New South Wales Supreme Court CITATION : Gray v Woollahra Municipal Council [2004] NSWSC 112 HEARING DATE(S) : 10/12/03, 11/12/03 JUDGMENT DATE : 10 March 2004 JUDGMENT OF : Whealy J at 1 DECISION : Summons dismissed. Reserve the question of costs. The Exhibits may be returned. CATCHWORDS : Administrative law - collateral challenge in Local Court - validity of council order - Environmental Law - need for development consent Environmental Planning and Assessment Act 1979 Justices Act 1902 Protection of the Environmental Administration Act 1991 Crimes (Local Courts Appeal and Review) Act 2001 Swimming Pools Act 1992 LEGISLATION CITED : Land and Environment Court Act 1979 Transport Act 1962 Housing Act 1957 Town and Country Planning Act 1971 Conservation and Land Management Act 1984 (WA) Local Government Act 1919 Dividing Fences Act 1991 Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 Ousley v Regina (1997) 192 CLR 69 Widgee Shire Council v Bonney (1907) 4 CLR 977 R v Toohey (1981) 151 CLR 170 A G v Breckler (1999) 197 CLR 83 at 131 F. Hannan Pty Ltd v Electricity Commission of NSW (No 3) (1985) 66 LGERA 306 at 327 Haasteren v South Sydney Council (2000) LGERA 252 at para 44 Boddington v British Transport Police (1999) 2 AC 143 Bugg v DPP (1993) QB 473 DPP v Head (1959) AC 83 Anisminic Limited v Foreign Compensation Commission (1969) 2 AC 147 Wandsworth London Borough Council v Winder (1985) AC 461 Reg v Reading Crown Court, Ex Parte Hutchinson (1988) QB 384 CASES CITED : Reg v Wicks (1998) AC 92 Quietlynn Limited v Plymouth City Council (1988) 1 QB 114 Craig v South Australia (1995) 184 CLR 163 Dilieto v Ealing London Borough Council (2000) QB 381 Selby & Anor v Pennings & Anor (1998) 19 WAR 520 Re Churchill (2001) FCA 469 Elliott v Knott (2002) FCA 1030 Leung & Anor v The Minister for Immigration and Multicultural Affairs (1997) 150 ALR 76 Harris v McKenzie (1987) 9 NSWLR 149 Kingston v Keprose Pty Limited (1987) 11 NSWLR 404 Jones v Dunkel (1959) 101 CLR 298 Stutchbury v Pittwater Council (1999) 105 LGERA 1 at 17-18 Foster v Sutherland Shire Council (2001) NSWLEC 89 at para 15 Cassaniti v City of Canada Bay Council [2002] NSWLEC 144 (20 August 2002) J. & J. O'Brien Pty Ltd v South Sydney Council (2002) NSWCA 259 PARTIES : Pauline Henrietta Gray v Woollahra Municipal Council FILE NUMBER(S) : SC 10485/03 COUNSEL : Mr V. Gray - Plaintiff Mr J. Maston - Defendant SOLICITORS : Gye Associates - Plaintiff Michell Sillar - Defendant LOWER COURT Local Court JURISDICTION : LOWER COURT 39303/02/198 FILE NUMBER(S) : LOWER COURT Mr B. Kennedy SM JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION WHEALY J WEDNESDAY 10 March 2004 10485/03 - Pauline Henrietta GRAY v WOOLLAHRA MUNICIPAL COUNCIL JUDGMENT 1 HIS HONOUR: Mr & Mrs Ventry Gray occupy a substantial residence at 9 Trelawney Street, Woollahra. They have lived there for a number of years. Mrs Gray is in fact the owner of the property. During the 1990's, a bitter and extended dispute arose between the Grays and their neighbours, the Furbers, who lived at 7 Trelawney Street. One manifestation of the dispute was that the Furbers permitted their dogs to roam through Mrs Gray's property, damaging her camellia trees and other plants. Mrs Gray had placed a number of metal star stakes in the garden bed. She attached barbed wire and barbed wire coils to these metal stakes with a view to keeping the dogs out. The "structure" thus created, extended for about 17 metres. It extended down one side of the property to Trelawney Street itself. The poles on which the barbed wire was spread are described as star picket poles. They were made of steel and driven into the ground to give them stability. The pickets were in close proximity to the common boundary between No 9 Trelawney Street and No 7 Trelawney Street. They were however, entirely within Mrs Gray's land. The stakes varied from approximately one quarter of a metre to approximately one half metre from the boundary line. 2 The "structure" was apparently successful in achieving its object. The dogs were kept out. The local council, however, took an interest. On 4 September 2000 the defendant issued a notice to the plaintiff under s 121H of the Environmental Planning and Assessment Act 1979 (the "EPA Act") giving notice of its intention to make an order under s 121B of the EPA Act. The proposed order was as follows: - 3 "Remove the barbed wire which is positioned along and adjacent to the eastern boundary of the subject property." 4 During September 2000 the plaintiff made a number of representations to the council regarding the proposed order. On 16 October 2001 the defendant issued an "order to demolish and remove barbed wire fence 9 Trelawney Street, Woollahra". The material part of the order was in the following terms: - "Pursuant to Part 6 Division 2A s 121B, of the Environmental Planning and Assessment Act 1979 ("the Act") Woollahra Municipal Council ("council") gives you, as the owner of the above property, an Order in terms of item 2 to the table to Part 6 Division 2A s 121B of the Act. 5 The terms of the Order are: 1. Demolish and remove the barbed wire fence structure ("the building") which is positioned along and adjacent to the eastern boundary of the subject property; 6 Reasons for the Order 1. The building was erected without prior development consent of consent authority in a case where prior development consent is required; 2. The building was erected without a construction certificate in a case where prior construction certificate is required; 3. The building is or is likely to become a danger to the public being persons within the subject property and the adjoining property at 7 Trelawney Street, Woollahra or any visitors to these premises; 4. The building is constructed of barbed wire generally prohibited pursuant to clause 3.12 of Council's Fencing Code adopted by council 25 June 1984; 5. Had the proper development application been submitted to council seeking development consent it would have been refused because: - (a) It does not comply with clause 3.12 of Woollahra Council's code for the control of fencing; (b) It is not in the public's interest that barbed wire fencing be erected; (c) It would set an undesirable precedence which is not in the public interest; (d) Other more sympathetic fencing materials can be employed to achieve the same outcome of providing security to the subject property; and (e) With compliance with council's Exempt and Complying Development Control Plan adequate security fencing can be erected without the need to obtain development consent." 7 The notice specified 28 days from the date of the order as the period of compliance. The notice informed the plaintiff that the council might seek to remedy or restrain any breach of the Act including any failure to comply with the order; and that pursuant to s 125 of the Act it was an offence to fail to comply with the order. The notice warned that penalties might be imposed. Further the notice informed the recipient that pursuant to 121ZK of the Act a person on whom an order is served might appeal against the order to the Land and Environment Court against the order or any specified part of the order. The notice stated that such an appeal must be made within 28 days after the service of the order. 8 The order was signed by Brett Daintry, Manager Building and Compliance. 9 Mr Daintry had written a letter to the plaintiff on 16 October 2001. It accompanied the Order itself. In this letter Mr Daintry had said: - "Please find attached an Order issued after detailed consideration of your representations. This matter in my mind is a simplistic matter. A barbed wire structure which meets the definition of a building under s 4 of the Environmental Planning and Assessment Act 1979 ("the Act") has been erected without council's prior consent where such consent is required under the Act. Council has over a long period of time consistently enforced its general prohibition in relation to the use of barbed wire fence material. Had the proper application been made to council it would have been refused on the basis of public interest having regard to the council's consistent approach in prohibiting the use of this type of material." 10 The letter warned the plaintiff that the council would seek to enforce the order if it was not complied with within the compliance period of 28 days. 11 Gye Associates were the lawyers for the plaintiff. They wrote to the Mayor on 19 November 2001 informing the council that the plaintiff challenged the "validity" of the purported order on the grounds detailed in the September 2000 representations to which I have made earlier reference. The solicitor's letter asserted that the purported order "lacks jurisdictional foundation and is a nullity". It informed the council that any proceedings to enforce the order would be "strenuously opposed". 12 It is common ground that the order was not in fact complied with by the plaintiff. On 5 December 2001 the council issued and posted to the plaintiff a penalty notice. In effect, it alleged that on Monday 3 December 2001, the position was that the plaintiff had failed to remove an unlawful building/barbed wire fence and had failed to comply with an order. There had been an inspection by the council on 3 December 2001, which revealed that the structure was still in existence and had not been removed as required by the order. The penalty notice was $1,500. The plaintiff did not pay the fine contained in the penalty notice. 13 There next ensued correspondence between the council's solicitors, Michell Sillar, and the plaintiff regarding the threat of civil injunctive action proposed by the council in Land and Environment Court proceedings. The plaintiff responded to this threat by writing an extensive letter to Michell Sillar dated 18 December 2001. In it, she repeated the thrust of the September 2000 submissions. They were that there was no jurisdiction in the council to make the order of 16 October 2001. This was because consent was not required for the structure which had been created by the attachment of the barbed wire to the star picket stakes. The plaintiff repeated her reference to the authority of the Court of Appeal decision in Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302. The plaintiff also described the long history of the dispute that had arisen between her neighbours and herself including the repeated release of "canine trespassers" on to her property. The plaintiff maintained that the council had no jurisdiction to issue the order; and that if it did, in the appropriate exercise of its discretion, it ought not to have done so. She said that she would strenuously defend any proceedings brought against her in respect of the fine and otherwise sought to persuade the solicitors to the validity of the point of view expressed in her letter. 