TOUMA v GERTOS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER, COLE JJA and ABADEE AJA 9, 19 September 1996 [1996] NSWCA 535 APPEAL from Land & Environment Court — issue not raised in court below — not permitted to be raised on appeal — no error demonstrated in finding of fact of ancillary use — appeal dismissed. Sheller JA I agree with Cole JA. Cole J The appellant is the owner of No. 48 Bayview Avenue, Earlwood. The respondents own No. 46. Prior to 23 June 1994 the respondents caused there to be removed from portion of their property rubbish comprising car bodies, fridges, sanitation garbage and the like which was giving off unacceptable odour. The clearing was also designed to provide bush fire protection from fires along Wolli Creek which had in the 1994 bush fires threatened residential premises. Once the rubbish was removed, large amounts of fill were placed on the land. That fill overflowed on to the appellant's land. Talbot J found that the fill "extends over an area in excess of 600m2 comprising 1134m3 at an average depth of 1.8 metres". This work was carried out without any Council consent, and by means of unapproved access across No. 48 Bayview Avenue. The works were not known to the appellant, an absentee owner, until 22 June 1994. On 22 June 1994 stop work orders were issued by the Council. On 30 June 1994 the respondents' lodged a development application with the Council. The application was not in evidence. However on 4 July 1994 the appellant commenced proceedings in the Land & Environment Court seeking a declaration that "the erection of the land fill platform carried out upon 46 Bayview Avenue, Earlwood is building work that requires development approval or building approval or both from the Canterbury Municipal Council, which approval has not been given". It also sought" an injunction restraining the respondents from further development or building works being carried out at 46 Bayview unless and until further order", and an order that the respondents remove all land fill from 46 Bayview Avenue and from the applicant's property at 48 Bayview Avenue Earlwood with as little disturbance as possible to 46 and 48 Bayview". It sought orders for restoration and reinstatement of numbers 46 and 48 Bayview Avenue to their natural contours and levels, a replanting of bushland, restoration of fences, and an order indemnifying the appellant for all of his losses. On 23 December 1994 the appellant filed an amended application which sought declarations that the respondents had carried out development being "the placement of fill upon land situate at and known as 46 Bayview Avenue, Earlwood without the consent of the Council of the Municipality of Canterbury first had and obtained", and a declaration that they had carried out such development in breach of the provisions of the Environmental Planning & Assessment Act 1979 (as amended). The amended application continued to seek the remaining orders to which I have referred. 2 UNREPORTED JUDGMENTS On 15 February 1995 Canterbury City Council issued a notice of determination of development application in respect of the property 46 Bayview Avenue Earlwood. It described the development as "land fill". It approved the application subject to conditions aimed at ensuring that the fill already placed was not contaminated and had been placed and compacted in accordance with the requirements of a practising engineer. Condition 4 and 5 required that the activity be conducted "so that it causes no interference to the existing and future amenity of the adjoining occupations and the neighbourhood in general" and "all cut and fill being confined to within the boundaries neighbourhood in general" and "all cut and fill being confined to within the boundaries of the subject property.". of the subject property.". The proceedings commenced by the appellant in the. Land & Environment Court came on for hearing on 1 March 1995. The relief sought in the original application and the amended application was no longer pressed. The only issue pressed by the appellant related to the removal of the fill which encroached onto No.48 Bayview Avenue from that property. The respondents had since June 1994 offered to remove fill from the appellant's property, but had declined to remove fill from their own property. Thus the only issue at the hearing before Talbot J related to removal of the fill on No. 48 Bayview Avenue. It was the contention of the respondents that the Land & Environment Court had no jurisdiction to make an order for the removal of fill from No.48. That was because they contended that, although development consent had been applied for and been granted, development approval to place the fill on No.46 was not required as the placement was ancillary to use of the land for the purposes of a dwelling house, and that use was permissible without consent. Thus it was argued that the Land & Environment Court had jurisdiction to make an order for removal of the fill from No.48 only if it had jurisdiction flowing from breach of the Environmental Planning & Assessment Act. The argument was that as consent to place fill on No.46 was ancillary to a use permitted without consent, the spilling of fill onto the adjoining No.48 was ancillary to that legal use. There being no breach of the Act, the court had no jurisdiction to make the orders sought. The respondents accepted that, if consent was required, it had not been obtained at the time when the works were carried out and there was jurisdiction to make the order for removal of fill from No.48, but resisted the making of any mandatory order upon the basis that the respondents had, in the past, sought to remove the fill from No.48 but the appellants had denied them the opportunity to do so. Accordingly Talbot J addressed what he called the jurisdiction question stating the issue as follows: The issue is now narrowed to a claim for a declaration that fill on No.48 has been placed there illegally without consent and an order that it should be removed." there illegally without consent and an order that it should be removed. Talbot J upheld the respondent's submissions. He noted that No.46 was zoned Residential A and thus dwelling houses were a use permitted without consent. He noted the undisputed evidence of Mr Gertos that his purpose in carrying out the works was to remove the stench from the fill and give some protection from bush fires. He also noted the appellant's contention that the works performed should be regarded as "a separate development standing on its own from any other and should be regarded independently as a cut and fill work", and further that "the character and extent of the development is such that, irrespective of the intention of the respondent, the use was for a purpose other than a dwelling house and could not be regarded as ancillary". And he noted the respondents' argument that URJ TOUMA v GERTOS (Cole J) 3 "unless the Court forms the view that the encroachment was overt and deliberate for a purpose other than the dwelling house, the respondent is entitled to have the application dismissed". The question facing his Honour was thus whether the work performed was ancillary to use of