Land and Environment Court of New South Wales CITATION: Holroyd City Council -V- Saadie [1999] NSWLEC 63 PARTIES APPLICANT: Holroyd City Council RESPONDENT: Saadie, M.F. NUMBER: 40199 of 1998 CORAM: Bignold J KEY ISSUES: :- declaratory orders/relief Practice and Procedure-undertaking to Court LEGISLATION CITED: declaratory orders/relief Practice and Procedure-undertaking to Court DATES OF HEARING: 03/05/1999 DATE OF JUDGMENT DELIVERY: 03/19/1999 APPLICANT: Ms E. Ranken, Solicitor Solicitors: Pike Pike and Fenwick LEGAL REPRESENTATIVES: RESPONDENT: In person Solicitors: N/A JUDGMENT: Introduction 1. These are class 4 proceedings in which the Applicant (the Council) seeks declaratory and mandatory injunctive relief in respect of a structure erected at premises owned and occupied by the Respondent as his residence, known as No. 55 Damien Avenue, Greystanes (the subject land). 2. The Council's case is that the structure:- (i.) was built without the requisite approval under the Local Government Act 1993 (the LG Act), having been obtained therefor; (ii.) is located in a position on the subject land which infringed the 7.5m (currently 6m) building line fixed in respect of residential properties in the Council's area; (iii.) is the subject of a demolition order issued by the Council pursuant to s.124 of the LG Act on 6 January 1998 in respect of which no appeal was brought to this Court pursuant to s.180 of the LG Act; and (iv.) is in the opinion of the Council's witness Mr Robert Hall (an Environmental Health and Building Surveyor) "unlikely to be approved in its current location…..based upon streetscape and general setbacks of surrounding dwellings, garages and carports complying with the Council's building line". 3. The Respondent, who was not legally represented, resists the Council's claim to mandatory injunction (while not denying that the structure was built without the requisite approval under the LG Act) on the grounds that the structure, if allowed to be completed, will be structurally sound and will function entirely as a decorative feature (and not as a carport or pergola etc.) and so functioning will complement the other decorative built features on his property (and most particularly, the front boundary fence) and the landscaping of the front of the subject land. The Court's Jurisdiction to Determine the Council's Claims 4. This question arises because subsequent to (i) the erection of the structure and (ii) the issue of the Council's s.124 Order the material provisions of Chapter 7 of the LG Act (most notably the provisions of s.68 which required a person erecting a building to obtain the prior approval of the Council and the provisions of s.124 which empowered a Council to order the demolition of a building erected without the Council's prior approval) were repealed as from 1 July 1998. 5. This repeal was effected by the Environmental Planning and Assessment Amendment Act 1997 (Act No. 152) which at the same time, generally reinstated in the Environmental Planning and Assessment Act 1979 (EP&A Act) the repealed provisions of the LG Act. 6. The more particular question that now arises is whether the Council's present claims are legally sustainable in circumstances when the present proceedings were commenced (on 20 October 1998) at a time when the material provisions of the LG Act, upon which the Council's claims wholly rely, are no longer in force, having been repealed on 1 July 1998. 7. Although this question was not explored in the proceedings (presumably because the Respondent was not legally represented) it is nonetheless imperative that the Court be satisfied that it possesses the requisite jurisdiction to determine the Council's claims. Accordingly, I propose to examine the question, albeit unfortunately without the benefit of argument. 8. But for the repeal of the material provisions of Part 7 of the LG Act, the Court's express jurisdiction conferred by s.20(1) (d) of the Land and Environment Court Act 1979 would undoubtedly embrace the present proceedings. 9. In this respect s.673(1) of the LG Act materially provides that: "…a council may bring proceedings in the Land and Environment Court…for an order to remedy or restrain a breach of this Act" 10. Section 672 defines "a breach of this Act" to mean, inter alia, "a contravention of or failure to comply with this Act' the latter expression including "an order under Part 2 of chapter 7". 