and to display advertisements at the new location of the real estate business, which is at 12 Kiparra Drive.
27. Mrs Cmunt said the sign has been professionally erected and is a quality sign, There have been no complaints from neighbours or other residents about the sign.
28. I find that the erection and display of the advertising sign on the property needed development consent, initially under SRLEP 1997 and continuing under SRLEP 2013, but no consent has been obtained. The advertising sign was not exempt development under SRLEP 1997 and the Exempt Development DCP at the time the sign was erected and has not become exempt development under SRLEP 2013 or SEPP (Exempt Development), for the reasons given by the Council and summarised above. I adopt the Council's submissions on these matters. The erection of the advertising sign and display of advertisements without development consent involves a breach of s 76A(1) of the EPA Act.
29. Mrs Cmunt's submissions are not an answer to the Council's case that the erection of the advertising sign and display of advertisements required development consent, but no consent has been obtained, and are therefore in breach of the EPA Act.
30. The fact that the advertising sign might have previously been erected and displayed advertisements at the former location of the real estate business cannot make the erection of the sign and display of advertisements at the new location of the real estate business permissible without consent. The permissibility of carrying out of development is specific to each location. The permissibility of development at one location cannot be transferred to another location. In this case, the erection of the sign and display of advertisements at the property required development consent, regardless of whether development consent was required or obtained for the advertising sign at the former location.
31. The fact that a planning officer of the Council might have said to Mrs Cmunt that she could install the sign provided she located it on her property and not on the footpath also does not assist. Such a verbal statement of a Council officer is not the grant of development consent under the EPA Act and does not relieve Mr and Mrs Cmunt from the obligation under the EPA Act not to carry out the development of erecting the advertising sign and displaying advertisements without first obtaining development consent.
32. The facts that the advertising sign was professionally erected, is a quality sign, and no complaints about the sign have been received also do not relieve Mr and Mrs Cmunt from the statutory obligation to obtain development consent or remedy the breach of the EPA Act by them not obtaining development consent.
33. Finally, none of the matters raised by Mrs Cmunt are an answer to the breach of the EPA Act by Mr and Mrs Cmunt failing to comply with the Advertising Sign Order that directed them to remove the advertising sign by 26 November 2015. Mr and Mrs Cmunt did not appeal to the Court against the Advertising Sign Order. That order remained effective and obliged Mr and Mrs Cmunt to remove the advertising sign identified in the order. Mr and Mrs Cmunt have failed to comply with the order and thereby have breached the EPA Act.

Remedies for the breaches of the notice and orders

1. The Council seeks in its Amended Summons declaratory and injunctive relief.
2. The declaratory relief is of two kinds: first, declarations that Mr and Mrs Cmunt have failed to comply with the Prevention Notice (para 1 of the Amended Summons), the Structures Order (para 4), and the Advertising Sign Order (para 7) and, secondly, a declaration that Mrs Cmunt has carried out development on the property in breach of the EPA Act (para 10).
3. The injunctive relief is of two kinds: first, orders that Mr and Mrs Cmunt take specified action to remedy the failures to comply with the Prevention Notice (para 2 of the Amended Summons), the Structures Order (para 5) and the Advertising Sign Order (para 8) and, secondly, orders that, should Mr and Mrs Cmunt fail to comply with these orders of the Court, the Council may enter the property and take specified action, including removing any dogs on the property (para 3 of the Amended Summons) and carrying out the work of removing the structures and the advertising sign required by the Court orders (paras 6 and 9).
4. The declaratory relief sought by the Council is appropriate. The Court, having found that Mr and Mrs Cmunt have failed to comply with the Prevention Notice, the Structures Order and the Advertising Sign Order, should make declarations to that effect. The erection of the structures and the advertising sign also involved the carrying out of development in breach of the EPA Act. It is appropriate for the Court to make a declaration to that effect.
5. Mr and Mrs Cmunt did not make any submission contesting the appropriateness of the Court making the declarations sought by the Council. Their argument was that the Court should not make the declarations sought because they were not in breach of the POEO Act by failing to comply with the Prevention Notice or the EPA Act by failing to comply with the Structures Order or the Advertising Sign Order. I have rejected this argument. Otherwise, Mr and Mrs Cmunt did not contest the Court making the declarations if it found that they were in breach of the POEO Act and EPA Act.
