Willis v Ku-Ring-Gai Municipal Council

Court of Appeal (NSW)|2005-02-09|Before: Handley JA, Hodgson JA, Santow JA, Cowdroy J

CITATION: Cohen & Anor. v. Wyong Shire Council [2005] NSWCA 46

JUDGMENT OF: Handley JA at 1; Hodgson JA at 2; Santow JA at 47

DECISION: 1. Appeal allowed to the extent of substituting for the costs made by the primary judge an order that the appellants pay one-half the Council's costs of the proceedings, and otherwise dismissed. 2. Each side to bear its own costs of the appeal.

Bertram v. Warringah Shire Council (1990) 72 LGRA 39 Doyle v. Newcastle City Council (1990) 71 LGRA 55 Gee v. Port Stephens Council [2003] NSWLEC 260 House v. The King (1936) 55 CLR 499 CASES CITED: Parker v. DPP (1992) 28 NSWLR 282 Quarries Ltd. v. Federal Commissioner of Taxation (1961) 106 CLR 310 Warringah Shire Council v. Sedevcic (1987) 10 NSWLR 335 Willis v Ku-Ring-Gai Municipal Council (1992) 75 LGRA 308

Phillip Lawrence Cohen - 1st appellant PARTIES: Jennifer Anne Cohen - 2nd appellant Wyong Shire Council - respondent

Appellants in person COUNSEL: Ms. Duggan with Ms. Carpenter for respondent

SOLICITORS: Abbott Tout, Sydney for respondent

LOWER COURT JURISDICTION: Land & Environment Court

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40146/04 L&E 41325/03

HANDLEY JA HODGSON JA SANTOW JA

Tuesday 8 March 2005 COHEN & ANOR. V. WYONG SHIRE COUNCIL Judgment 1 HANDLEY JA: I agree with Hodgson JA. 2 HODGSON JA: On 10 February 2004, on the application of the respondent Council, Cowdroy J in the Land & Environment Court made declarations to the effect that the appellants had carried out development on their property 3 Stimsons Lane, Tumbi Umbi, without approval having been obtained, in breach of the Environmental Planning & Assessment Act 1979; and ordered that the appellants have removed from their property within 90 days a green shipping container and a white demountable office structure. He also ordered the appellant to pay the Council's costs of the proceedings. 3 On 11 May 2004, the order from removal was varied to the effect that, if a Notice of Appeal With Appointment was filed in the Court of Appeal by 2 June 2004, the items were to be removed on final determination of the appeal. Such a Notice of Appeal was filed on 1 June 2004. 4 However, when the appeal was heard on 9 February 2005, the Court was told that the items had in fact been removed, so that the only live issue on the appeal was the question of costs.

CIRCUMSTANCES 5 The subject property is a corner block, very roughly rectangular in shape, over 75 metres wide and over 110 metres deep, with a two-storey brick cottage located in about the centre of it. The appellant completed the purchase of this property on 13 September 2002; and on the same day the demountable office arrived and was placed about 31 metres from the road frontage and about 13.6 metres from the side road. The shipping container arrived on 17 September 2002, and it was placed within sight of the side road. 6 The demountable office was of metal construction with a metal roof, and was 7.2 metres long by 4.8 metres wide. It contained equipment used for the purpose of the first appellant's business as an accountant. It contained desks, chairs, a fax machine, telephones, bookshelves, a whiteboard, filing cabinets, and a bar refrigerator. It was divided into two rooms. It rested on concrete block-work piers. Electricity was connected to the office, but it was not connected to a water supply. 7 The green shipping container was made of metal. It was used for the purpose of storage of both domestic and household goods, tax records and other financial data, which the first appellant had accumulated in the course of his practice as an accountant. 8 On 19 September 2002, a Council officer Anthony McGuire caused a letter to be forwarded to the appellants requiring removal of these items; and on 3 December 2002, the Council issued an order requiring their removal. 9 On 28 January 2003, the appellants commenced Class 1 proceedings in the Land & Environment Court appealing against this order. On 5 August 2003, the order was withdrawn and the Class 1 proceedings dismissed. 10 On 4 November 2003, the proceedings in which the primary judge made the orders appealed against were commenced. The primary issue in the proceedings was whether development consent was required in relation to these two items. However, the defence of the appellants also contended that the orders sought by the Council should not be made as a matter of discretion, and that matter was also advanced in the appellants' written submissions.

