THOMAS v THE COUNCIL OF THE CITY OF BLUE MOUNTAINS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COLE and BEAZLEY JJA, and DUNFORD AJA 20 February 1997, 20 February 1997 [1997] NSWCA 314 MIS-STATEMENT of issues by trial judge — true issues not addressed — meaning of "work" in s4 Environmental Planning & Assessment Act 1979 Cole JA This is an appeal from a decision of Bannon J delivered on 2 November 1994. The proceedings before his Honour were class 4 proceedings in the Land and Environment Court, in which the Blue Mountains City Council sought the following orders: "1. The respondent be restrained from carrying out, either by himself or his servants or agents, any grading or earthworks in the property known as Lot 2 in Deposited Plan 628112, Corner Wilson Way and Mitchells Pass Road, Blaxland (the 'property') without securing development consent from the applicant. 2. The respondent remove all earth fill and other material graded or otherwise placed by the respondent along the boundary line between the property and the adjoining land owned by Robert Geoffrey Straton and Noelene Dawn Straton and known as Lot 5 in Deposited Plan 787012, Mitchells Pass Road, Blaxland ('the Straton property') in the period from April 1992 to date. 3. The respondent take all action and carry out all works that are required to restore to its level and condition in April 1992 that part of the property, that was the low point of the property in April 1992 (the 'low point of the property'). 4. The respondent remove, from the part of the property adjacent to Mitchells Pass Road, the strip of raised earth put in place by the respondent using his grader, and which prevents the free flow of water to the low point of the property. 5. The respondent not carry out any works that would obstruct the free flow of water across the property to the low point of the property within the prior written consent of the applicant.! The orders sought in the summons are not entirely clear but the gravamen of the complaint which the Council made, as would appear from a fair reading of the orders sought, was that the respondent, David Gordon Thomas, had, without development consent, moved earth or fill or graded material and placed it along a boundary to an adjoining property then owned by Robert Geoffrey Straton and Noelene Dawn Straton during the period from April 1992 to 1994. The orders sought that the work said to have been done constituting the movement of that fill or earth should be undone in the sense that the material placed along the boundary line should be removed and the land owned by Mr Thomas restored to its condition as existing in April 1992. There was evidence called in the Council's case from a Mr Knott and from Mr Straton, as well as evidence from a Mr Mifsud, a council engineer. 1. Appeal Book pp1-2. 2 UNREPORTED JUDGMENTS The evidence of Mr Knott and Mr Straton, if accepted, indicated that on one corner of Mr Thomas's property there had been heaped up by use of a grader certain soil or fill. The dimensions of that heaping up and the embankment so created are given in the evidence At the hearing Mr Thomas also gave evidence and there was much debate regarding what had occurred. Much time was taken in hearing evidence concerning whether or not at least some of the material said to have been heaped up was in truth placed on the land by Mr Thomas at some earlier point of time, whether it had been placed there by the Council or whether it had been placed there by the State Rail Authority. In the light of the proper reading of the summons which sought orders related to movement of earth and fill rather than the bringing onto the land without consent of such earth and fill, those issues would appear to have been irrelevant. A second issue which occupied the time of the Court and was the subject of evidence was whether or not certain channels had been dug on the land by Mr Thomas. Mr Knott and Mr Straton each gave evidence that the respondent, Mr Thomas, had dug what were called the first channel and the second channel. There was also evidence that in a different portion of the land there existed and had existed for many years a drainage easement initially dug either by the Electricity Commission or the Council. There was evidence from the witnesses for the Council that Mr Thomas had dug a channel or channels about eight feet wide and about eight feet deep. Mr Thomas' evidence was that he had not done so but that in relation to the drainage easement previously dug by either the Council or the electricity authority he had, from time to time, cleaned out silt which had blocked it. His evidence was that that was the channel which was eight feet by eight feet. There was in fact no evidence as to the extent or nature of what was described as the first channel and the second channel in the evidence of Mr Knott or Mr Straton. Counsel for the respondent accepted that there was no such evidence before this Court. The question of digging of channels was not a matter which was referred to in the summons, unless it be within para5 of the summons. Absent any evidence relating to the nature and extent of the channels described as the first channel and second channel so dug, it was not possible for the trial judge to determine that the size, nature and extent of those channels constituted a work which required development consent. The trial judge gave an ex tempore judgment and this Court recognises that his Honour was an experienced judge in a specialised jurisdiction. The judgment commences with a reference to the question whether or not the Council had given its consent to the placing of material on the property, by that meaning the importing of material onto the property rather than movement of material existing on the property to another position. It continues with an examination of that topic and then discusses the question of whether there are existing use rights. None of those matters in truth relate to any matter which was in issue. His Honour then stated what he described as the gravamen of the complaint, namely that material had been placed on the boundary between the respondent's property and the property owned by Mr Straton since 1992. However, his Honour then said: URJ THOMAS