6. The injunctive orders directing Mr and Mrs Cmunt to take the action of removing the structures and advertising sign that the Structures Order and Advertising Sign Order required to be removed are appropriate to remedy the failures to comply with these orders.
7. The Council seeks further orders that, if Mr and Mrs Cmunt do not remove the structures and the advertising sign, the Council may enter the property and remove them. These orders are proposed as a fall-back remedy to ensure compliance with the Structures Order and Advertising Sign Order and the Court orders. The Council already had power under s 121ZJ(1) of the EPA Act if Mr and Mrs Cmunt failed to comply with the Structures Order and the Advertising Sign Order to "do all such things as are necessary or convenient to give effect to the terms of the order, including the carrying out of any work required by the order." Under s 121ZJ(11) of the EPA Act, the Court has power, in these proceedings brought by the Council as a result of Mr and Mrs Cmunt's failure to comply with the Structures Order and the Advertising Sign Order, to order the Council to exercise its functions under s 121ZK(1) of the EPA Act, including carrying out the work required by the Structures Order and the Advertising Sign Order. I consider it is appropriate to order the Council to do this, if Mr and Mrs Cmunt fail to comply with the Court orders to take the action of removing the structures required to be removed by the Structures Order and the Advertising Sign Order.
8. Mr and Mrs Cmunt did not contest the appropriateness of the Court making the injunctive orders sought by the Council to remedy the failures to comply with the Structures Order and the Advertising Sign Order. Again, Mr and Mrs Cmunt did contend that they were not in breach of the Structures Order or the Advertising Sign Order and accordingly the Court should not order them to remove the structures or the advertising sign. I have rejected that argument. Otherwise, they did not make any submission that the injunctive orders for the removal of the structures and the advertising sign should not be made or should be made on different terms (such as that some structures should be removed but not others).
9. The Council submitted that the Court should not, in the exercise of its discretion, decline to order the removal of the structures and the advertising sign.
10. First, the Council submitted that the breaches of the Structures Order and the Advertising Sign Order are not mere technical breaches, but rather have environmental consequences. Both the Structures Order and the Advertising Sign Order recite that the structures and advertising sign are unsightly and out of character with surrounding development. One complaint was received from a person at 10 Kiparra Drive about the new and higher wooden fence on the side boundary of 10 and 12 Kiparra Drive and the taller pole with cameras on top near that boundary. A photograph taken from the rear of the house at 14 Kiparra Drive towards the extended Laserlight fence on the side boundary of 12 and 14 Kiparra Drive shows the height of the new fence and its effect on the outlook from 14 Kiparra Drive. The new fences erected on the two side boundaries and the rear boundary all are considerably higher than the maximum heights specified in the development standards in order for fences to be exempt development.
11. Secondly, if the Court were to allow the structures and advertising sign to remain, the Council, as the responsible consent authority, would have been denied the opportunity to assess the structures and advertising sign under the EPA Act and the applicable environmental planning instrument and development control plan. This undermines the objects and integrity of the development application, assessment and approval process under the EPA Act.
12. Thirdly, Mr and Mrs Cmunt had ample opportunity to make a development application under s 78A(1) of the EPA Act seeking development consent for the structures and the advertising sign or to apply for a building certificate under s 149B of the EPA Act in respect of the structures and the advertising sign. The Council referred to the extensive discussions and correspondence in 2014 and 2015 between the Council and Mrs Cmunt regarding Mr and Mrs Cmunt applying for development consent for four of the structures, being the new wooden paling fence and the clear fence on the side boundary of 10 and 12 Kiparra Drive, the taller pole with cameras near that side boundary, and the advertising sign at the front of the property, Notwithstanding numerous extensions of time, Mr and Mrs Cmunt never made a development application seeking consent for those structures. Even after Mr and Mrs Cmunt received the notices of intention to issue the Structures Order and the Advertising Order on 9 October 2015, they still did not make a development application.
13. Mr and Mrs Cmunt did not appeal against either the Structures Order or the Advertising Sign Order. Both orders advised Mr and Mrs Cmunt of their right to appeal to the Court against the whole or part of the order within 28 days of the order being served on them.