RELEVANT STATUTORY PROVISIONS 11 The subject land is affected by the provisions of the Wyong Local Environmental Plan 1991 (the LEP). Pursuant to that plan, the land is zoned Zone No.7(c) (Scenic Protection: Small Holding Zone). The objectives of that zone are stated as follows: (a) to enable development for the purposes of small rural-residential holdings to be carried out on land which is suitable for those purposes and which is unlikely: (i) to inhibit the potential for urban expansion, particularly at the urban fringe, or (ii) to create a demand for the uneconomic provision of services, or (iii) to detract from the scenic quality of rural lands, and (b) to allow for non-residential uses where those are compatible with rural-residential development and which are unlikely to create an unreasonable demand for public services or substantially reduce existing levels of service. 12 Clause 10 of the LEP is in the following terms: 10(1) The objectives of a zone are set out in the table to this clause under the heading' "Objectives of Zone" appearing in the matter relating to the zone. (2) Except as otherwise provided by this plan, in relation to land within a zone specified in the Table to this clause, the purposes (if any) for which development- (a) may be carried out without development consent; (b) may be carried out only with development consent; and (c) is prohibited, are specified under the headings "Without development consent", "Only with development consent" and "Prohibited", respectively, appearing in the matter relating to the zone. (3) Except as otherwise provided by this plan, the Council must not grant consent to the carrying out of development on land to which this plan applies unless, in the opinion of the Council, the proposed development is compatible with the objectives of the zone within which the development is proposed to be carried out. 13 The purposes for which development in the 7(c) zone may be carried out without development consent are "home occupations"; and the purposes for which development within that zone may be carried out only with development consent are a range of activities including "dwelling houses" and "home businesses". Any other use is prohibited. 14 The terms "home business" and "home occupation" are defined as follows: "home business" means a business, industry, occupation or profession carried on within a dwelling or the curtilage of a dwelling by the permanent residents of the dwelling, which does not involve - (a) interference with the amenity of the locality in which the dwelling is situated by way of pollution or exposure to unsightly matter; (b) the display or sale of goods other than those produced on the premises at which the home business is carried out; (c) the provision of any essential service main of a greater capacity than that already available in the locality; (d) more than one person other than the permanent residents of the dwelling being employed; (e) the generation of traffic or a carparking demand, which would adversely affect the amenity of the locality; or (f) the exhibition of any advertisement or sign other than one exhibited on the dwelling or within the curtilage of the dwelling to indicate the name and occupation of the resident and which would fit within a rectangular figure 0.8 metres in length and 0.4 metres in breadth;

"home occupation" means the use of a dwelling or the curtilage of a dwelling by the permanent residents of the dwelling for the purposes of an office or business, which does not involve - (a) the registration of the building under the Factories, Shops and Industries Act, 1962; (b) interference with the amenity of adjoining properties or the locality in which the dwelling is situated; (c) the display or sale of goods other than those produced on the premises at which the home occupation is carried out; (d) the provision of any essential service main of a greater capacity than that already available in the locality; (e) the generation of traffic or a carparking demand which would adversely affect the amenity of the locality; (f) persons other than the permanent residents of the dwelling being employed in that use; (g) the exhibition of any advertisement or sign, other than one exhibited on the dwelling or within the curtilage of the dwelling to indicate the name and occupation of the resident and which would fit within a rectangular figure 0.8 metres in length and 0.4 metres in breadth; or (h) the exposure to view from any adjacent properties of any unsightly matter, or any raw, material, equipment, machinery, product or stored finished goods; 15 The Environmental Planning & Assessment Act (EPA Act) contains, in s.4(1), definitions of "development" and "building", as follows: development (a) the use of land, and (b) the subdivision of land, and (c) the erection of a building, and (d) the carrying out of a work, and (e) the demolition of a building or work, and (f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument, (g) but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.