14 Further correspondence then ensued between Michell Sillar and the plaintiff. The solicitors adhered to the instructions they had been given namely that they would commence Class 4 proceedings in the Land and Environment Court unless the structure was demolished. The matter moved to a head in April 2002. Finally, on 6 April 2002 the plaintiff wrote to Michell Sillar and informed them that the barbed wire had been removed. The plaintiff stated that this action had been taken without any admission that the council was entitled to make an order requiring its removal; and without prejudice to her right to challenge the validity of any action taken by the council in any proceedings in any court at a later date. On 9 April, Michell Sillar sent an undertaking to the plaintiff for her signature. The plaintiff however, refused to sign the undertaking, which was to the effect that the plaintiff would not "re-erect the barbed wire fence". On 15 April 2002 an information was laid at Waverley Court charging that on 3rd day of December 2001, "Pauline Gray failed to remove unlawful building". The information referred to s 1251 of the Environmental Planning and Assessment Act. A summons was issued returnable for 28 May 2002 at Waverley Court. 15 In response to a request for particulars and for further information, the council nailed its colours to the mast at an early stage. In this letter, signed by Mr Daintry, the council said: - "This fine was issued for the offence of failure to comply with the terms of council's Order within the period specified upon the Order. The Local Court has no jurisdiction to review the terms of the order issued under 121B of the Environmental Planning and Assessment Act 1979. It is not within the Local Court's jurisdiction to review the validity of the Order and as you are aware, it is set out upon the Order, any appeal against the Order itself should have been made at the Land and Environment Court within 28 days of the date of service of the Order. The validity of the Order as issued is beyond appeal in accordance with s 121ZK(3) of the Act. The only proof required to be provided by council before the Local Court is that the Order was issued, that no appeal was made by you to the Land and Environment Court against the terms of the Order within 28 days as permitted by the Act and that you failed to comply with the terms of the Order within the period for compliance." 16 The letter went on to discuss the details of the proposed proceedings particularly in regard to the evidence likely to be adduced on the council's behalf. 17 Mr Daintry wrote a further letter on behalf of the council on 8 July 2002. Again it was addressed to the plaintiff and dealt with details in relation to the proposed hearing of the summons. The letter included the following: - "Notwithstanding council's position that the Local Court has no jurisdiction to revisit the terms of the Order or the validity of the Order, as previously advised, council clearly considered at the time of issue of the Notice of Intention, and having considered your representations prior to issuing the Order, that the barbed wire fence was a "structure" and thus by definition a "building". We understand that you contend that the barbed wire fence does not satisfy the definition of a "building" under the Act and that accordingly, council had no jurisdiction to issue the order. This was the basis of your representations which council considered prior to issuing the Order. Council did not accept your representations as being valid. Council obtained a legal opinion to the same effect and in the circumstances of the case holds the same position today." 18 Mr Daintry's letter then proceeded to explain candidly and fairly the reasoning behind the council's views and why it was that the council took the view that it was the issue of barbed wire in the structure which predominantly led council to the actions it had taken. The letter concluded: - "We would be acting improperly if we sought to withdraw the fine and discontinue proceedings given the weight of evidence and the chronology of events in this matter. Our position is that if a guilty plea is made we would seek no costs and no increase in the penalty imposed by the fine." 19 The proceedings at Waverley Court were heard before Mr Kennedy, magistrate. Mr Daintry was permitted to represent the informant and the plaintiff was represented by her husband, an experienced barrister, Mr Ventry Gray. The evidence concluded on that day and the matter was stood over until 3 February 2003 for decision. The parties were directed to file written submissions. Copies of those written submissions have been placed before me. They are extremely lengthy. It is fair to say that they encompass many of the matters that have been argued before me. 20 On 3 February 2003 the learned magistrate delivered his decision. It may be helpful if I set out at this stage certain portions of his Worship's decision. He said: - "The submissions on behalf of the defendant relate to two primary areas. The first is that this Court has the power to look behind the Order and scrutinise its validity and the second primary ground is that the Order is not valid on a number of grounds which have been detailed in the submissions. It is contended on behalf of the council that it is a simple matter for this Court to determine whether the Order has been breached and it is too late to challenge the validity of the Order and this should have been done under different provisions of the Land and Environment Court." 21 The learned magistrate then looked to the legislation contained in the Environmental Planning and Assessment Act 1979, especially 121ZK. While noting the right of appeal given to the Land and Environment Court in relation to orders made by council, he noted that there was no right of appeal to a Local Court under the division. His Worship then said: - "Now the defence contend that this Court can go behind the Order and determine such things as whether the barbed wire fence was a building or a structure and other matters such as a failure of council to make certain decisions prior to the making of the Order. The defence claims that there is authority which supports this proposition and cites a number of decisions including Stutchbury v Pittwater Council (1999) NSWLEC 177 and Lederer & Ors v The Sydney County Council 2001 NSWLEC 272. Stutchbury is concerned with the nature and extent of a council to give reasons associated with an Order under s 124 and Lederer is authority primarily on the issue of adequate reasons being given for Orders under s 121(b). In this Court's view, neither of these authorities or any other authority that's been cited, supports the defendant's contention that a Local Court dealing with an alleged breach of an Order under 125 can go behind the Order in the manner suggested. This would be tantamount to a second right of appeal. Nor does the legislation support such a contention. Indeed the legislation spells out that the Land and Environment Court is the court with the jurisdiction when considering an appeal." 22 The learned magistrate then addressed the ingredients of the offence. In effect, he found that the Order was valid on its face. He came to the conclusion, as he was clearly entitled to, that the Order had not been complied with. He then said that these matters constituted "the ingredients" of the offence and that he was satisfied that the council had established those matters beyond reasonable doubt. He found the offence proven. 23 The plaintiff was then convicted and fined $300.00 with court costs of $59.00. 24 On 25 February 2003 the plaintiff filed a summons by way of appeal in this Court. The orders sought in the summons are: - "1. An order setting aside the conviction entered against the appellant by the Local Court at Waverley on 3 February 2003 of the offence of failing to comply with an Order of the Woollahra Council contrary to s 125(1) of the Environmental Planning and Assessment Act and the penalty imposed by way of sentence in respect of that conviction; 2. Alternatively, an order discharging the plaintiff without conviction; 3. Costs 4. Such further or other orders as may be just." 25 The appeal was instituted under Part 5 of the Justices Act 1902 as it then stood. An appeal to the Supreme Court is permitted in favour of a person against whom any conviction or order was made, or sentence was imposed, by a magistrate in summary proceedings. The appeal may be brought on grounds that involve questions of law alone or grounds that involve questions of mixed law and fact, but only with the leave of the Supreme Court; and on the ground that the conviction order or sentence cannot be supported having regard to the evidence. 26 The power of the Supreme Court is stated in s 109. The Court may after hearing an appeal, determine it by dismissing the appeal or doing any one or more of the following: - "(a) Confirming, quashing, setting aside or varying the conviction, order or sentence appealed against or any part of it, (b) Increasing or reducing the sentence appealed against, (c) Making such other order as it thinks just, (d) Remitting the matter to the magistrate who made the conviction or order, or imposed the sentence, to hear and determine the matter of the appeal." 27 Section 104A of the Justices Act provides that, despite s 104, a person may not appeal to the Supreme Court against a conviction or order made, or sentence imposed, by a magistrate in proceedings relating to an environmental offence, except with the leave of the Supreme Court. This provision does not impact upon the present appeal. An environmental offence is defined by s 101 of the Justices Act to mean an offence against the environment protection legislation as defined in the Protection of the Environment Administration Act 1991. The present offence does not fall within the purview of the legislation. 28 For completeness I should add that the relevant provisions of the Justices Act which I have identified were the subject of legislative amendment which commenced on 7 July 2003. This was the Crimes (Local Courts Appeal and Review) Act 2001. This legislation had the effect of removing the right of appeal from a Local Court conviction for an offence under s 1251 of the EPA Act from the Supreme Court to the Land and Environment Court. The new legislation, however, contains saving and transitional provisions in Schedule 1. The effect of these is that an appeal commenced under Part 5 of the Justices Act 1902, prior to the 7 July 2003, is to be dealt with pursuant to the prior legislation. Grounds of Appeal 29 There are three grounds of appeal relied upon by the plaintiff. I shall set these out in full: - "A. The Court Before Which A Prosecution Under Section 125(1) Is Brought For Failure To Comply With An Order Made By A Council Has Jurisdiction To Review The Validity Of The Council's "Order" 1. The Magistrate decided that he had no jurisdiction to consider the merits of the Plaintiff's defence to the charge brought against her. The Magistrate held that the Local Court had no jurisdiction to review the validity of the Council's purported "order" because the only manner provided for challenging the validity of the Council's order was by appeal to the Land and Environment Court under section 121ZK of the Environmental Planning and Assessment Act; these proceedings were not such an appeal; the Local Court therefore had no jurisdiction to set aside an "order" made by the Council and therefore the proceedings had to be conducted on the basis that the "order" was valid. 