11. Prior to the partial repeal of s.68 and s.124 of the LG Act, they relevantly provided respectively as follows: "S68(1) A person may carry out an activity specified in the following Table only with the prior approval of the council…" The Table accompanying the section contains in Part A the following matter:- "1. Erect a building" Section 124 A council may order a person to do….a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table. The Table accompanying the section contains the following matter: "Column 1 Column 2 Column 3 To do what? In what circumstances? To whom? 1 To demolish or remove a building (a) Building is erected without prior approval of council (in a case where prior approval is required)" Owner of building 12. It follows (again putting aside the consequences of the repeal of the material provisions of s.68 and 124 of the LG Act) that the erection of the structure by the Respondent without having obtained approval therefor, involved a double "breach of the Act" namely a contravention of s.68 and a non-compliance with the order given under s.124 and that the present proceedings which seek to remedy these breaches by the obtaining of the mandatory injunction for the demolition of the structure, are proceedings sanctioned by s.673(1) of the LG Act and hence fall within the Court's express jurisdiction as conferred by s.20(1)(d) of the Land and Environment Court Act 1979. 13. Does the relevant repeal of ss.68 and 124 prior to the commencement of the proceedings change the legal complexion just outlined? 14. Upon one approach to the construction of ss.672 and 673 it is legally immaterial when the breach of the Act occurred it being sufficient that there was, in the past, a relevant breach. 15. However, I do not think this construction is the correct one, being of the opinion that the preferred construction of the sections is that the relevant breach of the Act must be a "current" breach in the sense that the provisions of the Act that have been relevantly contravened or not complied with and hence give rise to the "breach of the Act", are provisions that remain in force at the times that the proceedings under s.673 (i) are commenced in the Court and (ii) are adjudicated upon. 16. The adoption of the preferred construction of ss.672 and 673 does not, however, conclude the question concerning the Court's jurisdiction to determine these proceedings because effect must be given to the provisions of s.30(1) of the Interpretation Act 1987 which relevantly provides as follows: "(1) The amendment or repeal of an Act does not: ………… (b) affect the previous operation of the Act… (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act….; (e) affect any investigation, legal proceeding or remedy in respect of such right, privilege, obligation, liability or penalty, and any such …..legal proceeding or remedy may be instituted, continued or enforced, as if the Act had not been amended or repealed." 17. In my judgment, s.30 of the Interpretation Act has effect to legally sustain the present proceedings as proceedings falling within the ambit of ss.672 and 673 of the LG Act, notwithstanding the construction I have adopted of those sections. 18. I should note in passing the existence of cll. 56 and 57 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 (the Transitional Regulation) Those clauses provide as follows: "56. Anything done before the appointed day under Part 2 of Chapter 7 of the unamended LG Act 1993 is taken to have been done under Division 2A of Part 6 of the amended EP&A Act 1979, but only to the extent to which it could have been done under that Division had that Division been in force when it was done." "57. (1) An order for prescribed action in force immediately before the appointed day under section 124 of the unamended LG Act 1993 is taken to be an order for the corresponding action specified in the Table to section 121B of the amended EP&A Act 1979. (2) Despite the provisions of the amended EP&A Act 1979, the maximum penalty that may be imposed under that Act for a contravention of such an order is the maximum penalty that could have been imposed under the unamended LG Act 1993 had the EP&A Amendment Acts not been enacted." 19. These clauses appear to have the effect of bringing within the scope of the EP&A Act actions taken by councils for the making of orders under s.124 of the LG Act prior to its repeal on 1 July 1998. If this be the true effect of the clauses, it would follow that any enforcement action by the Council in respect of the relevant s.124 Order it issued on the Respondent in the present case, would be maintainable pursuant to the provisions of the EP&A Act (ss.122 to 124 (incl)). 20. This outcome would, in turn, raise a doubt as to the maintainability, in proceedings brought pursuant to s.673(1) of the LG Act as authorised by s.30(1) of the Interpretation Act, of the Council's claims in respect of the Respondent's failure to comply with the s.124 order. However, in this respect, it is to be noted that s.30(3) of the Interpretation Act relevantly provides as follows: "This section applies to the amendment or repeal of an Act…….in addition to, and without limiting the effect of, any provision of the Act…..by which the amendment or repeal is effected." 