However, her Honour did not discuss the relevant authorities.
50 In Sahade v Mosman Municipal Council [2000] NSWCA 251, the principal judgment was given by Stein JA, Handley JA and Heydon JA agreeing. This is a difficult case to deal with for the judgment was an oral, unreserved judgment. Stein JA did not set out the facts of the case or the precise content of all the orders which were under appeal. It appears that Mr Sahade, the owner of land, had been the applicant for and the recipient of a development consent and building approval to permit either the construction or the alteration of a shopping centre. At first instance, Talbot J had made a declaration that Mr Sahade was operating or permitting or suffering the use of the subject premises in breach of conditions of the development consent and of the building approval. His Honour granted remedial relief including an order that Mr Sahade forthwith take and continue to take all reasonable steps to satisfy the requirements of condition 2(i) of the development consent and condition 51 of the building approval.
51 Mr T Robertson SC, counsel for Ms Wilkie in this present appeal, was counsel for the Mosman Municipal Council in Sahade. He has supplied the Court with a copy of his written submissions. They do not greatly illuminate the facts but they make it clear that, in the proceedings at first instance, Mr Sahade called no evidence. Mr Robertson's written submissions included the following passage:
"The appellant's counsel was given the opportunity of calling his client to explain his role in the development, but despite raising the possible existence of a lease in cross-examination, he did not dispel the inference that his Honour correctly drew of his control of the subject land and the things on it: and see s 697 (dot points 9 and 10), Local Government Act 1993. The appellant was hoist on his own petard."
52 In the course of his reasons for judgment, Stein JA said, in a passage which reflects submissions made by Mr Robertson, which Mr Robertson now regrets and would like to retract:
"…. the concern of the appellant with the orders made against him in the Land and Environment Court does not appear to attack his Honour's finding of breaches of the consent and approval but rather to argue that the evidence was not sufficient to implicate the appellant in the breaches. Again, this is to misunderstand the nature of the proceedings. It matters not whether the appellant himself committed the breaches or failed to prevent breaches occurring. Of course, such matters may be relevant to the Court's discretion and to the nature of the orders which may be made to remedy the breach.
The Court's power to grant a remedy in civil enforcement proceedings is dependent on proof that the breach has been committed or, unless restrained, will be committed. It is not dependent on proof that the respondent to the proceedings committed the breach. Nonetheless, in determining whether to make an order to remedy or restrain a breach, and the ambit of any order, the Court will need to be satisfied that the person to be bound by the order is in a position to remedy or restrain the breach."
53 As his Honour did not discuss any authorities, I think it is clear that the issues raised by his Honour in the remarks I have quoted were not the subject of detailed debate and that the Court did not have the advantage of considering the issue in depth. I think it is also clear that the evidence disclosed that Mr Sahade had obtained the development consent and the building approval and had participated in the development and in the operation of the shopping centre. The extent of his involvement may have been in doubt but Mr Sahade called no evidence with respect to that matter. Mr Robertson's written submissions referred to the inference drawn by the trial Judge of Mr Sahade's control over the premises. In my opinion, it is to be implied from such of the orders as the reasons for judgment disclose that the Court considered that Mr Sahade had control over the premises and the power and authority to remedy the breaches. That is implicit in the finding that Mr Sahade was in a position to remedy and restrain the breach. It seems to me that the Court proceeded on the factual basis that Mr Sahade was the owner of the property and was responsible for the development and for the operations of the shopping centre which were the subject of complaint.
54 Thus, the later authorities do not justify departure from the approach taken by Cripps CJ in Ashfield Municipal Council v Andrews and by Cohen AJA in Murdoch v Holroyd City Council. I turn now to the facts of the case.
55 It has been submitted by Mr M G Craig QC with Mr D Parry, counsel for the Council and by Mr J S Wheelhouse, who appeared for Mr Constantine, that Ms Wilkie played a sufficient part in the activities which resulted in the breach of the planning laws to be held liable for that breach. I need not discuss the facts at any length. I agree with the conclusions of the trial Judge. In my opinion, the evidence does not establish that Ms Wilkie did more than sublease the land for a lawful purpose. There was no finding, for example, that the rent was fixed by reference to the illegal use of the premises. Ms Wilkie was not a participant in the unlawful development.
56 Indeed, Ms Wilkie's situation was not unlike that of Mr Constantine. Although Mr Constantine complained to the Council about the activities on the subject property, neither he nor Ms Wilkie exercised their rights to terminate the lease or the sublease. From February 2001, the Council took whatever steps were taken to prevent the unlawful use of the premises. From March until July 2001, when the last cheques were paid, the cheques which Mr Reid issued for the rent of the sublease were handed over by Ms Wilkie to Mr Constantine. The evidence does not make it clear whether Mr Reid's cheques were drawn in favour of Mr Constanie's company or were endorsed by Ms Wilkie. The last cheque paid by Ms Wilkie for her own rent appears to have been paid in July 2001. Her involvement with the land thereafter is not entirely clear. It appears that Ms Wilkie is still carrying on her business on a small part of the premises, which is outside the land the subject of the sub-lease. In July 2001, Mr Constantine instituted proceedings seeking possession of the land the subject of the sub-lease. The statement of claim alleged that Mr Reid and Graveyard Recycling were in occupation of that land and that the sub-lease had been granted without Mr Constantine's approval in breach of cl 10 of the lease. At the time of the trial, those proceedings had not been concluded.