2. The Magistrate's decision is erroneous in law. These proceedings are not an appeal under section 121ZK and the statutory provision applicable to such appeals are irrelevant to these proceedings. 3. There is no privative provision in the Environmental Planning and Assessment Act which makes a Council's order under section 121B conclusively presumed valid if not challenged and set aside or varied under section 121ZK. Therefore an "order" purportedly made by a Council under section 121B without jurisdiction does not acquire validity and immunity from challenge merely because it was not the subject of an appeal under section 121ZK. 4. Both the Local Court in these proceedings and this Court in this appeal have jurisdiction and each is obliged to consider whether the purported "order" on which the prosecution is based was validly made. If the Court concludes that the purported "order" was invalidly made, then the Court must conclude that the premise on which the proceedings are brought has not been proved and therefore the offence has not been proved and the proceedings must be dismissed. B. The Purported "Order" Was Invalid 5. The "order" of the Woollahra Council with which the Plaintiff was charged with failing to comply was invalid and a nullity; 6. The reasons why the purported "order" was a nullity are: (a) The Council purported to issue the "order" under section 121B of the Environmental Planning and Assessment Act. Section 121B enables a Council to make an order in respect of a "building or structure". The barbed wire on the Plaintiff's land was not a "building or structure" for the purposes of section 121B. Therefore section 121B provided the Council no basis of jurisdiction to make the "order" it purported to make. (b) Section 121B of the Environmental Planning and Assessment Act enables a Council to make an order in respect of a building "which is or is likely to become a danger to members of the public". The evidence discloses that "the public" had no access to the Plaintiff's land and could not be affected by any barbed wire on the Plaintiff's land. The Council purported to justify invoking this head of jurisdiction by describing as "members of the public" persons within the subject property (i.e. the Plaintiff's land) and the adjoining property at 7 Trelawney Street, Woollahra. Persons within the Plaintiff's land and persons within adjoining private land are not "members of the public" for the purposes of section 121B. Therefore, this claimed head of power provided the Council no basis of jurisdiction to make the "order" it purported to make. (c) Section 121J of the Environmental Planning and Assessment Act requires a Council to "consider" any representations made by a person who would be affected by a proposed order before making the order. The Council officer who made the order could have been called as a witness but was not called to give evidence. There was no evidence that in fact the Council had "considered" representations made by the Plaintiff and there was some evidence (in the form of an e-mail from the Council officer who made the order) that in truth he did not give the Plaintiff's representations any consideration. (d) The Council took into consideration when deciding to make the purported "order" irrelevant considerations, namely that the Council wanted to bring to an end a matter which had caused the Council embarrassment by reason of failures to respond to correspondence from the NSW Ombudsman and had distracted the resources of Council from other some important matters and made the purported "order" to "make amens" (sic) for previous failures to respond to the Ombudsman. These were irrelevant considerations and should not have been taken into account by the Council. (e) In making the purported "order" the Council relied on the fact that use of barbed wire for fences was inconsistent with its Fencing Code but the Fencing Code is expressed to apply to dividing fences and the barbed wire on the Plaintiff's land was not a dividing fence. The unchallenged evidence was that the barbed wire was attached to garden stakes approximately ¼ to ½ metre within the Plaintiff's land, it was discontinuous and not in a straight line although the boundary line at that point was a straight line. There was evidence that the barbed wire did not "separate and bound" the Plaintiff's land and therefore was not a "dividing fence". Therefore the Council's Fencing Code was irrelevant. 7. Because the Local Court decided that it did not have jurisdiction to examine the validity of the purported "order" made by the Woollahra Council and had to proceed on the basis that the purported "order" was valid according to its terms, the Local Court did not consider any of these points. 8. By failing to examine the validity of the purported "order" the Local Court misdirected itself in law and failed to perform its duty to consider whether all constituent components of the alleged offence had been proved. C. Alternatively, The Plaintiff Should Have Been Discharged Without Conviction 9. Alternatively, if the Plaintiff was guilty of the offence as charged, the circumstances are such that the Plaintiff should have been discharged without conviction. 10. The reasons why such a discharge without conviction should have been ordered are: (a) Before the facts constituting the offence occurred the Plaintiff wrote to Woollahra Council explaining in detail why the matters complained of did not fall within the Council's statutory jurisdiction or, alternatively, why the Council should exercise its discretion to take no action in respect of such matters and the Council never responded to such correspondence; (b) The grounds upon which the Plaintiff contended that the matters complained of did not fall within the Council's statutory jurisdiction were honestly and reasonably held; (c) Before the prosecution was instituted, in response to an invitation by them to do so, the Plaintiff wrote to the Council's solicitors explaining in detail why the matters complained of did not fall within the Council's statutory jurisdiction or, alternatively, why the Council should exercise its discretion to take no action in respect of such matters and the Council's solicitors never responded to such correspondence; (d) Before the prosecution was instituted the Plaintiff had in fact complied with the alleged "order" (without admitting the validity of the alleged "order") (e) In the circumstances no rational purpose is served by the entry of a formal conviction against the Plaintiff;" 30 It will be seen from the foregoing that the principal questions involved in the present appeal are these: - "(a) Did the Local Court have jurisdiction to examine the validity of the purported "Order" made by the council on the basis of which the prosecution was instituted? (b) If so, was the structure on the plaintiff's land a "building" or "structure" for the purposes of the Environmental Planning and Assessment Act 1979 in relation to which the council had jurisdiction to make the Order it purported to make? (c) If not, was the purported Order made by the council invalid and a nullity?" 31 With the consent of the plaintiff, the defendant before me was permitted to file a notice of contention. The effect of this is that if I find that the learned magistrate erred in holding that he was prevented from going behind the order made by the council; and further, if I find that the grounds of appeal raise questions of law, or questions of mixed fact on law, I should not in that event remit the matter to the magistrate but find that the conviction was properly made on the grounds stated in the notice of contention. These grounds are: - "1. The structure the subject of the Order was a building within the definition in s 4(1) of the EPA Act 2. Item 2 to the Table to s 121B EPA Act permits an order to be made in any of the circumstances (a) to (d) listed in the Table. Any one of the circumstances suffices. In the present case, the structure had been erected without prior development consent where prior development consent was required. 3. The council by its delegate considered the representations of the plaintiff prior to the making of the order. 4. There is no evidence that the council took into account an irrelevant consideration when deciding to make the order, namely the council's desire to bring an end of the matter, which was the subject of correspondence from the NSW Ombudsman. 5. The council was entitled to take into account its Fencing Code in considering whether to make the order and the Fencing Code was not an irrelevant consideration. It was reasonably open to the council to decide that the structure could be considered to be a dividing fence for the purpose of the Fencing Code." Proceedings in the Supreme Court 32 The proceedings were heard before me on 10 and 11 December 2003. In view of the importance of the principal questions involved in the appeal, I directed that counsel for the parties should research the matter carefully and deliver written submissions including, in particular, results of their research. Written submissions were received on 19 and 22 December 2003. Subject to the receipt of those written submissions, I reserved my decision. 33 The evidence before me included a series of photographs of the subject land and of the relevant "structure". The plaintiff tendered a folder containing considerable material relating to the history and conduct of the matter before the council. I have had the benefit of the transcript of the proceedings before the learned magistrate and copies of the submissions that were before him at the time. I also have a copy of the local Woollahra Environmental Plan 1995, the relevant council codes and the Woollahra Residential Development Control Plan. Environmental Planning and Assessment Act 1979 34 It is clear that a resolution of a number the issues in this appeal involve consideration of various provisions in the Environmental Planning legislation. I shall briefly refer to those sections in this part of my decision, setting out the terms where it is necessary to do so. I shall refer to the legislation as "the Act" or "the EPA Act". 35 The starting point is Part 4 Division 1 of the Act. Section 76A states that if an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) Such a consent has been obtained and is in force, and (b) The development was carried out in accordance with the consent and the instrument. 36 "Local development" is development that is described in s 76A(1) and that is not "State significant development". An environmental planning instrument may provide that local development that can be addressed by specified pre-determined development standards is "complying development" (s 76A(5)). 