21. I do not think it necessary, in the present case, that I entirely resolve the apparent difficulty created by the co-existence of cll. 56 and 57 of the Transitional Regulation and s.30 of the Interpretation Act. This is principally because the Council's claim to relief is independently founded on a relevant breach of s.68 of the LG Act and the Respondent's liability for that breach in the present proceedings is clearly sustained by s.30 of the Interpretation Act. 22. A further reason is that enforcement of non-compliance with the s.124 Order issued by the Council to the Respondent in the present case, falls within the Court's express civil enforcement jurisdiction whether the Council's claim in respect of that Order, be properly adjudged to be maintainable under (i) ss. 672 and 673 of the LG Act as authorised by s.30 of the Interpretation Act or (ii) ss.122 and 123 of the EP&A Act by virtue of the operation of cll. 56 and 57 of the Transitional Regulation. 23. For all the foregoing reasons, I hold that the present proceedings and the Council's claims to relief, fall within the scope of this Court's express jurisdiction. The Relevant Facts 24. As I have earlier noted, the Respondent does not dispute that the structure was erected without having obtained the requisite approval from the Council. 25. The structure came into existence late in 1997, the Council receiving a neighbour complaint on 4 December 1997. The subject land was inspected on that day by a Council servant who observed what he described as a "carport type structure" located approximately 2m from the street front boundary of the subject land. He took photographs of the structure and noted that it was not included in the building works that the Council had approved for the subject land earlier in 1997 in relation to building application No. 97-224. The Council servant thereupon caused to be issued to the Respondent on the same day, a Notice of intention by the Council to issue an order pursuant to s.124 of the LG Act requiring the "carport" to be demolished. On 6 January 1998 the Council issued the proposed s.124 Order requiring the demolition of the carport structure within 28 days. 26. On 6 February 1998 the Respondent lodged what Mr Hall in paragraph 6 of his affidavit sworn 23 November 1998 refers to as "amended building application plans" which included the carport type structure, described on the plans as "Proposed pergola". The amended building plans also showed some additions that had been erected to the approved garage building located at the rear of the subject land. 27. Upon receipt of the amended building plans, the Council publicly notified the amended proposal and received two letters of objection—one from Mr McLean of No. 73 Runyon Avenue and the other from Mr Buhagiar of No. 57 Damien Avenue (each being adjoining properties). Each objection concentrated attention on the rear garage building additions. In respect of the structure (the subject of the present proceedings), Mr McLean merely sought advice concerning measurements of the structure and while Mr Buhagiar objected to the structure he did not express the grounds for his objection. 28. Thereupon a report in respect of the amended building plans was submitted to the Council by its Development and Community Services Department. Again, that report concentrated attention on the rear garage building additions. In respect of the pergola type structure, the Report merely recorded the facts pertaining to the s.124 Order issued by the Council and recommended that the Council "continue legal action to achieve its removal". It described the structure as follows: "A pergola/structure built approximately 2m from the front boundary, 2.5m in height and 5.5m long." 29. The Council considered the aforesaid report at its meeting held on 24 March 1998 and resolved (i) to issue a s.124 Order in respect of the rear garage building additions to bring it into conformity with the approval granted by the council and (ii) to continue with the legal action commenced in respect of the demolition of the "unauthorised carport/structure". 30. The Respondent appealed to this Court against the s.124 Order issued by the Council pursuant to its resolution passed on 24 March 1998. In those proceedings, the Respondent was legally represented and the outcome of the appeal proceedings involved some measure of success for the Respondent. 31. In presenting his own defence the Respondent, who comes from Lebanon, stated that the structure was intended as a decorative element to complement the appearance of his home and more particularly, the front boundary fence and the landscaping in the front yard. Since acquiring the property some three years ago, the Respondent has undertaken a number of home improvements which include a feature front fence of unique design and appearance of which the Respondent is proud. If allowed to complete the structure, the Respondent indicated that its finished appearance would harmonise in its geometric shape and colouring with the front fence and front garden. He has no intention of using the structure as a carport or pergola. 