v THE COUNCIL OF THE CITY OF BLUE MOUNTAINS (Cole JA) 3 "There seems to be no doubt that the material has been placed there but the respondent says it was placed there by the council officers and the material consists of fill which does have some portions of tar and concrete mixed with the fill.2 That harks back to the question of whether fill was imported or not and from whence it came and does not relate to the true subject matter of the summons, namely whether material was moved to the boundary area between the two properties. His Honour stated the matters before him and the issues before him in the following terms: "The issue in the case is whether or not the respondent has fill on his property which has been placed there without the consent of the council and without any development or building approval having been granted for the fill to be there.3 That aspect is not a matter which was the subject of complaint within the summons and is a rnis-statement of the issue before the trial judge. His Honour continued "Furthermore the respondent has dug channels on his land without the consent of the council, one channel being eight feet deep by approximately eight feet wide.4 That is a mix-statement of the evidence, because the evidence made clear that the eight feet by eight feet deep channel related to that originally dug by the Council or the Electricity Commission, not to what were described as the first channel and the second channel which were the subject of the complaints by Messrs Knott and Straton. His Honour then continued "Tn my opinion council has a right to ask him to re-fill those channels and the respondent has not established that the fill material placed on the land was done by or with the consent of the council.5 That appears to be a reference back to the question of importing material with or without consent which was not the subject matter of the summons. His Honour continued: "The respondent was observed moving the fill material with an earth grader towards the boundary fence. The council is entitled to ask that he be stopped from moving and grading earthworks on the land without the council's consent and to require that he remove the fill and other material placed along the boundary of his property and the property owned by Mr Straton in the period April 1992 to date and to fill in the channels that he has dug.® Nowhere in the judgment does his Honour address the question of whether either the channels themselves or their digging or the movement of fill to the positions which I have described adjacent to the boundary of Mr Straton's property constitutes a work within the meaning of s4 of the Environmental Planning and Assessment Act 1979. In s4, development is defined to mean "(b) the carrying out of a work in, on, over or under that land". In s4(2)(c) it is provided that a reference in that Act to a work includes a reference to any physical activity in relation to land that is specified by a regulation to be a work Appeal Book, p 194N-P. Appeal Book, p 3C-F. Appeal Book, p 195F-G Appeal Book, p 195I-K. Appeal Book, p 195K-P. AnNRwWN 4 UNREPORTED JUDGMENTS for the purposes of this Act but does not include a reference to any activity that is specified by a regulation not to be work for the purposes of this Act. Counsel for the Blue Mountains City Council have been unable to find any regulations touching upon that matter. The question of whether an activity carried on land constitutes a work within the meaning of the Act was addressed in relation to the Local Government Act 1919 in the decision Parramatta City Council v Shell Company of Australia Ltd'. Mr Justice Street there said: "The first question involves ultimately considerations of degree. Development in s342T is defined as including 'the erection of any building and the carrying out of any work'. In Parramatta City Council v Brickworks the High Court gave some consideration to the meaning of the word work in a context related but not identical to the context relevant to the present dispute. In the course of his judgment, Justice Gibbs said it may be doubted whether work in its strict dictionary meaning would nowadays include a quarry but like the word works considered in Merry Creek Quarry Pty Ltd v Valetta, work is not of fixed connotation but elastic or indefinite and its meaning must depend on the actual language and context of the statutory provision in question. It is apparent from the context of cl33 that the definition of existing work contained in cl33 of that connotation of the word in cl33 must include something which has been carried out on the land and is situated on land but is not a building or structure. Having regard to the wide meaning of the word structure it is impossible to resist the conclusion that work must be intended to refer to something done to the land itself and it therefore includes a quarry and a mine." His Honour continued "As was pointed out during the course of argument the depositing of filling on land may or may not be of such significance as to be regarded as a work and thus a development within the relevant provision. The building up of a large sports ground or oval could readily and properly be regarded as a work. At the other end of the scale the construction in a private garden of a small earth pocket in which to plant a shrub would not seem to be of such significance as to justify description as a work. In selecting where between these two extremes the present case falls Iam of the view that both the quantity of the filling as well as its significance in relation to the site is of importance. The spreading of 1200 cubic yards of filling or topsoil over a very large area might well not be of such significance as to amount to a work, but the depositing of that quantity in a suburban allotment having the effect of building up the height of that allotment at one corner to a point eight feet six inches above its natural level and the creation of a relatively level surface extending over most of the block of land such as this is in my view a work within the meaning of the Act. I am accordingly of the view that the depositing of this filling amounted to development. As such it could only lawfully have been placed there if the defendant had the requisite authority to carry out such development." That authority has been consistently applied (see Warringah Shire Council v May' and Kiama Municipal Council v French'). 