Land and Environment Court of New South Wales CITATION : Mosman Municipal Council v Kelly (No. 2) [2008] NSWLEC 229 APPLICANT: Mosman Municipal Council PARTIES : RESPONDENT: David Kelly FILE NUMBER(S) : 40967 of 2006 CORAM: Lloyd J KEY ISSUES: Practice and Procedure :- setting aside judgment made in the absence of a party - unauthorised building structure - relevant considerations - no arguable defence - public interest in orderly development and use of land - application dismissed LEGISLATION CITED: Uniform Civil Procedure Rules 2005 r 36.16(2)(b) CASES CITED: Mosman Municipal Council v Kelly [2007] NSWLEC 90 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 DATES OF HEARING: 13 May 2008 and 31 July 2008 DATE OF JUDGMENT: 31 July 2008 EX TEMPORE JUDGMENT DATE : 31 July 2008 APPLICANT: S Griffiths (solicitor) SOLICITORS: Pike Pike & Fenwick LEGAL REPRESENTATIVES: RESPONDENT: L Williams (agent) SOLICITORS: N/A JUDGMENT: - 9 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Lloyd J Thursday, 31 July 2008 LEC No. 40967 of 2006 MOSMAN MUNICIPAL COUNCIL v KELLY (No. 2) [2008] NSWLEC 229 EX TEMPORE JUDGMENT 1 HIS HONOUR: The respondent, Mr David Kelly, is the owner of a property known as No. 91 Ourimbah Road, Mosman. 2 On 25 November 1999, Mosman Municipal Council granted development consent for the demolition of a shed and the construction of a double garage on the property subject to conditions. Although no construction certificate has been issued, a garage has been erected and which does not bear any physical resemblance to the garage which was the subject of the consent. On 12 October 2006, the council commenced proceedings in this Court seeking an order that Mr Kelly demolish the unauthorised structure. 3 After several unsuccessful attempts to serve Mr Kelly with the originating process, the Court made an order for substituted service to be effected by affixing copies of the application and points of claim to the front door of the premises and by sliding copies of the same documents under the front door. The documents were duly affixed to the front door on 28 November 2006, but were unable to be slid under the door due to a fixture placed at the base of the door. Accordingly, the Court made a further order for substituted service to be effected by fixing the application and points of claim together with a formal notice of hearing to the front door of the premises. 4 On or about 28 December 2006, the application and points of claim together with a letter advising Mr Kelly that the matter had been listed for hearing on 19 February 2007 were affixed to the front door of the premises. 5 On 18 February 2007, the matter came before Jagot J. There was no appearance by or for Mr Kelly. Jagot J heard the case in the absence of Mr Kelly: see Mosman Municipal Council v Kelly [2007] NSWLEC 90. 6 Her Honour was satisfied by the evidence that the erection of the garage structure was development which required development consent under the relevant environmental planning instrument and that no development consent had been obtained for the garage structure that has now been erected. 7 Her Honour was also satisfied by the evidence that Mr Kelly was the owner of the property, that he constructed or caused to be constructed the garage structure on the property and that he thereby caused a breach of s 76A of the Environmental Planning and Assessment Act 1979. 8 Her Honour noted the evidence advanced on behalf of the council relating to a number of concerns about the garage structure (at [23]): ( 1) the structure is of excessive height, bulk and scale, (2) the structure results in the absence of any material landscaping in the rear yard, (3) the structure may involve a possible breach of the Council's floor space ratio control in cl 15 of the LEP [Local Environmental Plan], (4) the guttering appears to be unconnected and may cause a nuisance to neighbours, (5) there is an absence of setback from the side boundary, particular to the east, (6) the driveway grades from the structure to Rosebery Lane, which is a public road, are possibly inappropriate, and (7) the Council has not had the opportunity to assess or consider the type of information generally available if an application for the erection of the structure had been lodged or indeed the type of information that would otherwise be generally available to the Council had it in any way been involved in an assessment process, to ensure the health and safety of persons using the structure and others. ... 9 Her Honour was satisfied, having regard to the extent of the breach and that it could not be characterised as merely trivial or technical, that an order be made that Mr Kelly demolish the structure. 10 An order was accordingly made on 18 February 2007 in the following terms (at [27]): The respondent demolish the building consisting of a two-storey garage structure located at the rear of premises known as 91 Ourimbah Road, Mosman within a period of two months after the expiration of the stay of this order in accordance with order (2) below. 