32. The evidence indicates that the Respondent's home and its curtilage and accoutrements are very presentable in appearance and are apparently well maintained. The Respondent is pleased with his home improvements and considers that the combined appearance of the front fence and the decorative structure (if and when completed) and landscaping makes a distinctive contribution to the streetscape. 33. The Respondent also said that he thought that his appeal against the Council's s.124 Order also included an appeal against the earlier s.124 Order issued in respect of the subject structure. In this respect, he was mistaken since by the time of service of the Council's further s.124 Order, the time to appeal against the earlier Order had long since expired. 34. The subject land is situate within the Residential 2(a) Zone under the Holroyd Local Environmental Plan. The Council's Development Control Plan No. 4— "Guidelines for one and two storey residential development" came into effect on 15 April 1998. Clause 13 deals with building setbacks and cl.13.2 relevantly provides as follows: "The minimum setback from the principal street frontage shall be 6.0m except where adjacent residential development is closer to the front boundary in which case the setback may be similar to that which exists. …… Use of setbacks The area between the street alignment and the building setback is to be landscaped except for areas used for driveways and paths for vehicles and pedestrians gaining access to the site. …… (i.) Garages or carports should be set back behind the building line." 35. The Respondent's dwelling-house erected on the subject land is set back 10m from the street frontage. At the rear of the Respondent's dwelling-house there exists a carport and beyond that, the garage building that I have earlier mentioned. 36. Access to the carport and garage is from the street frontage and passes beneath the roof of the structure. The roof is not an enclosed structure but comprises criss-crossing timber beams. That structure is supported by four iron posts each erected into concrete pads or footings. It is the Respondent's desire to complete the structure by appropriate decorative finish (i.e. adding dimension to the support posts by geometric shaped timber frames and painting etc). 37. My findings in relation to the structure on the evidence can be stated as follows: (i.) the structure was erected towards the end of 1997 without the Respondent having obtained the requisite approval therefor pursuant to s.68 of the LG Act; (ii.) the structure which is essentially completed (except for decorative finish) comprises an oval-shaped open roof comprising intersecting timber beams of overall dimensions of 5.5m in length and 2.8m in width supported by four iron posts placed in concrete pads; (iii.) the structure was the subject of an order made pursuant to s.124 of the LG Act requiring its demolition; (iv.) during the currency of the s.124 Order, the Respondent lodged amended building plans seeking Council's approval for the structure; (v.) the Council has never formally determined the amended building application for the structure; (vi.) instead of determining the amended building application, the Council resolved to take legal proceedings to enforce the s.124 Order that it had issued on the Respondent before he made his amended building application; (vii.) the Respondent did not appeal against the s.124 Order although he may have subsequently mistakenly believed that his appeal in this Court against the Council's separate and later s.124 Order in respect of the rear garage additions, included an appeal against the subject s.124 Order; (viii.) the structure is erected within the Council's 6m building line established by the Council Development Control Plan No. 4, being at its closest point 2m from the street frontage; (ix.) it has not been established that the setback provisions of the Council's Development Control Plan No. 4 (including the earlier version adopted in 1994 imposing a 7.5m setback) applied to buildings the subject of building applications in contradistinction to buildings the subject of development applications under the EP&A Act; (x.) the structure is not, in terms of either its design or its intended use, a carport; (xi.) rather, in terms of design and intended use, the structure is a decorative feature; (xii.) as a decorative feature, the structure, if when completed, is harmonious in appearance with the existing front boundary fence erected on the subject land; (xiii.) as a decorative feature, the structure might reasonably be regarded as forming an integral feature of the landscaping of the front curtilage to the Respondent's dwelling-house; (xiv.) the structure is neither unsightly in appearance nor unsafe in