Land and Environment Court of New South Wales CITATION : Cessnock City Council v Heslop & Anor [1989] NSWLEC 199 APPLICANT Cessnock City Council PARTIES : RESPONDENT Heslop & Anor FILE NUMBER(S) : 40246 of 1988 CORAM: Cripps J KEY ISSUES: :- LEGISLATION CITED: Local Government Act 1919 CASES CITED: Warringah Shire Council v Sedevcic 63 LGRA 361; Fatsel Pty Limited & Anor v ACR Trading Pty Limited & Anor [No 3] 64 LGRA 117 DATES OF HEARING: DATE OF JUDGMENT: 06/01/1989 APPLICANT Mr Wilson RESPONDENT Mr McEwan LEGAL REPRESENTATIVES: JUDGMENT: His Honour: On 27 October 1988, the Council of the City of Cessnock commenced proceedings in the Class 4 jurisdiction of the Court against Daryl William Heslop and Phillipa Heslop seeking orders that the respondents be restrained from using their land in breach of conditions of a development consent granted by the Council on 23 December 1987. It also sought orders that the respondents be restrained from allowing entry or exit by vehicles from the southern portion of their land on to Ingles Lane, Pokolbin in breach of the consent granted. On 23 December 1987, the Council granted development consent for extensions and renovations to an existing restaurant ("Hunters Retreat") subject to certain conditions as follows: Road intersection shall be closed by permanent the lodgment of the relevant building 13. All driveways, access corridors and carparking and in Parking Construction Guidelines, Site Drainage" available from proposed works shall be submitted and approved a 14. All redundant vehicular accesses are to be and the footpath, road shoulders and match existing conditions at no cost to when the new vehicular crossings are 15. The applicant shall construct a heavy duty edge boundary applicants complained in early 1987 that the respondents had illegally constructed a vehicular crossing in breach of s 224 of the Local Government Act in circumstances the Council considered dangerous. Upon being notified of the development consent, the respondents wrote to the Council and admitted that they had constructed the unauthorised exit. They denied it was dangerous and said they would appeal to the Land and Environment Court against the imposition of the condition concerning the exit. There are two means of ingress and egress to th e subject land. The subject litigation concerns the southern exit.) Although the respondents informed the Council that they would not use the driveway and that they would appeal to the Land and Environment Court, they continued to use the driveway and, at least until August 1988, did not lodge an appeal to the Land and Environment Court. On 24 May, the Council told the respondents it would take proceedings against them. In August 1988, they lodged an appeal to the Court against the conditions of the development consent. They continued to be in breach and in October 1988 the Council commenced the subject Class 4 proceedings. In accordance with the general practice of the Court, the Class 4 proceedings were not heard until the merit planning appeal was disposed of. The merit planning appeal was heard and determined by Assessor Riding on 31 January 1989. The principal issue before the Assessor was whether the southern exit should be closed ie whether condition 7 ought be imposed. Having heard all the evidence and having had a view of the land, the assessor came to the conclusion that "Despite the differing conclusions reached by experts who gave evidence, I clearly find the southern or 'unauthorised' driveway sought by the applicant to be less satisfactory for exit from the property than an exit driveway situated adjacent to the entry driveway further to the north at the crest in Ingles Lane". In the result, the assessor confirmed the Council's decision. Ordinarily that would have concluded the matter. Generally speaking, Class 4 matters in the Land and Environment Court stand behind the disposal of merit planning appeals. It was for this reason that the subject Class 4 proceedings were stood over until the merit planning matter had been dealt with. Had the Court been aware that the respondents would not accept the merit planning decision, it would not have delayed the Class 4 proceedings. In February 1989, the Council sought to have the Class 4 proceedings listed for hearing. The matter was listed before the Registrar on a number of occasions and directions were given requiring the parties to proceed by way of affidavit and to file all affidavits by certain nominated dates. The dates were extended from time to time. The respondents filed two affidavits (which were not sought to be used in the present proceedings) but filed no other affidavits until the day listed for hearing. Mr Wilson, on behalf of the Council, objected to Mr McEwan, on behalf of the respondents, reading the affidavits. I was told the affidavits were directed to the question whether condition 7 was an appropriate condition to be attached to the development consent. Mr Wilson's client had already filed certain affidavits seeking, in effect, to justify the correctness of the assessor's