14. After these proceedings were commenced, Mr and Mrs Cmunt could still have made a development application or applied for a building certificate with respect to the structures and the advertising sign. They still chose not to do so.
15. In these circumstances, the Council submits that it would be inappropriate for the Court to decline to grant the injunctive orders sought by the Council for the removal of the structures and the advertising sign.
16. I agree with and adopt these submissions of the Council. I find that it is appropriate to order the removal of the structures and the advertising sign. Mr and Mrs Cmunt have had ample opportunities, over many years, to apply for development consent or a building certificate for the structures and the advertising sign, but have chosen not to do so. Even today, they still have not expressed any willingness to apply for development consent or a building certificate.
17. There is a further reason why it is appropriate to order the removal of the extended Laserlight fence on the side boundary of 12 and 14 Kiparra Drive and the chipboard extension on the rear boundary of 12 and 18 Kiparra Drive. Mrs Cmunt said she erected these fences in response to the letter giving notice of the Council's intention to issue a prevention notice, which would require the erection of a solid fence of not less than 1.8m high around the rear yard to block the dogs' view into adjoining properties. As I explain below, I consider that the appropriate order to remedy the breach of the Prevention Notice and the POEO Act is to order Mr and Mrs Cmunt to not keep any dogs at the property. If there are no dogs, there is no need for a solid fence of not less than 1.8m high to block the dogs' view into adjoining premises. The fences erected by Mr and Mrs Cmunt, purportedly to comply with the Prevention Notice and block the dogs' view into adjoining premises, can be removed.
18. The injunctive orders sought by the Council in relation to the keeping of dogs on the property need more discussion. The Council framed the injunctive orders sought in para 2 of the Amended Summons in the alternative. The Council's preferred order was in para 2(a), that Mr and Mrs Cmunt, within 60 days, "cease keeping dogs on the Premises." The alternative order, in para 2(b), was similar to the direction in the Prevention Notice and required Mr and Mrs Cmunt, within 60 days to do all of the following: "i. not keep more than [2] two dogs at the Premises at any one time; ii. construct a solid fence 1.8 metres high around the perimeter of the rear yard to block the dogs' view into adjoining properties; iii. construct a solid gate (adjacent to the east facing wall) to block the dogs' view of Kiparra Drive; iv. construct one or more sheds (the Shed) to accommodate the dogs which enables each dog to be housed in a separate enclosure from which it cannot see any other dog; v. when the dogs are in the Shed, keep each dog in a separate enclosure from which it cannot see the other dog; and vi. not allow dogs to remain outside the Shed or the dwelling on the Premises except between the hours of 9 am and 4 pm."
19. The slight difference between this order and the direction in the Prevention Notice was the addition of the phrase "or the dwelling on the Premises" in para (vi) of the order.
20. In submissions at the hearing, the Council also accepted that the Court could make a further alternative order that Mr and Mrs Cmunt, within 60 days, not keep more than one dog at the property at one time. The Council submitted this would be its second preference. Its first preference would be the order in para 2(a) of the Amended Summons and its third preference would be the order in 2(b) of the Amended Summons.
21. The Council submitted that the most appropriate order to remedy the on-going failure of Mr and Mrs Cmunt to take the preventative action required by the Prevention Notice is to order them to cease keeping dogs at the property. The Council has repeatedly brought to Mr and Mrs Cmunt's attention the numerous complaints from multiple complainants about barking dogs at the property. The Council informed Mr and Mrs Cmunt that it would issue a prevention notice and then did issue the Prevention Notice on 7 August 2015 to address the problem of barking dogs on the property. Over this time, Mr and Mrs Cmunt have failed to take preventative action to prevent dogs on the property barking and emitting offensive noise from the property. In these circumstances, ordering Mr and Mrs Cmunt to take the same preventative action that they have failed to take may be futile. Instead, the problem of barking dogs at the property may be best solved by Mr and Mrs Cmunt not keeping any dogs at the property: there will be no dogs to bark. This is the most effective means to solve the problem and compliance can be readily monitored and enforced.
22. The alternative of allowing the keeping of only one dog carries more risk that the problem may not be solved: one dog might still bark. Nevertheless, having only one dog might reduce the propensity of the dog to bark. This assumes that one of the causes of the dogs barking is having multiple dogs at the property, which interact by barking. Reducing the number of dogs to one reduces this interaction between dogs, and potentially barking.
