The appropriate orders to remedy the breach
62The Council seeks a declaration that the stairway constructed by Mrs Sahade is in breach of the EPA Act. Mrs Sahade does not oppose the making of a declaration, if the Court finds a breach to have occurred.
63The Council also seeks a mandatory injunction ordering Mrs Sahade to remove the stairway. The Council submits that such an order is necessary to remedy the breach of the EPA Act caused by construction of the stairway without prior development consent.
64The Council submits that the breach is not a purely technical breach or one which was unnoticeable other than to a person well versed in planning and environmental law: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339. To the contrary, the Council submits the construction and continued use of the stairway have unacceptable environmental impacts. The Council read affidavit evidence of the residents of Apartment 2, 84 Wolseley Road, Mr and Mrs Bischoff, and of a town planner, Mr Moody, describing the environmental impacts of the stairway, including: increased overlooking and reduction in privacy; reduction in amenity by removal of the previous pencil pine screen, which is not offset by the new pencil pine screen; noise from walking on the timber stairs and from users' voices; and increased difficulty of using the pathway from the landscaped courtyard by reason of the encroachment of the planter box into the pathway.
65The Council submits that the proper process for evaluating these environmental impacts is for Mrs Sahade to lodge a development application seeking development consent for construction and use of the stairway and for the Council as the relevant consent authority to consider such development application. The Court should not preclude this proper process or substitute itself as the consent authority, by exercising its discretion not to grant injunctive relief.
66The Council submits that the injunction sought is necessary to enforce the public duty imposed by the EPA Act not to carry out development which requires development consent without first obtaining such consent. Enforcing this public duty upholds the public interest which exists in the orderly development and use of the environment. Provisions of planning and environmental laws regulating the carrying out of development should be upheld. Unless this is done, private advantage may be won by a particular individual which others cannot enjoy and damage done to the environment which is the purpose of the orderly enforcement of planning and environmental laws to avoid: Sedevcic at [339]-[340].
67The Council noted that it, and not the neighbours, has made the application for enforcement of the law and hence the Court should be less likely to deny injunctive relief: Sedevcic at [340].
68The Council submits that the stairway in this case can be removed readily and without great cost or inconvenience: Sedevcic at [340].
69Mrs Sahade opposed an order requiring removal of the stairway. She read an affidavit of Mr Sahade and tendered an expert report of a town planner, Mr George, contending that the stairway causes minimal environmental impact and that it would cause great inconvenience to Mrs Sahade and her family if the stairway were to be demolished. Mrs Sahade also submits that the Council's arguments as to breach are academic in nature.
70I agree with the Council's submissions and reject Mrs Sahade's submissions.
71Mrs Sahade has won private advantage for herself and her family by constructing the stairway, which involved removing trees comprising the pencil pine screen, without first applying for, and obtaining, development consent under the LEP and the EPA Act. The requirement for prior development consent enables, amongst other objectives, environmental impact assessment of proposed development and orderly development and use of the environment. Mrs Sahade's action undermines these legislative purposes.
72An injunction ordering the removal of the stairway would remedy the breach of the LEP and the EPA Act by putting Mrs Sahade back in the position she should have been in of having to make a development application seeking development consent to construct the stairway. Mrs Sahade can support any such development application with a statement of the environmental impacts of the proposed stairway. The development application and supporting statement can be considered, in the usual way, under the LEP and the EPA Act by the relevant consent authority for such application, the Council.
73The breach of the EPA Act is not merely technical or without environmental impact. The LEP is clear in requiring development consent to carry out development for the purpose of a dwelling house, which is the purpose for which Mrs Sahade constructed the stairway to her residence. The provisions exempting certain types of development from the need for development consent in the SEPP include a clear requirement that the carrying out of exempt development not involve the removal or pruning of trees or other vegetation that requires development consent. In this case, the construction of both the original and modified stairway involved removal of trees that formed the pencil pine screen. This particular requirement of exempt development is part of a suite of provisions in the SEPP for exempt development intended to ensure that development is of minimal environmental impact. The requirement is not merely technical or, as Mrs Sahade submits, academic in nature. It serves to ensure orderly and environmentally acceptable development and use of the environment.
74I do not accept the evidence of Mr Sahade and Mr George that the environmental impacts of the construction and use of the stairway are of such small magnitude as not to make it worthwhile to require the removal of the stairway and the making of a development application for consent to reconstruct the stairway. In my opinion, real issues have been raised by the Council's evidence as to the environmental impacts of the stairway. The degree and acceptability of these impacts, and the balancing of these impacts against the benefits to Mrs Sahade and her family of the stairway, should properly be evaluated by the Council as the relevant consent authority when it considers any development application Mrs Sahade might choose to make to re-construct the stairway in the future.
75I am, therefore, of the view that Mrs Sahade should be ordered to remove the stairway that she was responsible for constructing in breach of the EPA Act.
76During the course of the hearing, Mrs Sahade called evidence from a surveyor, Mr Emery, who opined that the stairway had in fact been constructed on common property and not on Mrs Sahade's lot, Lot 3. This result occurred because of the fact that the garden area of Lot 3 is in fact a stratum with upper and lower boundaries being fixed by reference to the floor area of the residence of 86 Wolseley Road. Because the land rises to the east, at a certain point to the east of the residence, the ground level becomes higher than the upper boundary of the stratum of Lot 3's garden area. Above and to the east of this point, the ground surface becomes common property of the strata plan. A stairway has been constructed in this area where the ground surface is common property.