37 Section 76B deals with development that is prohibited. If an environmental planning instrument provides that development cannot be carried out on land without development consent, or that specified development is prohibited on land to which the provision applies, a person must not carry out the development on the land. 38 Section 79C of the Act lists a number of matters which a consent authority is to take into consideration as being relevant to the development the subject of any development application. These include: - "(a) The provisions of: - (i) any environmental planning instrument, and (ii) any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority, and (iii) any development control plan, and (iv) deregulations (to the extent that they prescribe matters for the purposes of this paragraph), apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest." 39 The Woollahra Local Environmental Plan 1995 was gazetted on 10 March 1995 and has been amended from time to time. The aims and objectives of the Plan are set out in paragraph 2. They are, as would be expected, very broad and widely based considerations. Clause 8 of the Plan establishes development control tables for zones applying to certain lands within the area. Paragraph 5 of Clause 8 provides that the council shall not grant consent to the carrying out of development on land to which this Plan applies unless the council is of the opinion that the carrying out of the development is consistent with such objectives of this Plan and of the zone within which the development is proposed to be carried out as apply to that development. There is then created a development control table for "zone 2(b) – "residential B" zone". Clause 4 of the table identifies development which may be carried out without development consent. Clause 5 identifies development which may be carried out only with development consent; and clause 6 describes development which is prohibited. Any development other than development included in items 4 or 5 is prohibited development. Relevantly, development for the purposes of "dwelling houses" is development which may be carried out only with development consent. 40 Clause 26 of the Plan imposes the need for consent where a person wishes to demolish or alter a building or work or place that is a heritage item. Clause 28 provides that a person shall not in respect of a heritage conservation area demolish or alter a building or work within the area or erect a building on or sub-divide land within the area, except with the consent of the council. The latter clause is relevant since No 9 Trelawney Street is located in a heritage conservation area. 41 Other documents of relevance include the development control plan for Exempt and Complying Development. Exempt development is development of minor environmental impact; and it is, relevantly, listed in Schedule 1 of this Development Control Plan. Such development may be carried out without development consent. There are detailed criteria set out in the DCP. Development described as "side and rear fences" is included in the DCP. It does not include fences required by the Swimming Pools Act 1992, but otherwise establishes criteria which will appropriately enable, for example, side fences to be erected without consent. One of those criteria is that it must be constructed of timber, metal or light weight materials "but must not be barbed wire". 42 In the Woollahra Residential Development Control Plan (Exhibit 3) there is contained "performance criteria for fences and walls". In Part 5, dealing with general controls, there is a section which stipulates that the use of barbed wire is not permitted for fences or walls. In addition, Woollahra Council has a fencing code. For side and rear boundary fences, there is a general prohibition on barbed wire as a material for construction. The same applies to front fences and those between the street alignment and the front elevation of buildings (see pages 2 and 3 of the code). 43 It is clear from the foregoing that an important consideration is the meaning of development in the EPA Act. In s 4(1) "development" means: "(1) (a) the use of land, and (b) the sub-division of land, and (c) the erection of a building, and (d) the carrying out of a work, and (e) the demolition of a building or work, and (f) any other act matter or thing referred to in s 26 that is controlled by an environmental planning instrument but does not include any development of a class or description prescribed by the regulations for the purposes of this development." 44 "Building" includes part of a building and any structure or any part of a structure but does not include certain specified structures. These are not relevant for present purposes. 45 Section 4(2) of the Act is in these terms: - "(2) A reference in this Act to: (a) the use of land includes a reference to a change of building use, and (b) the erection of a building includes a reference to: (i) the rebuilding of, the making of alterations to, or the enlargement or extension of, a building, or (ii) the placing or relocating of a building on land, or (iii) enclosing a public place in connection with the construction of a building, or (iv) erecting an advertising structure over a public road, or (v) extending a balcony, awning, sunshade or similar structure or an essential service pipe beyond the alignment of a public road, and (c) the carrying out of a work includes a reference to: (i) the rebuilding of, the making of alterations to, or the enlargement or extension of, a work, or (ii) enclosing a public place in connection with the carrying out of a work, and (d) a work includes a reference to any physical activity in relation to land that is specified by a regulation to be a work for the purposes of this Act but does not include a reference to any activity that is specified by a regulation not to be a work for the purposes of this Act, and (e) the demolition of a building or work includes a reference to enclosing a public place in connection with the demolition of a building or work, and (f) the carrying out of development includes a reference to the use of land or a building, the subdivision of land, the erection of a building, the carrying out of a work, the demolition of a building or work or the doing of any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument." 46 Part 6 of the Act deals with "implementation and enforcement". Division 2A of Part 6 deals with orders that may be given by a consent authority. Section 121B specifies that a council may give an order to a person to do or refrain from doing a thing specified in the table if the circumstances specified opposite in column 2 of the table exists; and the person comes within the description opposite it in column 3. For example, relevantly to the present matter, item 2 in column 1 describes an order "to demolish or remove a building" in circumstances where the building is erected without prior development consent of the consent authority. It applies where "prior development consent is required". There is a second category of circumstances where the building is or is likely to become "a danger to the public". The order is to be addressed to the owner of the building. There are, as might be imagined, a great number of other types of orders that may be made under the Table but it is not necessary to describe these for the purposes of this decision. 47 Section 121H requires that "notice" be given of the proposed order. This notice must include the terms of the proposed order and the period proposed to be specified as the period in which the order is to be complied with. The notice must also indicate that the person to whom the order is to be given may make representations as to why the order should not be given or as to the terms of or period for compliance with the order. Section 121I entitles a person, relevantly affected, to make representations concerning the proposed order and to do so by a barrister, solicitor or agent. The council is required "to hear and to consider any representations" made under s 121J. Section 121K provides that, after hearing and considering any representations made concerning the proposed order, the person who gives the order may determine to give an order in accordance with the proposed order or to give an order in accordance with modifications to the proposed order; or not to give an order. 48 Section 121L requires that a person who gives an order must give the person to whom the order is directed "the reasons for the order". The reasons may be given in the order or in a separate instrument. Section 121N requires that a person who gives an order must, in giving a person notice of the order, state that the person may appeal to the Land and Environment Court against the order or a specified part of the order, and specify the period within which an appeal may be made. Section 121U provides that an order is given by serving a copy of the order on the person to whom it is addressed and that it takes effect from the time of service or a later time specified in the order. Section 121ZK deals with the matter of appeals concerning orders. It provides: - "(1) A person on whom an order is served may appeal against the order to the Court. (2) However, a person may not appeal against order No 6 in the Table to s 121B if the order is given by an authorised fire officer (as referred to in section 1212C(6). (3) The appeal must be made within 28 days after the service of the order on the person or, if an order is given under s 121R within 28 days after the service of the order given under s 121R on the person. The person may make an appeal within the later period whether or not the person has made an appeal within the earlier period. (4) On hearing an appeal, the Court may: (a) revoke the order, or (b) modify the order, or (c) substitute for the order any other order that the person who gave the order could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with order as the Court thinks fit, or (f) make any other order with respect to the order as the Court thinks fit." 49 Section 125 creates offences. It too is continued in a division of the part of the Act dealing with "implementation and enforcement". Sub-section 1 of s 125 is in the following terms: - "(1) Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Director-General, a Council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act." 50 Section 127 of the Act provides that proceedings for an offence may be taken before a Local Court constituted by a Magistrate sitting alone or before the Land and Environment Court in its summary jurisdiction. Section 127A provides for the issue of penalty notices for certain offences. The first question – did the Magistrate err in holding that it was not open to him to consider the validity of the council's order 16 October 2001? 