decision. Mr Wilson informed me that he was prejudiced by the new material and that such prejudice could not be met without an adjournment. He a lso stated he opposed an adjournment. I declined to allow the affidavits to be read. The respondents had been given every opportunity to be heard and to present material before the Court. They gave no explanation as to why they had not availed themselves of the opportunity. I declined the application for adjournment. I took into account the circumstance that the respondents had failed, without adequate explanation, to abide by the directions of the Court. I also took account of the Council's submission that it wished to end what it regarded as a flagrant breach of the planning laws which has continued for a long period of time and that the litigation should be finalised. Furthermore, I accept Council's submission that the Council's prejudice in this regard would not be met by ordering the respondents to pay the costs. The litigation would continue and the Council would be out of pocket. The respondents do not deny that they are in breach of the planning Act. However, they asked the Court, in the exercise of its discretion, either to make no order restraining the continued use of the land for the purpose of the consent or to suspend any order until such time as they make application to the Court to modify the consent granted by Assessor Riding. To date no such application has been made and no fresh application has been made to the Council. The high water mark of the respondents' case for the Court to exercise its discretion in their favour was that there was an opinion from a planning expert that the southern entry is not as dangerous as the Council alleges. The Council's Engineer, Mr Smith, was cross examined extensively on this subject. The cross examination did not persuade me that his earlier opinion ought be rejected. However, for present purposes, I am prepared to assume in favour of the respondents that there is a reasonable view that the southern exit is not as dangerous as the Council alleges. So much was acknowledged by Assessor Riding who nonetheless came to the conclusion, after a view, that the Council's case was to be preferred. (But, as I endeavoured to explain in the course of the hearing, the circumstance, if it be correct, that there is another view reasonably open, is scarcely a sufficient reason for the Court, in the exercise of its civil enforcement jurisdiction, not to make an order prohibiting the unlawful conduct to cont inue in view of the history of the matter). The respondents have been in breach of the planning laws for a long time. In my opinion, it is not to the point that at some later time the consent might be modified so as to make lawful that which is presently unlawful. It is not appropriate in the circumstances such as are before me for the Court to deny a council its evident entitlement to an order enforcing the planning laws because it is possible that the planning consent given by the Council (and later confirmed by the Court) might be varied at some subsequent time. I propose in the circumstances of this case to make the orders asked by Council including the blocking up of the driveway and the removal of the gravel path laid by the respondents. I have not ignored Mr McEwan's submission that in the event the consent is later modified so the southern exit can be used the respondents will suffer financial hardship by being required to remove the gravel which may later be replaced. The gravel that the respondents will be ordered to remove was deposited on Council's land without its consent and in breach of the planning consent. Any financial hardship that might be suffered by the respondents because the gravel ordered to be removed by the Court might later be reinstated is a matter of negligible significance. The responsibility for any such hardship lies at the respondents' door. Upon the assumption favourable to the respondents that there is new material which might persuade the Court to modify its earlier order it would, in my opinion, be quite inappropriate, in the circumstances of this case, for the Court to exercise a discretion in favour of the respondents. The Council granted consent subject to conditions. The consent was confirmed by the Court. The effect of the respondents' submission is that the Court should sanction the use of the land for the purpose of the consent while at the same time sanction flagrant breaches of the conditions. To call in aid Warringah Shire Council v Sedevcic 63 LGRA 361 and Fatsel Pty Limited & Anor v ACR Trading Pty Limited & Anor [No 3] 64 LGRA 117 is, in my opinion, to misunderstand the nature of these cases and the reasons why the relief was denied. For the abovementioned reasons the orders as asked should be made and subject to giving the respondents 14 days to erect the barrier and remove the gravel, the orders should operate forthwith. I order that Short Minutes be brought into Court to give effect to the orders proposed by the Court. 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.