11 The second order made by her Honour was for a stay postponing the operation of the order for a period of sixty days. 12 Mr Kelly now applies for an order that the judgment of Jagot J be set aside. 13 Rule 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 enables the Court to set aside or vary a judgment or order after it has been entered if it has been given or made in the absence of a party. Mr Kelly says that he did not receive the documents which were attached to the front door of his house and was unaware of the proceedings. Mr Kelly is represented in these proceedings by an agent, Ms L Williams. 14 Mr Kelly has given extensive evidence in which he admitted erecting the present garage structure and stated his reasons for constructing it, which, he says, was done to meet his needs as a carpenter, as I understand his evidence. 15 Mr Kelly's application to set aside the judgment of Jagot J is based on various grounds including amongst others the fact that the garage structure was constructed to meet Mr Kelly's needs; the fact that there is a petition from some members of the local community in favour of the retention of the structure; the fact that there are other garages of a similar nature in the vicinity as evidenced by photographs that have been tendered; and that there are other similar structures in the Mosman area identified in photographs that have been tendered. 16 Mr Kelly also submits that the requirement for a single storey structure with a flat roof as shown in the development consent is unreasonable and does not meet his needs for storage for his cars, tools and furniture. The structure is also said by Mr Kelly to be structurally sound and that is apparently supported by the evidence of an expert, Mr Hill. 17 The judgment of Jagot J, to which I have referred, explains the reasons which her Honour relied upon in the exercise of her discretion to grant the relief that was sought and order the demolition of the garage structure, and I have quoted (in par [8] above) the extent to which the structure departs from the council's planning controls. 18 One of the considerations in any application to set aside a judgment made in the absence of a party is whether the respondent, in this case, Mr Kelly, has any reasonable prospect of success if the proceedings were to be re-heard. In my view, Mr Kelly has no arguable defence and no prospect of success. I have come to this conclusion for the following reasons. 19 Apart from the significant departures from the approved plans, a number of other considerations are relevant to the exercise of the Court's discretion in this case, as explained by Kirby P in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-340. His Honour relevantly said that planning controls are the enforcement of a public duty imposed by or under an Act of parliament by which parliament has expressed itself on the public interest which exists in the orderly development and use of land. According to Kirby P (at 340): ..there is indicated a legislative purpose of upholding, in the normal case, the integrated and coordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. 20 His Honour went on to say (at 340): But the obvious intention of the Act [the Environmental Planning and Assessment Act] is that, normally, those concerned in development and use of the environment will comply with the terms of the legislation. Otherwise, if unlawful exceptions and exemptions become a frequent occurrence condoned by the exercise of the discretion under s 124, the equal and orderly enforcement of the Act could be undermined. A sense of inequity could be felt by those who complied with the requirements of the Act or who failed to secure the favourable exercise of the discretion under s 124. 21 In the present case I should add that there is a suggestion in the council's evidence that no work was done pursuant to the development consent within the period of five years from 25 November 1999. There is, however, uncontested evidence to the contrary filed on behalf of Mr Kelly by two persons, Mr Ian McPhee and Mr John Bridge. It is not necessary for me to resolve that question. 22 The considerations identified by Kirby P, together with the significant departures from the approved plans, lead to the strong conclusion that Mr Kelly has no prospect of success in any re-hearing. The evidence advanced on behalf of Mr Kelly does not persuade me that the judgment of 18 February 2007 should be set aside. 23 The notice of motion for an order that the judgment be set aside should be refused, but I am prepared to vary the order for postponement made on 18 February 2007 so as to effect a further postponement for a period of four months from today to afford Mr Kelly the opportunity to regularise what has been done if he can. 24 The formal order is that the notice of motion that the judgment be set aside is allowed in part by varying Order 2 made by the Court on 18 February 2007, postponing the operation of Order 1 for a further period of four months from today. 