building includes part of a building and any structure or part of a structure, but does not include: (a) a manufactured home, a moveable dwelling or associated structure or part of a manufactured home, a moveable dwelling or associated structure, or (b) a temporary structure within the meaning of the Local Government Act 1993. 16 Section 4(2)(b) of the EPA Act provides: A reference in this Act to: … (b) the erection of a building includes a reference to: (i) the re-building of, the making of alterations to, or the enlargement or extension of, a building, or (ii) the placing or re-locating of a building on land …

The remaining subsections are not relevant for present purposes. 17 The Local Government Act 1993 (the LG Act) contains a definition of "temporary structure" in the Dictionary to that Act as follows: temporary structure includes: (a) a booth, tent or other temporary enclosure, whether or not a part of the booth, tent or enclosure is permanent, and (b) a mobile structure. 18 Section 68(1) of the LG Act is in the following terms: 68 What activities, generally, require the approval of the council? (1) A person may carry out an activity specified in the following Table only with the prior approval of the council, except in so far as this Act, the regulations or a local policy adopted under Part 3 allows the activity to be carried out without that approval.

Included in Part A of the Table is the following: "Install a temporary structure on land". Amendments to this provision enacted in Local Government & Environmental Planning & Assessment Amendment (Transfer of Functions) Act 2001 have not yet commenced.

DECISION OF PRIMARY JUDGE 19 The primary judge found that the office was a building, and that container was a structure and therefore a building. He rejected the appellants' submissions that these items were excluded from the definition of "building" because they were temporary structures; and that placing the structures on the property was no more than using the land for "home occupations", which was permitted without the obtaining of development consent. 20 On the matter of discretion, he said this: 27 The Court now turns to the question of discretion. The office and the container have been located on the site since at least 19 February 2002. The order issued by council was issued on or about 3 December 2002. The proceedings in class 1 of this jurisdiction were in some way resolved in August when the class 1 proceedings were withdrawn and the order was withdrawn. The respondents had not been prepared to remove the structures from the land, nor to make a development application. Mr Cohen has said that he would like to keep the office and the container for a period of up to two years.

28 In accordance with the principles contained in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, the Court must weigh the various competing interests of the parties. A breach of the EP&A Act exists and there is evidence that the existing structures are unsightly. To permit them to remain would result in an advantage to the respondents over other residents in the area and to the detriment of the environment. Accordingly the Court considers that there is no reason for the orders not to be made.

29 The council suggests that a period of twenty-eight days be allowed for the structures to be removed. Bearing in mind they have been present on the site for over twelve months, twenty-eight days seems a short period in which to permit their removal. However, the Court considers that the structures should be removed within a period of ninety days from today's date.

GROUNDS OF APPEAL 21 The appellants rely on the following grounds of appeal: 1. The learned trial judge erred in finding that the "shipping container" was a "building" as the term is defined in s.4(1) of the Environmental Planning and Assessment Act.

The learned trial judge erred in finding that the "metal clad office structure" was a "building" as the term is defined in s. 4(1) of the Environmental Planning and Assessment Act.

In making the finding that the "metal clad office structure" was a "building", the learned trial judge: (i) Relied upon a finding of fact, namely "it relies for its support upon piers set into the ground" which was contrary to the express uncontradicted evidence in the Applicant's case; (ii) Made a finding which was against the weight of evidence as to the nature of the "metal clad office structure".

The learned trial judge erred in finding that the "shipping container" was not a "temporary structure" as defined in the Local Government Act.

The learned trial judge erred in finding that the "metal clad office structure" was not a "temporary structure" as defined in the Local Government Act.