the land for a dwelling house purposes, or whether it should, because of its nature and extent, be regarded as a separate development. If it was the latter consent would be required, and not having been obtained, the court had jurisdiction. As Talbot J put it: The question is, whether as a matter of fact and degree the fill which encroaches onto No. 48 is such that it should be regarded as a work or development in its own right separate and distinct from the use or purpose of the dwelling house at No.46. His Honour recognised that works could have a double character as being both ancillary works and a separate development. Immediately before giving his conclusions, Talbot J noted not just the possible double character of works, and the notion of ancillary usage, but also the contention of the appellant that the cut and fill work should be regarded as a separate and distinct use, characterised in that way because "regard should primarily be had to the objective attributes of the activity in question". His Honour then concluded: In the circumstances I am satisfied that the placing of the fill on No.46 was ancillary to the use of that land for the purpose of a dwelling house. Further I am persuaded that the use of that land for the purpose of a dwelling house. Further I am persuaded that the encroachment on to No.48 occurred as a direct consequence of that work. His Honour found "there is no separate and distinct purpose for the carrying out of the fill operation on No.48". Thus the work carried out on No.46 was not contrary to the provisions of the Canterbury Planning Scheme Ordinance, and consent was not required to carry put the works. Accordingly, whilst the court had jurisdiction under s.20 of the Land & Environment Court Act to determine those questions, and the appellant had standing pursuant to s.124 of the Environmental Planning & Assessment Act, the Court had no statutory power to make the order for removal of fill from No.48 as there had been no breach of the Environmental Planning & Assessment Act." On appeal, Mr Hemmings QC, for the appellant, noted that the front part of the land in each of numbers 46 and 48 was zoned Residential 2A, but that the rear section was reserved under the Canterbury Planning Scheme Ordinance for "new county roads and widening of existing county roads". Pursuant to clause 13(2) of the ordinance land fill works in land so zoned was permissible only upon certain conditions, and with the consent of both the responsible authority and the Commissioner for Main Roads. He contended that by considering various pieces of evidence before Talbot J one could deduce that the land in fact filled extended into the land reserved for county roads. Thus he argued that consent was required but had not been obtained prior to performance of the works and thus there was a breach of the Environmental Planning & Protection Act and thus jurisdiction was conferred upon the Land & Environment Court. That argument was not advanced in the court below. When the relevant extract of the zoning provisions was tendered, Talbot J asked: Is the fill in that zone or is it all in the 2A zone? 4 UNREPORTED JUDGMENTS Counsel for the appellant said he could not answer that question. Further, Talbot J noted that if the land was in fact zoned 8(a) and so reserved for county roads, the consent of the Commissioner for Main Roads would be required. Accordingly his Honour asked whether that consent had been obtained, and was informed by counsel for the appellant that the consent given by Council "did not purport to have" the Commissioner's consent. His Honour then asked whether the appellant challenged the validity of the consent given by Council and was told that he did not. That consent could be valid if the fill operations extended into the land reserved for county roads only if the Commissioner had given his approval. Thereafter no submissions were put by any party concerning whether in fact the land fill extended into the reserved land. His Honour did not address that issue and made no findings regarding it. Whilst this Court was invited to itself determine that it did so extend, in my opinion it should not do so. That is so for at least two reasons. First, the matter was not litigated in the court below in circumstances where the issue to be determined in the proceedings was narrowed to the issue of jurisdiction which depended upon the requirement for consent. If the appellant wished to contend that consent was required because the activities extended into the reserved land zoning, it should have put that case. Evidence would have permitted a finding to be made whether it did or did not!. Second, the evidence before this Court is by no means clear. It was not accepted by Mr McClellan QC, counsel for the respondents, that the evidence disclosed that the fill extended into the land reserved for county roads. In those circumstances it is not appropriate that this Court determine that question of fact when it was available to be determined in the court below but was not raised as an issue. The second issue of substance argued by Mr Hemmings QC was that his Honour erred in holding that the placing of the fill on No.46 was use of the land for a purpose ancillary to its use as a dwelling house, and the encroachment of fill onto No.48 was a direct consequence of that work. It was contended that his Honour had applied a subjective rather than an objective test in determining the issue whether the placing of the fill was an ancillary use. Reference was made to the decision of Cripps J, when Chief Judge, in Doyle v Newcastle City Council2. The only basis upon which it was said a subjective rather than an objective test had been applied was because his Honour noted the undisputed evidence of Mr Gertos stating the reason why he carried out the work. That is not a sufficient reason for holding that the wrong test was applied, particularly where Talbot J noted the objective test immediately before giving his findings, and commenced his judgment by noting the extent of the area filled. In my opinion it has not been established that Talbot J applied any incorrect test in determining the issue whether the placing of the fill was an ancillary use. Although others may have reached a different conclusion concerning whether placing of fill of this quantity was an ancillary use, no error has been established sufficient to justify this Court in disturbing Talbot J's finding. The spillage of fill onto No. 48 was subsidiary to the ancillary use and thus could not be regarded as itself a No. 48 was subsidiary to the ancillary use and thus could not be regarded as itself a separate development requiring consent. 1. See Coulton v Holcombe (1986) 162 CLR | at 7-8; Water Board v Moustakas (1988) 62 ALJIR 209. 2. (1990) 71 LGRA 55. URJ TOUMA v GERTOS (Abadee AJA) 5 No error having been demonstrated in the judgment of Talbot J, the appeal should be dismissed with costs. Abadee AJA I agree with Cole JA. 5 Appeal dismissed Counsel for the appellant: N A Hemmings QC Counsel for the respondent: P D McClellan QC with J E Robson 10 Solicitor for the appellant: Allen Allen & Hemsley Solicitor for the respondent: Dowe Xenos