51 This is an important and difficult question. Neither Mr Gray, who appeared for his wife, nor Mr Maston who appeared for the defendant, pointed to any coherent and cogent line of authority to answer the question posed in the appeal. Mr Gray made brief reference to the decision of the High Court in Ousley v Regina (1997) 192 CLR 69. This decision, it is true, does support the plaintiff's argument in the present matter. Ousley, however, was essentially concerned with the limited nature of the enquiry that can be made into the validity of warrants. At 520-521 Gaudron J said: - "Once it is accepted, as it must, that even though issued by the Supreme Court, a warrant under s 4A(1) of the Act is not a judicial order but an instrument made in the discharge of an administrative function, it follows that its validity may be challenged in collateral proceedings no matter the court in which those proceedings are heard. It is to be remembered, however, that enquiry as to the validity of a warrant is a limited enquiry. Validity depends upon the warrant having been regularly issued, not on the sufficiency of the materials supporting the application for its issue. See Murphy v R (1989) 167 CLR 94 at 106." 52 The plaintiff also made reference to the case of Widgee Shire Council v Bonney (1907) 4 CLR 977. This case concerned a challenge on appeal to a byelaw the breach of which had resulted in a conviction. In that case, the High Court did take for granted that a byelaw could be challenged collaterally. Isaacs J however expressly recognised the proposition when he said (at 905-906): - "It is true that section 187, now replaced by section 188 of the Local Authorities Act 1902, provides a mode of testing the validity of a byelaw. Any resident ratepayer may upon the prescribed conditions apply to the Court to quash the by-law for invalidity. Even without resorting to that procedure a person charged with contravention of a by-law may, as in this case, defend himself if he can demonstrate its invalidity." 53 The plaintiff cited other authorities to demonstrate that collateral attacks were permitted in relation to legislative and prerogative power exercises (R v Toohey (1981) 151 CLR 170) and against decisions of the Superannuation Complaints Tribunal (A G v Breckler (1999) 197 CLR 83 at 131). 54 The plaintiff conceded that no case had been found where a defendant to a charge under s 125 of the EPA Act of failing to comply with an order under section 121(b) had defended the prosecution on the basis that the order was invalid. 55 Mr Maston, on behalf of the defendant, was similarly unable to point to any authority either directly in point or of assistance by way of close analogy. The defendant referred to the decision of the NSW Court of Appeal in F. Hannan Pty Ltd v Electricity Commission of NSW (No.3) (1985) 66 LGERA 306 at 327. The passage cited in the judgment of McHugh JA (as he then was) made it clear that the EPA Act prescribes exhaustively the civil remedies available in respect of a breach of the Act and that proceedings for breach can only be brought in the Land and Environment Court: ss 123 and 124 of the EPA Act and ss 20 and 21 of the Land and Environment Court Act 1979. These provisions made it plain that a decision made in breach of the Act cannot be attacked in civil proceedings in other courts or by way of collateral proceedings. This decision, as was conceded, is not really to the point in the present case. There are no provisions in either piece of legislation specifically ousting the jurisdiction of the local court in relation to the present prosecution. 56 Mr Maston made reference to remarks in a decision given by Bignold J in Van Haasteren v South Sydney Council (2000) 109 LGERA 252 at paragraph 44. His Honour there had said that if criminal enforcement action is taken in respect of an order "the person who has received the order may be able to defend such action by challenging the validity of the order in those proceedings." This remark was made obiter and is not the consequence of any reasoned analysis. Nor was it made by reference to any other analogous authority. There have been subsequent cases referring to this case in the Land and Environment Court but, again, none have examined or analysed the situation. 57 It was for this reason that I asked both counsel to research the matter thoroughly and to see whether there might be useful or persuasive authority in other jurisdictions which could bear on the resolution of the important point at issue. Neither counsel, however, in the course of subsequent written submissions was able to advance the matter essentially beyond the situation I have here described. This, I have to say, is a matter of some regret. My own research has indicated that there is a reasonably considerable body of recent authority in England which is highly relevant to and persuasive of the issue in this appeal. Moreover, that authority itself has been commented upon in the Full Court of Western Australia and in the Federal Court of Australia. The failure of counsel to research the matter thoroughly has meant that I have not had the advantage of appropriate submissions from counsel in relation to this additional material. Without being overly critical of counsel, I do need to say that the Court needs as much assistance as possible from experienced counsel when matters of substantial importance are at issue; and where the benefits of counsel's research, if thoroughly and carefully carried out, are brought forward to assist the Court in its determination. Regrettably, that did not happen in the present matter, at least not to an adequate extent. The Situation in the United Kingdom 58 There have been a number of decisions in both the House of Lords and the Divisional Court in England which are very relevant to the present appeal. In relation to general principles, perhaps the most significant is the recent decision of the House of Lords in Boddington v British Transport Police (1999) 2 AC 143. 59 Mr Boddington was convicted by a stipendiary magistrate for the offence of smoking a cigarette in a railway carriage. Smoking was prohibited on the train, contrary to byelaw 20 made under the Transport Act 1962. This Act gave a power to make byelaws to regulate the "use and working of and travel on the railways". A byelaw was passed making it an offence for a person to smoke in any vehicle or elsewhere upon the railway where smoking was expressly prohibited by the Board pursuant to the placement of a notice. The byelaw itself did not prohibit any activity: a further administrative act was required (in the form of a posting of a notice) before a person came at risk of committing an offence. 60 Mr Boddington attempted to put forward as a defence an argument that the decision of the rail company to post notices in all the carriages of its train prohibiting smoking was ultra vires its powers to bring byelaw 20 into operation. He argued before the magistrate and the divisional court that the power conferred by the Transport Act 1962 was only a power to regulate the use of the railway in respect of smoking on carriages; and that complete prohibition of smoking on all carriages by the placing of no smoking notices in all carriages went beyond permissible regulation. He argued that the unlawfulness of the decision to post these notices had the effect of nullifying their validity, so that byelaw 20 was not properly brought into operation. This, he argued, gave him a defence to the offence with which he had been charged. The primary defence, therefore, raised the question of the extent to which a defendant to a criminal charge may defend himself by pointing to the unlawfulness of subordinate legislation, or an administrative act made under that legislation, the breach of which is alleged to constitute the offence. 61 The magistrate convicted Mr Boddington and fined him a small sum by way of penalty. Mr Boddington then appealed to the divisional court which held that he was not entitled to put forward his public law defence in the criminal proceedings against him. 62 In the House of Lords, Lord Irvine of Lairg LC and Lord Steyn delivered speeches. Lord Hoffman, Lord Slynn of Hadley and Lord Browne-Wilkinson agreed with both of these speeches, subject to one reservation expressed by Lord Browne-Wilkinson to a point made by the Lord Chancellor. 63 The House of Lords held that it was open to a defendant in criminal proceedings to challenge the board and its legislation, or an administrative decision made thereunder, where the prosecution was premised on its validity unless there was a clear parliamentary intent to the contrary. Their Lordships held, further, that there was no distinction in this respect between cases of substantive and procedural invalidity. In this regard, they overruled Bugg v DPP (1993) QB 473. As it turned out, however, Mr Boddington lost on the facts of the case and it was held that the byelaw was "intra vires". 64 In his speech, Lord Irvine identified the issues as being whether public law defences were able to be deployed in a criminal court as a defence to a criminal charge. He referred to Director of Public Prosecutions v Head (1959) AC 83 where the House of Lords had, by a majority, upheld the quashing of the conviction on a public law point which the prosecution had conceded at trial existed; and which might be successfully challenged on application for certiorari or writ of habeas corpus. Lord Irvine considered that, had the defendant in that matter led the evidence in the trial, the majority in that case would have considered that the trial court, upon receipt of the evidence, would have been obliged to have determined whether the defendant had made out a defence on the basis of the point. 65 The Lord Chancellor considered that the views of the majority in Director of Public Prosecutions v Head had acquired greater force in the light of the development of the basic principles of public law since that case was decided. He referred especially to the decision of the House of Lords in Anisminic Limited v Foreign Compensation Commission (1969) 2 AC 147. This had made obsolete the historic distinction between errors of law on the face of the record and other errors of law. 66 Lord Irvine also made reference to Wandsworth London Borough Council v Winder (1985) AC 461. That case concerned rent demands made by a local authority landlord on one of its tenants. The local authority, pursuant to powers under the Housing Act 1957, resolved to increase rents generally. The tenant refused to pay the increased rent and was sued by the local authority. He sought to defend himself by pleading that the resolutions and notices of increase were ultra vires and void on the grounds that they were "unreasonable". The local authority sought to strike out the defence on the grounds that the tenant was debarred from challenging the conduct of the local authority other than by way of application for judicial review under R.S.C., Ord. 53. The House of Lords ruled that Mr Winder was entitled as of right to challenge the authorities decision by way of defence in the proceedings. The decision was based squarely on "the ordinary rights of private citizens to defend themselves against unfounded claims". As a matter of construction, those rights had not been swept away by the procedural reforms introducing the new R.S.C. Ord. 53 (pages 509F-510C). Lord Irvine said at p 157: - "In my judgment, precisely similar reasoning applies, a fortiori, where a private citizen is taxed not with private law claims which are unfounded because based upon some ultra vires decision, but with a criminal charge which is unfounded, because based upon an ultra vires byelaw or administrative decision." 