23. If two dogs are allowed to be kept at the property, the Council submits that the preventative action directed in the Prevention Notice needs to be taken to prevent the dogs interacting with other dogs on the property and with activity on adjoining properties.
24. Mr and Mrs Cmunt submitted that, as they have no dogs on the property, no orders about keeping dogs need to be made. Nevertheless, Mr and Mrs Cmunt submitted that the Court should not make the orders sought by the Council for two other reasons. First, other residents in Berridale are allowed to keep dogs at their properties and a special rule should not be made for Mr and Mrs Cmunt. Mrs Cmunt said there are dogs barking all over Berridale. The Court should not make a special order stopping dogs barking on their property.
25. Secondly, Mrs Cmunt submitted that a relative, who lives in Queensland, visits Mr and Mrs Cmunt from time to time and brings a dog. Mrs Cmunt said the relative is not able to board the dog in Queensland. If the Court ordered Mr and Mrs Cmunt to not keep any dogs at the property, the relative would not be able to visit Mr and Mrs Cmunt because the dog could not come. Mrs Cmunt said this would deny Mr and Mrs Cmunt having an ongoing relationship with the relative.
26. I find that, in all the circumstances of the case, the most appropriate order to remedy the ongoing breach of the Prevention Notice and the POEO Act is to order that Mr and Mrs Cmunt not keep dogs at the property. I do not consider that this will cause undue hardship to Mr and Mrs Cmunt.
27. First, Mr and Mrs Cmunt have repeatedly said to the Council and have reiterated to the Court that they are not and never were the owners of dogs and that they have not kept dogs at the property. I have found that, in fact, dogs have been kept at the property. Nevertheless, if the facts were to be as asserted by Mr and Mrs Cmunt, an order preventing them keeping dogs at the property will not cause them prejudice. They say that they have no dogs which, by the Court order, they would be prevented from keeping at the property.
28. Secondly, the fact that other people in Berridale might keep dogs at their properties and that some of those dogs might bark is not a reason for the Court not to make an order that Mr and Mrs Cmunt not keep dogs at their property. A special order is being made that Mr and Mrs Cmunt not keep dogs at their property because of their past conduct in keeping dogs that bark and emit offensive noise and in breaching the Prevention Notice and the POEO Act. The special order is to remedy that conduct and these breaches. Other people in Berridale have not been established to be in breach of a prevention notice or the POEO Act because of dogs barking at their properties. The differential treatment of Mr and Mrs Cmunt, compared to other residents of Berridale, is appropriate and responsive to their different conduct.
29. Thirdly, a court order that Mr and Mrs Cmunt not keep dogs at their property does not prevent any person, including the relative in Queensland, from visiting Mr and Mrs Cmunt. It simply means that a visitor cannot bring a dog to, and Mr and Mrs Cmunt cannot keep a dog at, the property. The visitor may need to have someone look after the dog at the visitor's property or the dog may need to be boarded at some other property or facility, in order for the visitor to be able to visit Mr and Mrs Cmunt. This is a usual practice. The fact that the relative from Queensland would prefer not to have the dog looked after in such ways is not a reason not to make an order that Mr and Mrs Cmunt not keep dogs at the property.
30. Further, there is no evidence about how many visitors to Mr and Mrs Cmunt's property have dogs, how many of these visitors bring their dogs when they visit, how often they visit with dogs and why they cannot make arrangements for the care of the dogs elsewhere rather than bringing the dogs when they visit.
31. For these reasons, it is appropriate to order Mr and Mrs Cmunt to not keep dogs on the property.
32. I am not, however, persuaded that it is appropriate to make the further order sought by the Council that, should Mr and Mrs Cmunt fail to comply with the Court order that they not keep dogs on the property, the Council can enter the property and remove any dogs that are present there. First, I have doubts as to whether that is an appropriate order for the Court to make under s 252(6) of the POEO Act to remedy or restrain the breach of the Prevention Notice and the POEO Act. There is no provision in the POEO Act equivalent to s 121ZJ(11) of the EPA Act whereby the Court can order the Council to exercise its functions under s 98 of the POEO Act, if a person does not comply with a prevention notice, to take action to cause the prevention notice to be complied with by itself or by its employees, agents or contractors. Second, it may cause problems in the execution of the order. The dog on the property might not be a dog kept by Mr and Mrs Cmunt in contravention of the Court order. Third, it may be unduly intrusive on Mr and Mrs Cmunt's right to privacy and to quiet enjoyment of their property.
