Land and Environment Court of New South Wales CITATION: Duncan v Moore and Ors [1999] NSWLEC 170 PARTIES APPLICANT Duncan RESPONDENTS Moore and Ors NUMBER: 40061 of 1999 CORAM: Pearlman J KEY ISSUES: Interlocutory Relief :- serious question - balance of convenience - election posters Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Environmental Offences and Penalties Act 1989 Parliamentary Electorates and Elections Act 1912 DATES OF HEARING: 03/23/1999 EX TEMPORE JUDGMENT DATE: 03/23/1999 APPLICANT Mr M B Duncan (in person) SOLICITORS N/A FIRST RESPONDENT Mr R J W d'Apice SOLICITORS LEGAL REPRESENTATIVES: Makinson & d'Apice SECOND RESPONDENT Mr J A McCarthy QC with Mr J F Kildea (Barrister) SOLICITORS Riley Lawyers THIRD RESPONDENT N/A JUDGMENT: IN THE LAND AND 40061 of 1999 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 23 March 1999 MALCOLM BRUCE DUNCAN Applicant v CLOVER MOORE First Respondent VIC SMITH Second Respondent PETER FUSSELL Third Respondent JUDGMENT 1. The proceedings before me are brought by Mr M B Duncan, who is a barrister and who is appearing for himself in a class 4 application in which he seeks various substantive orders. 2. On 18 March 1999 (last week), Mr Duncan sought interlocutory relief. That application was made ex parte. The order that I then made was that pending further order the respondents, their servants or agents be restrained from affixing or causing to be affixed campaign posters on power poles within the boundaries of the electorate of Bligh. 3. The matter was stood over by me to today so that I would have the benefit of representation of the parties if they so chose. The first respondent and the second respondent have chosen to be represented today. The third respondent through his solicitor has agreed to abide by the order of the Court. 4. After hearing argument this afternoon I have concluded that the injunction which I granted on 18 March 1999 should be discharged, that I should not grant any further injunction, and that, in particular, I should not grant the injunction which the applicant seeks for the removal of the posters that are already there. 5. My reasons for that conclusion are as follows. The Court is concerned, in the granting of an interlocutory injunction, with whether there is a serious question to be tried and, if there is, whether the balance of convenience favours the granting of the order. 6. On the question of a serious question to be tried, Mr Duncan puts his case on two bases. The first basis is that the putting up of campaign posters on power poles in the electorate of Bligh is an activity which amounts to development. It is a development which requires development consent. There is no evidence of development consent. Therefore there is a breach of s 76A of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") entitling him to bring proceedings to restrain that breach under s 123 of the EP&A Act. 7. The difficulty with that argument arises from the provisions of the local environmental plans themselves. There was tendered in evidence the Woollahra Local Environmental Plan 1995 ("the Woollahra LEP") and the South Sydney Local Environmental Plan ("the South Sydney LEP"). I deal first with the Woollahra LEP. 8. Mr Duncan claims that the land which comprises public roads within the electorate of Bligh, upon which power poles are erected and to which campaign posters have been attached, is land which is shown uncoloured on the land use map which was tendered in evidence. He claims that therefore cl 16 of the Woollahra LEP applies which provides in essence that development consent is required. 9. However, there is a specific provision which deals with the very activities in question here under the Woollahra LEP and that is cl 25B. Clause 25B(1) provides that: Development for the purpose of an advertisement described in the table to this clause may be carried out without development consent but only in accordance with the conditions, if any, imposed by that table. 10. When one turns to the table one finds the following relevant description: A provision for a temporary sign being an advertisement of a temporary nature that (a) announces any local level event of a number of matters including political and relates to any temporary matter in connection with such an event and does not include advertising of a commercial nature. 11. The conditions which are set out in that table are that: The sign may be displayed within any zone, and that the sign must not be displayed earlier than 28 days before the event to which it relates takes place and must be removed within 7 days after that event. 12. Mr Duncan claims that, even if cl 25B of the Woollahra LEP applies, the signs breach the conditions because they have, as he deposed in his affidavit, been in existence affixed to the power poles for some weeks. 13. I am not satisfied from that evidence that cl 25B does not apply. I am satisfied that cl 25B is a direct and specific clause that relates to the activities in question and that, being particular it overrides the more general provisions of cl 16. Accordingly, I do not think that development consent is required under the Woollahra LEP for the affixing of temporary signs of a political nature such as the campaign posters in question here. 14. South Sydney LEP has a different provision. It provides in cl 45 that: A person must not carry out development on land shown uncoloured on the map except with the consent of the council. 15. Clause 45 is headed "Development on public roads" and on the face of it development consent would be necessary, except for subcl 3 which provides as follows: Despite subcl (1) and (2) the following development may be carried out without the consent of the council on land shown uncoloured on the map: (a) …; (b) any other development which does not involve the erection of a building or the carrying out of a work. 16. It is the contention of the representatives of the respondents that the development (if it is development), that is, the affixing of the campaign posters to power poles, is not the erection of a building or the carrying out of work. 17. The EP&A Act defines "development" as meaning the erection of a building and the carrying out of work. Section 4 provides that: The erection of a building includes erecting an advertising structure over a public road. 18. Advertising structure is defined in s 4 as being a structure used or to be used principally for the display of an advertisement. 