67 His Lordship referred in that regard with approval to the decision of the divisional court in Reg. v Reading Crown Court, Ex Parte Hutchinson (1988) QB 384. 68 His Lordship then dealt with Bugg's case and gave extensive reasons why he thought it ought be overruled. He concluded: - 69 "I can think of no rational ground for holding that a magistrate's court had jurisdiction to rule on the patent or substantive invalidity of subordinate legislation or administrative act under it, but has no jurisdiction to rule on its latent or procedural invalidity, unless a statutory provision has that effect." 70 Finally, his Lordship made the point that, in every case, it is necessary to examine the particular statutory context to determine whether a court hearing a criminal or civil case has jurisdiction to rule on a defence based upon arguments of invalidity of subordinate legislation or an administrative act under it. There were, he said, situations in which Parliament may legislate to preclude such challenges being made, in the interest, for example, of promoting certainty about the legitimacy of administrative acts on which the public may have to rely (page 160). 71 In this context, Lord Irvine made specific reference to the recent decision of the House of Lords in Reg v Wicks (1998) AC 92. His Lordship said this was an example of a particular context in which the administrative act triggering consequences for the purpose of the criminal law was held not to be capable of challenge in criminal proceedings, but only by other proceedings. 72 Reg v Wicks concerned an enforcement notice issued by a local planning authority and served on the defendant under the then current version of s 87 of the Town and Country Planning Act 1971. The notice alleged a breach of planning control by the erection of a building and required its removal above a certain height. One month was allowed for compliance. The appellant appealed against the notice to the Secretary of State, under s 174 of the Town and Country Planning Act 1990, but the appeal was dismissed. The appellant still failed to comply with the notice and the local authority issued a summons alleging a breach of s 179(1) of the Act of 1990. In the criminal proceedings which ensued, the appellant sought to defend himself on the ground that the enforcement notice had been issued ultra vires, maintaining that the local planning authority had acted in bad faith and had been motivated by irrelevant considerations. These public law grounds were not grounds that were available in the appeal to the Secretary of State. The judge ruled that these contentions should have been made in separate proceedings for judicial review and that they could not be gone into in the criminal proceedings. The appellant then pleaded guilty and was convicted. Lord Irvine said (at p 160): - "This House upheld his conviction. Lord Hoffman, in the leading speech, emphasised that the ability of a defendant to criminal proceedings to challenge the validity of an act done under statutory authority depended on the construction of the statute in question. This House held that the Town and Country Planning Act 1990 contained an elaborate code including provision for appeals against notices, and that on proper construction of s 179(1) of the Act all that was required to be proved in criminal proceedings was that the notice issued by the local planning authority was formally valid." 73 His Lordship then considered another case – Quietlynn Limited v Plymouth City Council (1988) 1 QB 114 when, having regard to the particular statutory context, a similar result was reached. 74 His Lordship however, emphasised that there was "a strong presumption" that Parliament would not legislate to deny to individuals affected by legal measures promulgated by executive public bodies a fair opportunity to challenge these measures and vindicate their rights in court proceedings. It was his view that only the clear language of a statute could take away the right of a defendant in criminal proceedings to challenge the lawfulness of a byelaw or an administrative decision where the prosecution was premised upon its validity (page 161). 75 The reasoning of Lord Steyn in Boddington was equally forceful. Lord Steyn made it clear that the criterion laid down in Bugg's case was not acceptable. There was, he explained, no validity in the dichotomy between substance and procedure. Secondly, his Lordship said the inability to plead the invalidity of a byelaw in the course of a criminal prosecution was contrary to principle and precedent. That a defendant would be so precluded, he said, was "unacceptable in a democracy based on the rule of law". Further, while Lord Steyn accepted that the decision in Bugg allowed for the possibility of a challenge to a byelaw by way of judicial review, he felt that this was an inadequate safe guard for the individual. The possibility of judicial review could not be said to compensate the individual "for the loss of the right to defend himself". The ability to raise the matter before the magistrate's court reinforced the egalitarian tendencies of the law by facilitating access to justice for the ordinary individual. 76 His Lordship also considered the relationship between the holding in Boddington and that in Reg v Wicks. Lord Steyn's reasoning recognized that there could, on the hand, be cases where the statute required the prosecution to prove that the consented Act was not open to challenge on any ground available in public law, where it might be a defence to show that it was open to challenge in that way. In such cases it would be for the court before which the prosecution was brought to rule on the validity of the Act. There could, on the other hand, be cases where the statute, on its true construction, merely required that the act which had been done under statutory authority "appeared to be formally valid and had not been quashed by judicial review". Lord Steyn recognised that the latter decision pertained in Wicks case principally because of the construction of the statute in question (page 169). 77 Two points may be made in relation to the authorities I have examined. First, Boddington's case is clearly a most persuasive authority in relation to the general point at issue in the present appeal. Secondly, Wicks case (and the review of it undertaken by the House of Lords in Boddington's case) raises very clearly the type of examination that is necessary in the present appeal when considering whether Mrs Gray was entitled to raise the points she sought to raise by way of defence. When I have concluded this review of the relevant authorities I shall return to the reasoning in Wicks case to examine it more carefully. For the moment, it is sufficient to make brief reference to the treatment of the issue by Lord Hoffman. He posed the issue in Wicks case in the following terms: "In my view the question in this case is likewise one of construction. What is meant by "enforcement notice" in s 179(1) of the Act of 1990? Does it mean a notice which is not liable to be quashed on any of the standard grounds in public law, or does it mean a notice issued by the Planning Authority which complies with the formal requirements of the Act and has not actually been quashed on appeal or judicial review? The words "enforcement notice" are in my view capable of either meaning. The correct one must be ascertained from the scheme of the Act and the public law background against which it was passed." 78 After analysing the legislation, its history and the practical and policy implications of the respective views, his Lordship concluded that "enforcement notice" bore the second meaning. The other principal speech, that of Lord Nicholls of Burkinhead was to the same effect. His Lordship noted that s 179 was "impeded in an elaborate statutory code, with detailed provisions regarding appeals". 79 A third, and quite significant feature, in Wicks case was the presence in the legislation of s 285(1). This section provided: - "Subject to the provisions of this section, the validity of an enforcement notice shall not, except by way of appeal under Part vii, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought." 80 It will be recalled that Mr Wicks had appealed to the State Secretary, as he was entitled to do, on a number of the grounds which were available within the purview of that appeal section. The effect of s 285(1) was that the matters which had been the subject of the appeal, and even a number of further matters which might have been raised on that appeal, were not able to be raised in other proceedings. 81 There is perhaps a third matter that needs to be mentioned. I have heard no argument on it. Consequently, the following discussion is made tentatively and without the advantage of hearing submissions by counsel. The point at issue is the reliance by the House of Lords in Boddington's case on Anisminic. In Australia, the High Court has set out a test for jurisdictional error in relation to Australian Courts when orders are sought in the nature of certiorari (Craig v South Australia (1995) 184 CLR 163). The High Court has made it clear that an inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of its jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist (Craig; p 176). The High Court has, in addition, made it clear that the broader kind of error described by Lord Reid in his well known speech in Anisminic at 171, is not jurisdictional error so as to enable the grant of relief in the nature of certiorari at least where the decisions of inferior courts are concerned. On the other hand, the High Court has confirmed that the full range of the common law grounds of judicial review are available to challenge the legality of a tribunal decision. So far as tribunals are concerned, there does not appear to be any relevant distinction in Australia, as a result of Craig's case, between jurisdictional error and non-jurisdictional error. It will be recalled that Lord Reid had said: - "There are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly." 82 The High Court in Craig's case, when deciding what constitutes "jurisdictional error", distinguished between, on the one hand, inferior courts which are amenable to certiorari; and, on the other, tribunals which are also amenable to the writ. The High Court pointed out that the speech of Lord Reid, although expressed widely, was in fact made in the context of an examination of the decision of an administrative tribunal. The High Court said that Lord Reid's comments should not be understood as intended to refer to a court of law (page 178). Where an administrative tribunal however, falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authorities or powers. Such an error – on the part of an administrative tribunal - is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it (page 179). 