The learned trial judge erred by his failure to consider the Applicants' submission that the structures the subject of the proceedings were ancillary to a "home occupation" and therefore did not require development consent.

Alternatively to (6), the learned trial judge erred in finding that "home occupation" relates entirely to use and does not exempt a person from obtaining the relevant consents for the purposes of erection of buildings.

The learned trial judge erred in the exercise of the Court's discretion to refuse the making of the injunction sought by the Applicants in the proceedings and accordingly the discretion miscarried.

The learned trial judge erred in failing to accord the Appellants natural justice and procedural fairness by denying the Appellants the right to cross-examine the Respondent's evidence but relied on such evidence.

The learned trial judge erred in failing to accord the Appellants natural justice and procedural fairness by his failure to clearly bring to the notice of the parties considerations of importance so that a fair opportunity was presented for the Appellants to persuade him to a different view. 22 The Council has put on a Notice of Contention containing the following ground: The respondent contends that if the Court of Appeal determines, contrary to the decision of his Honour Justice Cowdroy, the trial judge, that the placement of the metal clad office structure and/or the placement of the shipping container did not constitute the erection of a building or buildings within the meaning of the Environmental Planning and Assessment Act 1979 on the basis that metal clad office structure and/or the shipping container was a "temporary structure" within the meaning of the Local Government Act 1993, the decision of Justice Cowdroy would be affirmed on the ground that the placement of such "temporary structure" occurred without the necessary prior approval of the respondent under s68 of the Local Government Act and is therefore in breach of that Act. 23 I will consider the question of whether there were breaches of the EPA Act, and then consider the questions of discretion and costs. For reasons that will be apparent, the grounds of appeal concerning procedural fairness can affect only the questions of discretion and costs.

BREACHES OF THE ACT Submissions 24 The appellants were unrepresented on this appeal. Mr. Cohen, the first appellant, submitted that the two items were neither buildings nor structures, and were not fixtures. He submitted that the primary judge had made an error of fact, in finding that the office was a building, in an assertion that the office relied for its support "upon piers set into the ground", whereas in fact the piers merely rested on the ground. He submitted further that the items fell within exceptions to the definition of "building", and that they had not been "erected".

Decision 25 In order that an item be a building or a structure, it does not need to be a fixture, although if it is a fixture, this may be a matter which lends factual support to a conclusion that it is a building or structure. 26 In my opinion, the demountable office is without question a building, even though it is only resting on the ground. The error by the primary judge, in referring to piers set into the ground, was immaterial; and his reasons on this aspect of the case are otherwise correct. 27 As noted above, s.4(2)(b) of the EPA Act provides that a reference in the Act to "the erection of a building" includes a reference to "the placing … of a building on land". Accordingly, if each of these items was a building, there was in each case the erection of a building. 28 The question whether the container was a building is less clear. However, by reason of its size, use and placement, it was in my opinion clearly open to the primary judge to find that, in the circumstances, it was a structure and therefore a building; and no error is disclosed in his reasons. 29 As regards the exceptions in the definition of "building", the only exception possibly applicable is the exception of "a temporary structure within the meaning of the Local Government Act 1993". The relevant definition, set out above, is an inclusive definition; and so the items in question could be temporary structures within the meaning of the LG Act either by reason of the ordinary meaning of the words "temporary structure" or by falling within paragraph (a) or paragraph (b) of the definition. Paragraph (a) clearly has no application. 30 The question whether these items are "temporary structures" in the ordinary meaning of those words, or "mobile structures", is to my mind not an easy one. The primary judge found that they were not fitted with wheels and were not readily moveable, and these findings are unexceptionable; but they are not conclusive. The question addressed by Taylor J in Quarries Limited v. Federal Commissioner of Taxation (1961) 106 CLR 310 was a different question, namely whether certain sleeping units were "plant"; but the comments he made, especially at 316, about these units, which were like the demountable office in this case in that they were moveable with the aid of a mobile crane and semi-trailer, suggest that he may well have considered them as temporary structures. 31 However, if these items were temporary structures within the meaning of the LG Act, so that consent was not required under the EPA Act, consent for their installation was required by s.68 of the LG Act and was not obtained. In circumstances where there is now no live issue about the orders for removal, in my opinion it is not necessary to determine which of these two Acts was breached, and it is preferable to leave determination of this difficult issue to a case where it is necessary to decide it. It is sufficient to say that one or other Act was breached, so that, subject to the question of discretion, the orders made below were justified. 32 Finally, in my opinion, the circumstance that the use of the structures could be considered as "home occupations", and thus as not requiring development consent, does not obviate the need for consents in relation to the erection of buildings or the installation of temporary structures.