33. Instead, I consider it is preferable for the Council to take the usual action to enforce compliance with the Court's orders, including bringing action for contempt for failure to comply with the Court's order.
34. The Council also sought an order that Mr and Mrs Cmunt pay the Council's costs of the proceedings (para 11 of the Amended Summons). The proceedings are in the nature of civil enforcement proceedings and are in Class 4 of the Court's jurisdiction. The usual order for costs for these types of proceedings is that costs follow the event: see s 98 of the Civil Procedure Act 2005 and r 42.1 of the Uniform Civil Procedure Rules 2005. The event is the practical result of the proceedings. In these proceedings, the Council has been successful in establishing that Mr and Mrs Cmunt have breached the Prevention Notice, the Structures Order and the Advertising Sign Order and the POEO Act and the EPA Act, and that the Court should make the declaratory and injunctive relief sought by the Council (except for the one order detailed above). The usual order in these circumstances is that the Court should award the costs of the proceedings to the successful party, which is the Council. There are no circumstances, such as any disentitling conduct of the Council in the prosecution of the proceedings, that make it appropriate to refuse costs to the Council.

Orders made by the Court

1. The Court: 1. Declares that the first and second respondents have failed to comply with the Prevention Notice given to them by the applicant pursuant to s 96 of the Protection of the Environment Operations Act 1997 dated 7 August 2015 in relation to Lot 21 DP 250314, known as 12 Kiparra Drive, Berridale NSW 2628 (the Premises). 2. Orders the respondents, within 60 days, to cease keeping dogs on the Premises. 3. Declares that the respondents have failed to comply with Order 0008/2016 given to them by the applicant pursuant to s 121B of the Environmental Planning and Assessment Act 1979 dated 12 November 2015 to remove the identified structures (first Order). 4. Orders that the respondents comply with the first Order within 60 days by: 1. removing the additional wooden structure (greater than 1.8m in height) separate to the existing fence along the side boundary (between 10 and 12 Kiparra Drive); 2. removing the additional structure (greater than 1.8m in height) separate to the existing fence along the side boundary (between 12 and 14 Kiparra Drive); 3. removing the additional structure (greater than 1.8m in height) separate to the existing fence along the rear boundary (between 12 and 18 Kiparra Drive); 4. removing the wooden pole at the side boundary (between 10 and 12 Kiparra Drive); 5. removing the pole within the Premises (near the side boundary between 12 and 14 Kiparra Drive); and 6. removing the "Laserlight" fencing attached to the fence along the side boundary (between 10 and 12 Kiparra Drive) at the front of the Premises. 1. Orders that, should the respondents fail to comply with order 4 above, the applicant is to exercise its functions under s 121ZJ(1) of the Environmental Planning and Assessment Act 1979 to do all such things as are necessary or convenient to give effect to the terms of the first Order, including the carrying out of any work required by the first Order. 2. Declares that the respondents have failed to comply with Order 0007/2016 given to them by the applicant pursuant to s 121B of the Environmental Planning and Assessment Act 1979 dated 12 November 2015 to remove the identified advertisements and advertising structure (second Order). 3. Orders that the respondents comply with the second Order within 60 days by: 1. removing the advertisements displayed on the advertising structure; and 2. removing the advertising structure from the Premises. 1. Orders that, should the respondents fail to comply with order 7 above, the applicant is to exercise its functions under s 121ZJ(1) of the Environmental Planning and Assessment Act 1979, to do all such things as are necessary or convenient to give effect to the terms of the second Order including the carrying out of any work required by the second Order. 2. Declares that the first respondent has carried out the following development on the Premises in breach of the Environmental Planning and Assessment Act 1979: 1. the erection of the structures which the respondents were required to remove by the first Order, and 2. the erection of the advertising structure which the respondents were required to remove by the second Order. 1. Orders the respondents to pay the applicant's costs of these proceedings.

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. Decision last updated: 03 August 2017