77According to Mr Emery's expert evidence, therefore, Mrs Sahade has constructed the stairway on common property and not on her land, Lot 3. This would also mean that if the Court were to order Mrs Sahade to remove the stairway, Mrs Sahade would need to seek the permission of the owners' corporation of the strata plan to enter upon the common property and to undertake the works required to remove the stairway.
78After some discussion between the parties and the Court at the hearing, I determined that I should adjourn the further hearing of the proceedings to afford the owners' corporation of the strata plan the opportunity to be heard, including on the question of whether the Court should make an order that Mrs Sahade remove the stairway. The hearing was adjourned to 18 April 2012 for this purpose.
79On 18 April 2012, the Council advised the Court that the owners' corporation of the strata plan had been notified as directed, had called a meeting of lot owners, and had resolved not to apply to intervene or be heard in the proceedings. The Council tendered the minutes of an extraordinary general meeting of the owners' corporation on 10 April 2012 which included the following resolution:
"(a)The letter to the Owners Corporation from Norton Rose dated 20 March 2012 concerning the proceedings between Woollahra Municipal Council and Rita Sahade was tabled.
The Owners Corporation does not wish to be heard in the proceedings, but wishes to record, for such assistance as it may provide to the Court, that:
(i)the Owners Corporation requires the timber staircase erected by Mr and Mrs Sahade to be demolished and removed from site;
(ii)the Owners Corporation requires Mr and Mrs Sahade to reinstate the landscaped screen and the masonry wall consistent with the 1999 development consent;
(iii)the timber staircase was built without prior notice to the Owners Corporation, and without any consent of the Owners Corporation;
(iv)the destruction of landscaping and the masonry wall has affected the privacy and the peaceful enjoyment of Lots 1 and 2;
(v)the use of the staircase and the lighting of the staircase interfere with the peaceful enjoyment of Lots 1 and 2, and the staircase impedes Mrs Bischoff's access to the swimming pool."
80On 18 April 2012, Mrs Sahade also applied by notice of motion for leave of the Court to re-open her case so as to be able to tender the expert report of an arborist, Sir William Home, as to the health and likely growth of the newly planted pencil pines. The Council objected to leave being granted to re-open the evidence. I determined that I should grant leave to Mrs Sahade to re-open her case and I admitted the arborist's report into evidence.
81The arborist's report concluded that the new conifers have adequate soil depth and volume to allow future growth and, if the recommended measures of use of drip irrigation in drier periods and installation of an extra drip line under the stairway, topping up of soil in the garden bed where it settles, application of mulch and organic fertiliser, and application of beneficial fungi and bacteria are undertaken, the new conifers should prove to be a good screening plant in the short term and be part of the long term landscape. Because of the late receipt of this report, the Council was not in a position to call rebutting evidence. However, the Council did cross-examine the arborist as to factors which might inhibit the growth of the conifers in the future.
82Even if this evidence as to the health and likely growth of the newly planted pencil pines were to be accepted, it does not cause me to change my conclusion that, in the exercise of my discretion, injunctive relief should be granted. The factors I have found persuasive in support of granting, rather than denying, injunctive relief to remedy the proven breach remain.
83The arborist's conclusion that the new pencil pines will prove to be a good screening plant may ameliorate some impacts from overlooking from those parts of the stairway where the trees will form an effective screen. However, the new pencil pines will not prevent all environmental impacts. There may still be overlooking from other parts of the stairway, such as from the upper landing. The new pencil pines are located closer to the bedroom and dining room of Apartment 2 than the original pencil pines. There is also the issue of whether the new pencil pine screen is inferior in terms of screening overlooking and in protecting the privacy and amenity of Apartment 2 compared to the original pencil pine screen. The new pencil pines, of course, also do not mitigate the impacts of noise from use of the stairway and users' voices. Hence, I remain of the view that there are real issues as to the environmental impacts of the stairway and the effectiveness and acceptability of the mitigation measures, including the new pencil pine screen.
84I also remain of the view that the environmental impacts of the construction and use of the stairway, and the degree to which the newly planted pencil pines mitigate privacy and amenity impacts, should be considered by the Council as the relevant consent authority when it considers and determines any development application Mrs Sahade might choose to make to re-construct the stairway and any pencil pine screen in the future. I do not consider I should, in the exercise of discretion to grant or decline relief to remedy the proven breach of the EPA Act, substitute my consideration and determination of the acceptability of the environmental impacts and mitigation measures for those of the proper consent authority arrived at in accordance with the proper process for making and considering a development application.
85Furthermore, I consider it is still appropriate to order Mrs Sahade to remove the stairway, even if it be located on common property and not on her lot, Lot 3. The Court has power to order a person who has breached the EPA Act to remedy the breach. Mrs Sahade committed the breach by constructing the stairway on the common property without first obtaining the required development consent. The Court may order her to remedy that breach by removing the stairway from the common property.
86It is a matter for Mrs Sahade to ensure that she obtains any necessary permission of the owners' corporation to remove the stairway so as to comply with the court order. I note that the recent resolution of the owners' corporation requires Mrs Sahade to demolish and remove the stairway and reinstate the original pencil pine screen and masonry wall consistent with development consent DA 558/98. Presumably, therefore, Mrs Sahade should not have difficulty in obtaining permission to undertake these works. However, for caution, I will allow a longer period of time than might otherwise be necessary to remove the stairway so as to permit Mrs Sahade to apply to the owners' corporation for permission to undertake the works on common property. Any risk that Mrs Sahade might be prevented from complying with the court order by the owners' corporation delaying or refusing permission to carry out the required works on the common property can be addressed by reserving liberty for the parties to apply to vary the court order.
87The parties have requested that the Court reserve the question of the costs of the proceedings to enable the parties to consider the judgment before addressing that question. I am prepared to do so.