7. (1972) 26 LGRA 25 at pp30-31 8. (1979) 38 LGRA 425 at 429. 9. (1984) 54 LGRA 42 at 45. URJ THOMAS v THE COUNCIL OF THE CITY OF BLUE MOUNTAINS (Cole JA) 5 The citation of that passage makes it clear that it was necessary for the primary judge in determining whether or not the activity said to constitute the work in this instance, thus requiring development consent, does in fact constitute such a work. The authorities make clear that is a question of degree. Here, the land owned by Mr Thomas is of some hectares, and the land said to be affected by grading is at one end of the property. It is a question of fact which could not be regarded as unarguably clear whether or not the activity which a trial judge might find to have been carried out by Mr Thomas constituted a work within the meaning of the Environmental Planning and Assessment Act. In my view, it was thus incumbent upon the trial judge to address, with some particularity, that question as is apparent from the passages in the judgments to which I have referred. Nowhere is reference made to that issue. It was submitted on behalf of the Council that during the hearing of the case the trial judge made a comment at a time when he was seeking or giving encouragement to the parties to seek to resolve the matter in dispute. His Honour said "The subject of the case is that it is alleged Mr Thomas has carried out earthworks on his property without the council's permission. That is one cannot alter the land that you own by putting substantial quantities of soil on that land probably either by cutting channels in it without getting the council's authority. There are degrees in these things but these generally are considered to be construction works. Sometimes a work is so trivial it is not a construction work but what is generally a work of building and construction on land means that a land owner is not permitted to put mounds of earth on his land or cut big holes in it without the council's authority. Now, if that is the case it appears to me Mr Thomas might be under an obligation to restore this land to its natural condition before he started moving the land around." It is said that this passage indicates that the trial judge had to mind the questions of degree to which the authorities refer. In terms, his Honour was correct to state that activity may be so trivial as to not constitute a work but was not correct in terms to state that a land owner is not permitted to put mounds of earth on his land. That depends, of course, on the extent of the mound. However, that passage might have been sufficient to sustain a view that although in his judgment the trial judge did not refer to the question of whether or not the activities which he held Mr Thomas to have engaged in constituted a work he had that matter in mind, had it not been for the circumstance that later and after the giving of further evidence, his Honour stated the issues in the following terms: "The case concerns whether or not you put fill on your land and whether or not you have done it without the council's permission and changed the contours of the land." The case in truth did not concern whether or not Mr Thomas had put fill on his land, nor did it concern whether or not he had done so without the Council's permission. It concerned, on a proper reading of the summons whether or not Mr Thomas had engaged in the activity of moving soil without Council's permission and whether or not that movement had resulted in a mound which properly could be said to constitute a work and which thus required permission. Accordingly, after reference to the passage which may have sustained a view that his Honour had to mind the true issue of whether there was a work, his Honour departed from that statement, mis-stating the issues. As I have previously said, his Honour regrettably also mis-stated the issues in the judgment. 6 UNREPORTED JUDGMENTS The consequence is that it does not adequately appear in the judgment that his Honour had to mind the critical issue, namely whether or not the activity which his Honour found Mr Thomas had engaged in constituted a work which had been performed without Council permission. Further, his Honour was distracted by two issues, namely whether or not fill on the property had been placed there by Mr Thomas without permission and further, whether he had dug channels on his land without permission. Absent evidence of the extent of those channels, his Honour could not resolve whether they constituted a work and the first matter to which I have referred was a false issue. That seems to me to result in appealable error which of necessity requires that the orders made by the trial judge be set aside. The orders made by the Court on one reading extend beyond the orders sought in the summons. It is unnecessary to dwell on that issue in circumstances where the judgment discloses appealable error, in that the true issue for determination was not adequately addressed. For those reasons, the appeal should be upheld and the matter returned to the Land and Environment Court for a new trial. I would propose the following orders: 1. The appeal be upheld. 2. The matter be referred back to the Land and Environment Court for a new trial. 3. The respondent pay the appellant's costs. The respondent Council should pay the appellant's costs of the proceedings previously held before the Land and Environment Court but should have, if qualified, a certificate under the Suitors Fund Act. Beazley JA I agree. Dunford AJA I also agree. I would propose the following orders: 1. The appeal be upheld. 2. The matter be referred back to the Land and Environment Court for a new trial. 3. The respondent pay the appellant's costs. The respondent Council should pay the appellant's costs of the proceedings previously held before the Land and Environment Court but should have, if qualified, a certificate under the Suitors Fund Act. Counsel for Appellant: In person Solicitors for Appellant: In person Counsel for Respondent: JE Robson Solicitors for the Respondent: McPhee Kelshaw