19. It is the respondents' contention, which I accept, that the erection of a building refers to the erection of an advertising structure and not the erection of an advertisement and that accordingly the affixing of the campaign posters to the power poles is not encompassed by the phrase "the erection of a building" within the EP&A Act. It does not include the carrying out of a work because there is no specific reference to the carrying out of a work in s 4(2) which would apply to this particular case. Accordingly it is not necessary under the South Sydney LEP for development consent to be obtained. 20. There may be some issue as to whether the applicant has in any event proved his case in this regard because there is no evidence as to whether development consent has or has not been granted. Mr Duncan asks me to rely on Jones v Dunkel (1959) 101 CLR 298 for an inference that development consent had not been granted because the respondents brought no evidence on this aspect. He claims that therefore I can infer that they did not have any evidence which would assist their case. In any event, as I have said, I have come to the conclusion that development consent is not required and there is no serious question to be tried on that aspect. 21. The second or alternative ground upon which Mr Duncan relies is s 25(1) of the Environmental Offences and Penalties Act 1989 ("the EOP Act"). That section provides: Any person may bring proceedings in the Land and Environment Court for an order to restrain a breach or a threatened or apprehended breach of this or any other Act or any statutory rule under an Act if the breach or the threatened or apprehended breach is causing or is likely to cause harm to the environment. 22. The first basis upon which the respondents say that there is no serious question to be tried on this aspect is their contention that the Court has no jurisdiction to entertain these proceedings under s 25(1) of the EOP Act. The ground upon which Mr Duncan claims s 25(1) applies is that the affixing of the campaign posters to the power poles is, in his submission, a breach of s 151B of the Parliamentary Electorates and Elections Act 1912 which provides in subcl 2A relevantly as follows: A person shall not post up, or permit or cause to be posted up a poster: (a) on or within any premises occupied or used by or under the control or management of: (i) the Crown, any instrumentality or agency of the Crown, or any statutory body representing the Crown or any other body prescribed by the regulations as a statutory body representing the Crown or (ii) any local authority, 23. Mr Duncan's argument is that the posting up of the campaign posters on power poles within the Bligh electorate is a breach of s 151B(2)A. Accordingly it is, in his submission, a breach of "any other Act". He has tendered photographs which show the posters. Some of them are falling down, and some are damaged by wind and other influences. His contention is, as expressed in his affidavit of 18 March 1999, that the falling down of the posters constitutes a hazard because the posters are carried into the gutters and create a stormwater pollution hazard. 24. The argument put by Mr McCarthy QC for the second respondent is based on the fact that Pt 5 of the Parliamentary Electorates and Elections Act into which s 151B falls, is a code relating to the conduct of elections and it is therefore exclusively within the jurisdiction of the Court of Disputed Returns. Reliance was placed on the decision of Powell J, as he then was, in McDonald v Keats [1981] 2 NSWLR 268 at p 274, in which his Honour held the view that: the word "election" is not to be restricted to the declaration of the poll but is apt to extend to each and every step in the election process from the issue of the writs to the various returning officers up to and including the declaration of the poll in respect of each electoral district; it following that the provisions of s 155 of the Act, (that is the Parliamentary Electorates and Elections Act) so operates as expressly to confer upon the Court of Disputed Returns exclusive jurisdiction to entertain and to adjudicate, upon questions arising in relation to all or any of those steps. 25. I confess to serious misgivings about the respondents' argument in this connection. There are two matters which trouble me. The first is whether the affixing of posters to power poles as part of the election campaign is in fact a step or stage in the electoral process. I would have thought that the electoral process is a series of steps which flows from the issue of the writs to the declaration of the poll. But I am persuaded by the passage in the judgment of Powell J on p 274 in which he says that: the provisions of Pt V and Pt VI are so extensive and detailed that it is difficult, if not impossible, to avoid the conclusion that they were intended to lay down a "code" not only as to the circumstances in which, and the manner in which elections to the Parliament are to be conducted, but also as to the circumstances in which, and the manner in which, questions arising in the course of or relating to any stage of, the whole electoral process may be entertained and adjudicated upon. 26. It is true, as Mr Duncan says, that the question of the affixing of posters to power poles is not a question which would affect the result of the election when the poll is declared. But pt V of the Parliamentary Electorates and Elections Act is a part that relates to the conduct of elections and part of the conduct of elections is div 17 which contains s 151B relating to the exhibition of posters. So I accept the argument, McDonald v Keats having been approved by the Court of Appeal in Keating v Dixon & Ors (1991) 23 NSWLR 433, that the issue of the affixing of the posters to the power poles is an issue which is exclusively within the jurisdiction of the Court of Disputed Returns. 