25 I note that there are also two other notices of motion before the Court. One is for the leave of the Court for a short service of the motion to set aside orders and judgment of 18 February 2007. That motion is granted. 26 The third notice of motion is for an order that the general manager of the council be found guilty of contempt of court for not responding to a subpoena for a production of documents. However, that notice of motion does not comply with the rules which require that it be accompanied by a statement of charge and other documents required by the rules and the Court cannot deal with it. 27 HIS HONOUR: Is there anything else? WILLIAMS: Yes, I'd just like to make a comment about the statement of charge. David has a difficulty because in the Bible it does say you cannot charge your brother and the motion is contempt of court so it is the court that actually needs to charge Mr May. I understand you saying you have these rules but it does create a dilemma for David because in the Bible God says you cannot charge your brother and so it is - yes. HIS HONOUR: I cannot deal with that motion for the reason that I have stated. Is there anything else? GRIFFITHS: Yes, council is seeking an order for costs your Honour. WILLIAMS: I'd like to have the costs set aside because basically the council conducted proceedings behind David's back. The fact that they had not followed proper procedure before they had got through to - they had not followed proper procedure before they took the matter to court and as such he's effectively been penalised for council's actions which were contrary to the law. We haven't actually gone through that particular section of the affidavit but it has been outlined in the affidavits. HIS HONOUR: I am only concerned with the costs of the motions - these three motions. WILLIAMS: The costs of these motions. HIS HONOUR: And Mr Griffiths is seeking the costs of the these motions. WILLIAMS: We'd like to suggest - we would like to assert that Mr Griffiths' firm is under contract with Mosman Council and they are contractors and basically representatives of the council in administrative work. First of all there was in the affidavit of the 27/02 of this year with regards to evidence in support of setting aside judgment a point which made reference to there being a requirement in the Local Government Act there is a specific requirement that official documents are signed by the general manager or Mayor plus councillor with a seal as an official action of council. Now if - there's two types of work that the legal officers do, general administrative work and legal action. Now if it's administrative work I believe that we are not liable for the costs to pay their costs because council already budget for administrative work and this action that they have taken could have been resolved. I haven't seen any evidence that it could not have been resolved without conducting proper process and discussing matters with David and accepting the submissions that he put forward to them and actually dealing with the matter properly and administratively through the council processes without actually having to take it to court. So I say our position and our - is that basically this has been administrative work done on behalf of council and not a court action of official court action because it has never gone to - before the councillors. We did take it on 4 March this year was the first time that the councillors' meeting had actually become aware of the court action, the first time it had actually gone before council, the councillors' meeting and even though in the past David has tried to bring the matter and his concerns about the council to the meeting they would not lodge it onto the agenda and certainly there was a councillor comment there that they were quite upset that they had not heard of the matter before. So it is usual practice that it go before - the normal procedure is to go before the council meeting before it gets taken - the official legal action is taken. So we believe that this has been an administrative function and that it's already paid for out of the budgets of council. 28 HIS HONOUR: On the question of costs. Mr Griffiths seeks an order for the costs of the motions. Ms Williams on behalf of Mr Kelly has addressed me on the question of costs. What is sought, however, is legal costs not the council's administrative costs and there is nothing which has been put to me which suggests that the usual order for costs should not be made. 29 Accordingly, there will be an order that the applicant on the motions - the respondent in the proceedings, Mr Kelly, - pay the council's costs of the motions. The final order is that the exhibits may be returned. I hereby certify that the preceding 29 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. 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. 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