DISCRETION AND COSTS 33 During the hearing below, Mr. Cohen initially sought to cross-examine Council officers who had given evidence. However, the primary judge asked what the defence was, and Mr. Cohen said it was that there was no requirement to lodge a development application for the shipping container or the office building; and the primary judge put to Mr. Cohen that it would not assist in those defences to ask questions of the witnesses. Mr. Cohen acceded to that suggestion and did not pursue his request to cross-examine. 34 The primary judge's comment was plainly correct in so far as the appellants' defence related to breaches of the legislation; but it appears that at the stage of this exchange both the primary judge and Mr. Cohen overlooked questions of discretion, although this was included in the Defence and in written submissions provided by the appellants, notably the following: 19. May have made a mistake - wanted to correct it - wasn't allowed. … 22. Should the Court make such orders, could such orders be stayed to give the Respondents an opportunity to submit a Building Application and/or Development Application. 35 I note also that, in dealing with discretion, the primary judge said that the appellants had not been prepared to make a development application. However, there was in evidence a letter from Mr. McGuire to the appellants dated 3 December 2002 asserting a decision by the Council "that the issues raised did not warrant the Council to invite a development application for the unauthorised structure or to allow the shipping container to remain". There was also evidence by Mr. Cohen that on 6 January 2003, Mr. Rod Dorn, Mr. McGuire's supervisor, said he would speak to the EP section of the Council to see whether they would let the appellants lodge a development application; and that Mr. Dorn rang back shortly afterwards and said he had spoken to "the people in the office and they will not look at any application from you". Mr. Dorn put on an affidavit denying that he said those words; but he did not deny telephoning Mr. Cohen or say what he did say if he did so.

Submissions 36 Mr. Cohen submitted that the failure to allow cross-examination was a denial of procedural fairness, as also was the fact that during submissions the primary judge did not give any indication how he was thinking; and he referred to Parker v. DPP (1992) 28 NSWLR 282. He also submitted that the result of exercise of discretion was so unacceptable that it must have involved error. On costs, he made the further submission that, had the Council not withdrawn its order, the matter would have been determined in Class 1 proceedings in which the practice was not to award costs. 37 Ms. Duggan for the Council referred to House v. The King (1936) 55 CLR 499 at 504-5, and Warringah Shire Council v. Sedevcic (1987) 10 NSWLR 335 at 341, and she submitted that the appellants had abandoned any claim to cross-examine. 38 Ms. Duggan submitted that, if and in so far as the Council did indicate to the appellants that it would be pointless to lodge a development application, the Council was correct because the placing or installation of these structures would involve a purpose for which the development was prohibited, being not either "home occupations" or "home businesses" or "dwelling houses". She also submitted that the appellants had not given evidence before the primary judge that they intended to have the items on their land only temporarily until they had made extensions to their house for which they intended to seek consent, or that they would have applied for consent to have them on the land temporarily if this had not been foreclosed by the Council. And she submitted that, since the appellants had relied on a contention that development consent was not required, the Council was in any event entitled to costs and would have been entitled to the costs of Class 1 proceedings: see Gee v. Port Stephens Council [2003] NSWLEC 260, 113 LGERA 325 at [60]. In any event, she submitted, it was reasonable for the Council to withdraw the order and to pursue the Class 4 proceedings, because even if the Council had succeeded in the Class 1 proceedings, it would have needed Class 4 proceedings to enforce removal of the items.