83 Although Craig's case is, strictly speaking, dealing with the situation in which relief in the nature of prerogative relief will issue to a court or tribunal, there is, it seems to me, nothing in Craig's case that reflects adversely on the proposition that a defendant in criminal proceedings is entitled to raise by way of defence the lawfulness of an administrative decision by a tribunal or an administrative body where the prosecution is premised on the validity of that decision. Rather, it may be said that the reasoning in Boddington is supported by the remarks in Craig's case. 84 I return to a consideration of the decisions in the United Kingdom. There is one further decision that should be mentioned. In Dilieto v Ealing London Borough Council (2000) QB 381 the divisional court had before it an appeal by case stated against a decision of the Ealing Justices convicting the appellant of breaching the terms of a "breach of condition notice". This notice had been served by a local council alleging that the appellant was in breach of a condition of his planning permission. The planning approval had permitted the change of use of a studio at Hessel Road, Ealing to use it as a warehouse. The relevant condition required that the yard area of the building be "maintained clear at all times to the satisfaction of the local planning authority". Council officers made an inspection and found that the yard was in fact being used for the parking and storage of ice cream vans. A notice was given requiring the appellant to cease using the yard for the storage and operation of the vans and to remove the vans from the yard. The appellant did not comply and consequently the council laid an information alleging a breach of the notice. The appellant was convicted and fined. The appellant wished to challenge the validity of the breach condition on two grounds. First, that it was out of time and secondly, that the condition itself was so vague and imprecise as to be a nullity. The local council argued before the magistrates that the decision of the House of Lords in Wicks was sufficiently analogous to bring about a situation where the appellant was not entitled to challenge the validity of the notice in the way he had sought to do so before the magistrates. 85 Mr Justice Sullivan (with whom Lord Justice Rose agreed) held that Wicks was distinguishable from the situation before the divisional court. There were two major points of distinction. First, there was no right of appeal to the Secretary of State in relation to breach of condition notices as there had been in the case of the enforcement notice in Wicks. Secondly, there was no privative clause as there had been in the Wicks case. (Section 286 of the relevant legislation provided no more than that the validity of a breach of condition notice should not be challenged on the ground that it ought to have been issued by the County Council rather than the District Council, or vice versa). 86 After a careful consideration of the reasoning in Wicks, Mr Justice Sullivan came to the conclusion that the appellant was entitled to raise both points upon which he had sought to rely before the local magistrates; and that he was not obliged to pursue those matters by way of judicial review. The case stated was answered in accordance with these opinions. The position in Australia 87 In Selby & Anor v Pennings & Anor (1998) 19 WAR 520, the Full Court of the Supreme Court of Western Australia had before it, by leave, an appeal from a decision by Parker J who had allowed an appeal against certain orders made by a magistrate. The magistrate had before him a prosecution under the Conservation and Land Management Act 1984 (WA). The charge alleged that Ms Selby on 5 May 1995, not being authorised by an executive director of the Department of Conservation and Land Management, entered an area of State Forest No 59 that was classified under s 62 of the Act as a temporary control area by notice published in the gazette. The entry was said to be contrary to the regulations made under the Act. There was before the magistrate (and the appellate courts) a notice classifying the area of State Forest No 59 "as a temporary control area". Ms Selby had claimed before the learned magistrate that the notice was void, being ultra vires of the powers of the Minister under s 62(1)(d) of the Act. This submission had been upheld by the learned magistrate who concluded that there was no case for Ms Selby to answer. The complaint had been dismissed. The complainant had appealed against these orders to Parker J. In particular it was held that the magistrate was in error in allowing Ms Selby, in the proceedings before him, to mount a collateral challenge to the validity of the notice. Ms Selby appealed to the Full Court from the orders made by Parker J remitting the matter to the magistrate. 88 One of the issues before the Full Court was whether Ms Selby was able to mount a collateral challenge to the validity to the relevant notice. The secondary issue was whether the notice was, or was not, valid. At page 12, Ipp J said: - "There is no good reasons why a defendant in a criminal case should be precluded from arguing that a byelaw is invalid where that could afford him with a defence. Sometimes his challenge may be defeated by special statutory provisions on analogy with the decision in Reg. v Wicks (1998) AC 92. The defence may fail because the relevant statutory provisions are held to be directory rather than mandatory. It may be held that substantial compliance is sufficient. But if an issue as to the procedural validity of a byelaw is raised, the trial court must rule on it." 89 Ipp J drew considerable support from the decision and the principles enunciated in Boddington. There was nothing in those principles, he said, which precluded a collateral challenge to support the legislation. Ipp J said that this had long been the law in Western Australia and cited a number of decisions. He said that there were sound reasons of policy for this; and that they were expressed in the speeches of Lord Irvine and Lord Steyn in Boddington. 90 In the same decision, Wallwork J agreed with Ipp J that the complainant had failed to discharge the onus of proving the validity of the notice. Wallwork J disagreed with one argument advanced on the appeal that the Court of Petty Sessions was not properly equipped to deal with judicial review for latent invalidity. He said that proposition was put to rest in Boddington and, for that purpose, he adopted the reasons advanced by Lord Steyn in the Boddington decision. He said: - "If persons are charged in Courts of Petty Sessions they should be allowed to defend in those courts." 91 The third judge, Owen J, said at page 23: - "In my opinion the reasoning of Lord Steyn in Boddington and British Transport Police (1998) 2 WLR 639 at 664 (the text of which is set out in the reasons of Ipp J) is compelling and I respectfully adopt it. The common law has, over the centuries, developed numerous rules to avoid or discourage multiplicity of proceedings. This is a matter of high public policy. Similarly the courts are generally reluctant to stand in the way of criminal prosecutions. It is not usual (although not unheard of) for a civil court to grant a stay of a criminal prosecution to permit a matter to be heard in the civil jurisdiction. There is also the public interest in preserving for members of the community ready and affordable access to the courts." 92 Owen J gave consideration to a number of policy reasons that supported the view he took. His conclusion was that there was good reason to follow the course adopted in Boddington. He too, rejected he complainant's challenge on the issue of collateral challenge in the magistrate's court. 93 In the Federal Court of Australia, Finkelstein J has followed Boddington in Re Churchill (2001) FCA 469; and in Elliott v Knott (2002) FCA 1030. 94 In Leung & Anor v The Minister for Immigration and Multicultural Affairs (1997) 150 ALR 76, Heery J (at 77) applied and gave apparent approval to the reasoning in Wicks in relation to the matter before the Full Court of the Federal Court in that case. Leung, it might be noted was a decision given before Boddington. 95 After a careful consideration of the foregoing authorities, and of a number of others both in the United Kingdom and here in Australia, I have come to the conclusion that, subject to the important and decisive issue of statutory interpretation mentioned below, the plaintiff was entitled to raise the validity of the notice issued by the defendant council before Mr Kennedy in the local court at Waverley. Before resolving the issue of statutory interpretation, it may be convenient to repeat in short form the nature of the challenge that Mrs Gray wished to raise in the Local Court, the relevant matters were:- (a) was development consent required for "the structure"? (b) was the "structure" a danger to the public? (c) was the council entitled to taken into account its fencing code when considering either questions (a) or (b)? (d) did the council comply with the procedural requirements of Division 2A by considering the representations made to it (Section 121J) and by giving reasons (Section 121L)? 96 An appropriate way of expressing the decisive question of statutory interpretation involved is to ask – whether, upon the proper construction of the EPA Act, the statute required no more than that the order issued by the Council appeared to be valid in a formal sense, had not been complied with and had not set aside or quashed by judicial review or other order? 97 The principal matters which attracted the House of Lords in Wicks to the ultimate conclusion reached in that decision were the statutory framework; the scheme of enforcement of planning control it exhibited and the history of the provisions. 98 Mr Maston's submissions in the present appeal focused upon the fact that there was, as he described it, an "exclusive right of appeal" to the Land and Environment Court from the order made by the Council. There is plainly force in this submission, although it begs the question as to whether the appeal is, in fact, exclusive. The Land and Environment Court's powers under s 121ZK are admittedly very wide. The Court may, for example, revoke the order; or it may modify it; it may substitute an order; or find that an order has been sufficiently complied with or "make any other order with respect to the order as the court thinks fit". Section 121ZO provides that Division 2A does not limit a power of the Land and Environment Court under the Land and Environment Court Act 1979. The width of the Court's powers is further emphasised by s 39 of the Land and Environment Court Act. One significant difference between the appeal contained in the EPA Act and the appeal conferred upon Mr Wicks to the Secretary of State is that, in the latter situation, the appeal grounds were limited and did not extend to the broad range of public law considerations. By contrast, Mrs Gray would have been entitled to raise all the matters she wished to raise in the hearing of an appeal before the Land and Environment Court, had she chosen to lodge an appeal. None of the four questions I have listed above were inappropriate for determination in such an appeal. 