construction; (xv.) no particular objection has been raised to the structure except for (i) the adjoining owner's objection which did not express any grounds or reasons for objection; and (ii) the Council's objection that it infringed the building line; (xvi.) other than the public detriment that is presumed in law to be occasioned by virtue of a breach of the LG Act, no particular environmental or public detriment or injury has been caused by the unlawful erection of the structure; and (xvii.) I am unable to say whether the structure, considered as a decorative feature, (and not as a carport etc.) would be approved by the Council if application therefor were to be made (as is contemplated by order that may be made pursuant to s.676(2) of the LG Act). The Exercise of the Court's Statutory Discretion 38. In the light of the foregoing findings of fact, the question arises as to how the Court should exercise its discretion in this case. 39. It is, of course, well established that the Court has a very wide discretion to grant or to withhold injunctive relief in the case of the civil enforcement of a breach of the EP&A Act: see in particular Warringah Shire Council v. Sedevcic (1987) 10 NSWLR 335. 40. The same approach should, I think, with necessary adaptations (recognising that public and environmental injury or detriment by virtue of a breach of the EP&A Act is apt to be more extensive and significant than is the case by virtue of a breach of the LG Act), be applied to the statutory discretion conferred upon the Court by s.676(1) of the LG Act. 41. In addition to that broad and salutary discretion, there is a need to consider the quite separate discretion conferred by s.676(2) of the LG Act for the Court to enable an application to be made to obtain approval under Part 1 of Chapter 7 in a case, such as the present, where there would not have been a breach of the Act but for the failure to obtain the requisite approval. 42. Consideration of the discrete discretion conferred by s.676(2) of the LG Act will generally be almost universal in its application because there are no absolute prohibitions created by that Act on the erection of buildings. In this respect, the discretion is likely to be far wider in its application than the counterpart discretion conferred upon the Court by s.124(3) of the EP&A Act in respect of breaches of that Act (because many breaches of that Act are not curable by the grant of development consent). 43. Regrettably, however, in the present case there is simply no scope for the application of the discretion conferred by s.676(2), because since 1 July 1998, there has been no requirement for approval to be obtained under the LG Act for the erection of a building. Although since that date, there has been a requirement for development consent to be obtained under the EP&A Act for the erection of a building referred to in the Table to section 68 of the LG Act (vide cl.29 of the Transitional Regulation) the reference in s.676(2) of the LG Act to obtaining approval under Part 1 of Chapter 7 would not attract that counterpart provision of the Regulation. In so concluding, I note that cl.73 of the Transitional Regulation in terms, refers to "corresponding provisions of the amended EP&A Act 1979" but that referential provision does not extend to provisions contained in the Transitional Regulation. 44. It follows from the foregoing that in the present case, the discretion conferred by s.676(2) of the LG Act is simply not available. 45. One consequence of the non-availability in the present case of the discretion conferred by s.676(2) of the LG Act is the appropriateness of applying the test adopted by the Court of Appeal in Woollahra Municipal Council v. Barlow (1988) 66 LGERA 248 of "the prospects of success in a hypothetical appeal brought by the Respondent against the Council's decision disapproving the structure". (I appreciate, of course, that unlike the facts in Barlow, where there had been an actual refusal by the Council of an application, in the present case, although there was an application (the amended building application) it has never been formally determined by the Council. However, I do not think that factual difference excludes application to the present case of the approach adopted in Barlow). 46. Adopting that approach, I am of the opinion that such a hypothetical appeal would enjoy good prospects of success, based upon the evidence I have heard in these proceedings and my findings thereon. 47. In particular, the facts that the structure is decorative in design and intended use, is harmonious with the front fence and the landscaping of the front curtilage to the Respondent's dwelling-house combined with the fact that it has not been shown that the setbacks of the Council's Development Control Plan No. 4 are applicable to building applications (but that even if they are applicable, the structure is not relevantly a carport or garage and functions as an integral part of the landscaping) all suggest that such a hypothetical appeal would enjoy good prospects of success. 