57 On the evidence accepted by the trial Judge, Ms Wilkie's involvement with the unlawful use of the land was that she was the sub-lessor of the premises and had the capacity to terminate the sublease but failed to do so. By the time of the trial, she was not receiving rent for or paying rent for that land.
58 The trial Judge held that Ms Wilkie's position was analogous to that of an owner of land. Her Honour remarked that there was no relevant difference between the position of an owner of land who permits and suffers a breach of the EPA Act and that of a person in the position of Ms Wilkie who controlled the site as sub-lessor.
59 However, Ms Wilkie was not the owner of the premises and she was not involved in the dumping of material on the land. She had granted a sub-lease which authorised the use of the land for a lawful purpose. Ms Wilkie did not occupy and she was not in control of the land which Mr Reid and Graveyard Recycling used. See, eg, WD & HO Wills (Australia) Ltd v State Rail Authority of New South Wales (1998) 43 NSWLR 338.
60 The terms used by her Honour, "permitted or suffered" and "permitting or allowing" describe no category of activity which, absent the use of the expression in a statute, an instrument or a covenant, is known to the law as giving rise to an obligation to remedy a breach. The terms are not wide enough to describe a situation of "aiding or abetting" or of "involvement in the contravention" even if these terms applied to s 124, which they do not. The terms may well have relevance to the exercise of discretion once a breach by the person was established. But they do not authorise the making of an order of rectification against Ms Wilkie who did not breach the EPA Act and did not benefit from the breach.
61 In the field of nuisance, express authorisation has been held to attract liability. See Blackburn J in Harris v James (1876) 45 LJ QB 545. This limited principle was discussed by Penncuick VC in Smith v Scott [1973] Ch 314, where his Lordship said at 321:
"It is established beyond question that the person to be sued in nuisance is the occupier of the property from which the nuisance emanates. In general, a landlord is not liable for nuisance committed by his tenant, but to this rule there is, so far as now in point, one recognised exception, namely that the landlord is liable if he has authorised his tenant to commit the nuisance: Harris v James (1876) 35 LT 240. But this exception has, in the reported cases, been rigidly confined to circumstances in which the nuisance has either been expressly authorised or is certain to result from the purposes for which the property is let: Rich v Basterfield (1847) 4 CB 783 and Ayers v Hanson , Stanley & Prince (1912) 56 SJ 735; and see generally Clerk and Lindsell on Torts , 13th ed. (1969), p 805, para. 1426; Salmond on the Law of Torts , 15th ed. (1969), p 89 and Winfield and Jolowicz on Tort , 9th ed. (1971), p 348. I have used the word 'certain,' but 'certainty' is obviously a very difficult matter to establish. It may be that, as one of the textbooks suggests, the proper test in this connection is 'virtual certainty' which is another way of saying a very high degree of probability, but the authorities are not, I venture to think, altogether satisfactory in this respect. Whatever the precise test may be, it would, I think, be impossible to apply the exception to the present case. The exception is squarely based in the reported cases on express or implied authority: see in particular the judgment of Blackburn J in Harris v James , 35 LT 240, 241. The exception is not based on cause and probable result, apart from express or implied authority. In the present case, the corporation let no 25 Walpole Road to the Scotts as a dwelling house on conditions of tenancy which expressly prohibited the committing of a nuisance, and, notwithstanding that the corporation knew the Scotts were likely to cause a nuisance, I do not think it is legitimate to say that the corporation impliedly authorised the nuisance."
62 In the present case, it was not found that Ms Wilkie expressly authorised the mountain of rubbish or even that the rubbish was a nuisance. The case was not put on that basis.
63 In Wright and Romeyko v Corporation of City of West Torrent (1996) 91 LGERA 197, an owner who had leased land was held liable to comply with a notice from the Municipal Authority which required her to remedy breaches of a planning authorisation by ceasing the unlawful use. Debelle J, with whom Cox J and Matheson J agreed, gave the principal judgment. However, the case turned upon the express terms of the Development Act 1993 (SA). Section 4 of the Development Act defined the expression "to undertake development" to mean:
"to commence or proceed with development or to cause, suffer or permit development to be commenced or to proceed." (emphasis added)
64 In Rochford Rural District Council v Port of London Authority [1914] 2 KB 916 also, the issue concerned a statutory provision which contained the words "caused or suffered".
65 Such cases do not assist the resolution of the ambit of s 124 of the EPA Act, which contains no such words. The many cases, of which Barton v Reed [1932] 1 Ch 362 is one, which have considered covenants containing the terms "permit" or suffer", are similarly of no assistance. Indeed, they point to the need for the expression of such a term if liability based on permitting or suffering is to be established.
66 In my opinion, as s 124 contains no such terms, the basis on which her Honour proceeded was unsound.
67 The order for rectification directed to Ms Wilkie should therefore be set aside.
68 Ms Wilkie also appealed against her Honour's dismissal of the claim against Mario Constantine. Her standing to make such a claim was dependent upon there being mutual liabilities such that she could claim contribution from Mr Constantine. As Ms Wilkie has succeeded in her appeal against the Council, she does not have standing to challenge the dismissal of the Council's claim against Mr Constantine.
69 For these reasons I would allow the appeal. I would order that her Honour's orders be varied by omitting order (6). I would order that order (8) be varied by omitting the reference to "The First Respondent". I would order that the Blacktown City Council pay the costs of Ms Wilkie of the trial. I would order that the Blacktown City Council pay the costs of Ms Wilkie of the appeal. I would order that Ms Wilkie pay the costs of Mario Constantine of the appeal, such costs to be included in the costs payable to her by the Blacktown City Council.
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