Decision 39 In my opinion in this case there are circumstances which, despite the principle stated in House v. The King and Sedevcic, make it appropriate for this Court to address the question of costs, and the question of discretion to the extent that it relates to the question of costs. 40 The written submissions of the appellants before the primary judge, set out above, make it clear that they were contending that, if the Council had not foreclosed the matter, they would have put on an application with a view to remedying any illegality involved in their placing the items on their property. Although this was not squarely asserted in Mr. Cohen's affidavit, in my opinion it could have been inferred from what Mr. Cohen said about his conversations with Mr. Dorn. In so far as there was a conflict in the evidence arising from Mr. Dorn's denial that he said the words attributed to him, the primary judge would have been in some difficulty in attempting to resolve this conflict, by reason of the lack of cross-examination, and in fact he did not purport to do so. In the circumstances, the primary judge's assertion that the appellants had not been prepared to lodge a development application was not adequately supported by the evidence or by the judge's reasons. 41 It can also be said that there was an inadvertent denial of procedural fairness arising from the circumstances in which Mr. Cohen withdrew his application to cross-examine. At the time of the exchange that led to this withdrawal, it is apparent that neither the primary judge nor Mr. Cohen adverted to the issue of discretion raised by the pleadings, the evidence and the appellants' written submissions, to which cross-examination could have been relevant, inter alia in resolving the conflict between Mr. Cohen and Mr. Dorn. Had Mr. Cohen then been reminded that there was this issue of discretion, he may well not have withdrawn his application to cross-examine. 42 Ms. Duggan submitted that these matters could not affect the costs order, because the Council had been correct in any event to foreclose such an application, and because the appellants' case below fell far short of what could have disentitled the Council to costs. 43 The question whether the placing of these items would have involved a prohibited use does not arise directly in these proceedings, and I think it preferable not to purport to finally decide it. However, I have a strong prima facie view that, at least if such items were placed sufficiently close to the house, their use by Mr. Cohen in his accountancy practice would be a home occupation or home business within the definitions in the LEP. I do not think that the circumstance that, at least until the items were placed there, there were no out-buildings such as might have increased the extent of the curtilage of the house, precludes this view: cf. Doyle v. Newcastle City Council (1990) 71 LGRA 55, Bertram v. Warringah Shire Council (1990) 72 LGRA 39. I do not think Willis v. Ku-Ring-Gai Municipal Council (1992) 75 LGRA 308 counts against this view. 44 The question whether the appellants could have succeeded below on costs but for the problems I have identified cannot be definitively resolved by this Court. We cannot know what the result of cross-examination would have been. It might possibly have opened the way for a submission that the proceedings arose because the Council did not permit another course of action that would have resolved the problem. On the other hand, there is force in Ms. Duggan's submissions that Mr. Cohen's own evidence fell short of making out such a case, and that because the appellants both denied breaches of the legislation and resisted the orders, the Council was in any event entitled to costs. Having regard to what was said in Gee and the possible need for Class 4 proceedings in any event, I do not think that the Council's withdrawal of the order has a significant bearing on costs. 45 On the whole, I think the appropriate course is to recognise that the appellants did not have full consideration of their discretionary case below, by substituting, for the costs order made by the primary judge, an order that the appellants pay one half the Council's costs of the proceedings, and recognising the appellants' limited success in the appeal by ordering that each side bear their own costs of the appeal.

ORDERS 46 Accordingly, I propose the following orders: 1. Appeal allowed to the extent of substituting for the costs made by the primary judge an order that the appellants pay one-half the Council's costs of the proceedings, and otherwise dismissed. 2. Each side to bear its own costs of the appeal. 47 SANTOW JA: I agree with Hodgson JA. **********

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