27. The second reason why I have misgivings is that the conclusion I have reached requires the reading down of s 25(1) of the EOP Act because that section refers in very wide terms to a breach of "any other Act" and the Parliamentary Electorates and Election Act 1912 is "any other Act". And I accept, because it was unchallenged and there is no real evidence to the contrary, that the falling down and deterioration of the posters is causing or is likely to cause harm to the environment. However, s 3 of the EOP Act provides that: … the principal object of the Act is to supplement other laws which protect the environment from pollution: (a) by creating additional offences …, (b) by enabling the imposition of penalties …, (c) by enabling courts to make orders restricting the disposition of property, or other dealings with property … and (d) by punishing contravention of those other laws and … (e) by establishing common procedures for the enforcement of other laws. 28. Section 25 must be read in that context and the argument that s 25 is not intended to infringe upon the electoral process, defined as widely as it was by Powell J in McDonald v Keats , seems to me to have force and I accept it. 29. Because I have had some misgivings, I think I should deal briefly with the other questions which will arise if my conclusion is wrong. 30. Section 25(3) requires leave to be granted before proceedings are brought. On 18 March 1999 I granted that leave. The question is whether that leave is granted for all purposes or whether I would have the power to withdraw that leave and reconsider the matter in the light of the submissions that have been put to me on behalf of all parties today. As Mr Kildea for the second respondent pointed out, I adverted to that question in the case of Brown v The Environment Protection Authority and North Broken Hill Ltd [No 2] (1992) 78 LGERA 119, where I suggested that there may be circumstances where leave could be set aside. 31. The respondents argued that such a circumstance has arisen in this case. Those circumstances are that the leave was granted ex parte, it was granted in circumstances when the question of leave being granted under s 25(3) had not been brought to the notice of the respondents as an issue, and that accordingly they did not have an opportunity to direct their minds to the question and they were therefore denied procedural fairness. 32. Mr Duncan was very careful to contact all the respondents several times, as the letters attached to his affidavit demonstrate, but although he indicated in those letters that he would approach this Court and although he repeatedly urged the respondents to seek legal advice, he did not indicate that he was seeking leave under s 25(3). 33. I think that it is appropriate, where the order granting leave has been made ex parte without express notice to the respondents, and where they have now had an opportunity to consider their position and to make submissions in relation to it, that I should set it aside and consider it afresh. So far as it is necessary for the purpose of today's judgment, that is if I am wrong in my first finding that there is no jurisdiction to entertain the issue under s 25(1), then I do so set aside the leave I granted on 18 March 1999. 34. The question then is whether the preconditions for the granting of leave that are set out in s 25(3) are met. I do not think they have been met. 35. Subsection (a) requires that the proceedings are not an abuse of the process of the Court. I mean no disrespect to Mr Duncan, whom I think has argued this case very well and has brought to the attention of this Court, indeed probably now to the public, the effect of s 25(1) and its consequences, when I say that I think that these proceedings are in terms of s 25(3) an abuse of the process of the Court. They are an abuse of the process of the Court because they are coloured by the election. Mr Duncan is a candidate. There is no evidence of serious environmental harm. There is a collateral purpose behind the proceedings which is a political one. And it seems to me, in those circumstances, that these are not proceedings which should properly be given leave within s 25. 36. Even if, however, I was wrong on that point and there was a serious question to be tried in relation to s 25(1), then I think the balance of convenience favours the respondents and not the applicant. There is no evidence of serious environmental harm. Indeed the Woollahra LEP in cl 25B seems to contemplate that temporary signs will be displayed for a length of time and the letter which is attached to Mr Duncan's affidavit of 18 March 1999, from the Director of Planning and Building at the South Sydney Council, seems to indicate that the council has no fear of environmental harm. That director, Mr Harrison, said that in any event he understood that the candidates generally removed the posters after the election. 37. There are only four days to go to this election. It seems to me, in weighing up the balance of convenience, that the convenience to the candidates having put up their posters and leaving them there for the next four days outweighs the environmental harm which I have found to exist and outweighs the breach of the Parliamentary Electorates and Election Act 1912, from which that harm flows. In those circumstances I say that, if there is a serious question to be tried on the issue that arises under s 25(1), the balance of convenience does not favour granting of an injunction. 38. There were submissions made about the exercise of my discretion. I do not intend to deal with those because I do not think that is necessary in view of the findings that I have made. 39. The effect of making no interlocutory injunction at this stage leaves the proceedings on foot to be disposed of as substantive proceedings at some time which is convenient to the Court. There have been no submissions put to me on the question of costs. In circumstances where the substantive proceedings have still to be heard, the appropriate order to make in relation to costs is merely to reserve the question of costs. 40. The exhibits may be returned. If it is necessary for them to be re-tendered in the substantive proceedings then they can be re-tendered. 41. I thank everybody for their very helpful submissions. 42. I stand the proceedings over to a callover before the Registrar at 9.00 am on 20 April 1999. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.