48. These same findings, are in my judgment also, decisive in the exercise of discretion if the matter is to be determined, not by reference to the "hypothetical appeal" approach (as in Barlow) but by reference to the general principles that have been established concerning the nature and scope of the statutory discretion conferred by s.676(1) of the LG Act (i.e. by adapting the principles governing the exercise of the discretion conferred by s.124 of the EP&A Act). 49. In so concluding, I also take into account the fact that the LG Act provides a wide range of options for enforcement of a breach of the LG Act, in addition to civil enforcement action provided by ss.672-674, namely: (i.) prosecution for an offence under s.626 or s.628; (ii.) service of a demolition order pursuant to s.124; and (iii.) execution by the Council of the s.124 Order pursuant to s.678(1) in the case of default by the person bound. 50. In considering the appropriateness of the remedy sought by the Council in these proceedings, I also take into account the fact that the structure is, in essence, a very modest structure, not expensive in itself, and not expensive to remove. 51. Whereas this last-mentioned fact undoubtedly establishes that the granting of a mandatory injunction would not impose any significant financial hardship on the Respondent, it also establishes that the remedy of mandatory injunction (with the attendant costs of proceedings claiming such a remedy) is somewhat excessive and disproportionate to the nature of the breach of the LG Act, in the present case, particularly given the availability of the other remedies that I have mentioned. 52. Yet another available option in the present case to the breach of the LG Act would have been the Council's consideration of the issue of a building certificate under Part 4 of Chapter 7 in respect of the structure. (This Part has also been repealed but is substantially re-enacted in Part 8 of the EP&A Act). 53. My consideration of all of the evidence leads me to conclude that the Council's evaluation of the case ranged no deeper than its recognition that the structure had been erected without the requisite approval having been obtained therefor beforehand. This fact establishes a relevant breach of the Act, but by itself does not dictate the proper judicial response to the present proceedings. 54. For all the foregoing reasons I would exercise my discretion by declining to grant the mandatory injunction sought by the Council to remedy the breach of the LG Act. 55. However I would so exercise my discretion in favour of the Respondent subject to the following terms and conditions: (i.) The Respondent should undertake to the Court to finish the structure so as to be harmonious in appearance with the front boundary fence and the landscaping in the front curtilage; and in this respect shall submit proper plans to the Council prior to completing the structure; (ii.) The Respondent should undertake to the Court that the structure shall be used only for decorative purposes and in particular shall not be used as a carport or for other similar purposes. Conclusions and Orders 56. For all the foregoing reasons I propose to exercise my discretion by refusing the mandatory injunction upon the terms I have indicated. In these circumstances, no useful purpose is to be served by making the declaration sought. 57. Having regard to the outcome of the litigation I do not think there is any reasonable basis for upholding the Council's application for costs. In so concluding, the Respondent must consider himself fortunate in the result, because by erecting the structure without the requisite approval, he has exposed himself to the liability of the present proceedings. 58. Accordingly I make the following orders: 1. Upon the Respondent undertaking in writing to the Court: (i.) to finish the structure so as to be harmonious in appearance with the front boundary fence and the landscaping in the front curtilage; and in this respect to submit proper plans to the Council prior to completing the structure; (ii.) that the structure shall be used only for decorative purposes and in particular shall not be used as a carport or for other similar purposes; the application be dismissed. 2. The required written undertakings by the Respondent are to be filed in the Registry within 7 days of today. 3. Exhibits be returned. 4. No order as to costs. 5. Liberty to restore on three days notice in the event of the proceedings not being disposed of in accordance with Order No. 1. I HEREBY CERTIFY THAT THIS AND THE PRECEDING 23 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF HIS HONOUR MR JUSTICE N R BIGNOLD. Associate 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.