99 Perhaps the principal point of distinction between the statutory scheme in Wicks and that which exists in the present matter is that, in the New South Wales legislation, there has not been imposed a restriction on (or, for that matter, "a progressive restricting" of) the range of issues which a person served with an order (enforcement notice) could raise under the English legislation when he or she is prosecuted for a failure to comply. (See Lord Hoffman at page 119 lines G-H). I shall return to this consideration later. 100 In a number of other respects, the reasoning of the House of Lords in Wicks in relation to the relevant legislation in that case may be said to have parallels with the EPA Act. There can be no doubt, for example, that the existence of offence proceedings in the New South Wales legislation is part and parcel of an overall package for "implementation and enforcement" of planning control. See the heading contained in Part 6 of the EPA Act. The offence sections are contained in Division 4 of Part 6. But, as well, there is Division 3 which provides for injunctive relief and mandatory orders that may be made by the Land and Environment Court to bring about compliance with, inter alia, orders made by Council. Section 122 of the EPA Act includes a failure to comply with an order under Division 2A; s 123 plainly is applicable in relation to failure to comply with such an order. It deals with restraint of "a breach of this Act". The power to order demolition and removal contained in s 124 is consequent upon, inter alia, breach of a Council order. 101 On the other hand, there may be less force in the New South Wales legislation as to one of the matters that assumed some prominence in Wicks. This was the need for the validity of the notice to be determined quickly enough to enable planning controls to be effective. (Per Lord Hoffman at pages 119 lines G-H and 121 lines A-C). That this may be is of less importance in our legislation can be seen from the facts as they developed in the present matter. Mrs Gray was ultimately persuaded to remove the barbed wire from the stakes and to replace it with mesh. This happened when the Council solicitors threatened proceedings under ss 123 and 124 of the Act and set a firm deadline for compliance. The practical consequence of this was that there was no particular need for a swift determination of the validity of the notice in proceedings under s 127 of the EPA Act, that is in proceedings to enforce the offence allegedly committed under s 125. Nevertheless, to a general extent, there is a parity of approach between the two pieces of legislation. One clear intent of the presence of the criminal proceedings is to show that the criminal law is being used not merely to punish for a past act but as an instrument of coercion to encourage compliance in the future. For example, penalties under s 126 include a further daily penalty. It may be appropriately said that the criminal proceedings provided for in the EPA Act form part of the general scheme of enforcement of planning control in the legislation. 102 Another matter which prompted the ultimate conclusion in Wicks was the fact that, under the legislation, the owner who was served with a notice knew that he had to challenge it or comply with it. Lord Hoffman said, that the position of such a person is quite different to that of a person who has contravened a byelaw. The latter may not have heard of the byelaw until he has in fact contravened it. (Wicks p 122 lines E-F). 103 Lord Irvine picked up the same distinction in Boddington at page 161 where he noted that, by contrast with the situation in both Wicks and Quietlynn (supra) which were concerned with administrative acts specifically directed at the defendants, the promulgation of subordinate legislation is of a general character and directed to the world at large. In that situation, the first time an individual may be affected by subordinate legislation is when he is charged with an offence under it. By contrast, as in the present case, the recipient of the notice is the sole target of it; and the notice itself gives a clear and ample opportunity for the recipient to challenge the legality of the issue of the notice, before being charged with an offence. Indeed, an absence of awareness that the non-compliance has been made the subject of an order provides a "sufficient defence" to a prosecution (s 125(4)). 104 I have not canvassed every proposition discussed in the written submissions of counsel in the present matter. Even though counsel did not provide me with reference to the authorities which I have nevertheless found helpful and persuasive in the present matter, it must be said that their submissions in relation to the proper construction of the EPA Act have been of assistance. But, as I say, I do not propose to review each and every one of those submissions. 105 It is appropriate that I mention one or two of the arguments, however, that have been advanced. Mr Maston argued, in the context of the significance of the appeal, that it was important to note that an order binds successors in title "as if the order has been given to that person" (s 121 Y). He also pointed to the fact that the consent authority may carry out the works ordered where there has been a failure to comply with the terms of the order. In those circumstances expenses incurred by the authority may be recovered in a court of competent jurisdiction. He also pointed to the fact that the lodgement of an appeal to the Land and Environment Court against an order does not affect a stay of the order. 106 On the other hand, Mr Gray pointed to the unfairness that might result where a successor in title was prosecuted for failure to comply with an order. Such a person, for practical reasons, may have had no opportunity to appeal to the Land and Environment Court. It would be unfair, he argued, for such a person to be deprived of the right to raise the validity of the notice in the local court, in the event that he were prosecuted. 107 There is no doubt that considerations relating to the appeal permitted by the legislation to the Land and Environment Court are significant matters in relation to the determination of the issue at hand. There does not, for example, appear to be any statutory restriction of the issues that may be raised on such an appeal. Clearly, they may embrace matters that are eminently suitable for determination in the Land and Environment Court. Matters such as the need for development consent, and careful consideration of the relevant statutory and subordinate legislation, are the very "bread and butter" of that Court's jurisdiction. It is a specialised court dealing with matters requiring some speciality. 108 There is no doubt that there is a very clear statutory intention, indeed an express intention, that matters arising under s 121B orders are to be scrutinised, if there is to be an appeal, by the Land and Environment Court. But the real question is – was it intended that those issues be determined only by that Court? 109 It will be plain from what I have said that there are arguments both for and against the present plaintiff having a right to challenge the validity of the council order by way of defence in the local court. In the end, I have come to the conclusion that the entitlement to do so has not been taken away by the terms of the EPA Act. There are two essential reasons why I think this is so. 110 First, unlike the legislation discussed in Wicks, there is no statutory restriction on the ability to challenge the council order in proceedings arising otherwise than in the appeal contemplated by s 121N and provided for in s 121ZK. This, in my view, is a significant distinction between the situation discussed in Wicks and the present matter. If the legislature had wished to oust the ability of the local court to deal with such a defence, it would have been a simple matter to have included it in the legislation. 111 Secondly, it seems to me that only the clearest language in a statute should be held to have taken away the right of a defendant in criminal proceedings to challenge the lawfulness of an administrative decision made against him where the prosecution is premised on its validity. This point is made forcefully by Lord Irvine in Boddington's case at pages 161 lines C-F and 162 lines F-G. I am not by any means attracted to the proposition that this important right is to be excluded by implication, unless there is, as I have said, the clearest possible indication to that effect. The same reasoning infuses the speech of Lord Steyn, especially at page 175 lines C-E. It is apt to refer to His Lordship's words:- "Moreover, the ruling of the Divisional Court is contrary to principle and precedent which permits in civil and criminal cases a collateral or defensive challenge to subordinate legislation and administrative decisions. The result of a decision of the Divisional Court is that magistrate's courts will sometime be obliged to convict defendants and to punish them despite the fact that the invalidity of the byelaw or order on which the prosecution is based affords the defendant an answer to the charge. Subject to the qualification enunciated in Reg v Wicks (1998) AC 92 such a view of the law involves an injustice which cannot be tolerated in our criminal justice system." 112 Essentially for these reasons, and notwithstanding the contrary arguments advanced by Mr Maston, I have come to the conclusion that the plaintiff was entitled to challenge the validity of the order by way of defence in the local court at Waverley. With all due respect to the decision of the learned magistrate, I have come to the conclusion that his opinion on the matter was erroneous. I should say, as a matter of fairness, that it is not surprising that his Worship reached the result he did. I say this because he was not provided with assistance from either side in relation to the existence of significant and recent authority both here and abroad. 113 What then should be done? The parties are agreed that I may, if I wish, deal with the notice of contention. Normally, where an error of the subject kind has been made, it would be appropriate simply to refer the matter back to the local court with an expression of opinion on the legal principles involved. In the present case, however, I think that would not be an appropriate course to take. The parties have been put to considerable expense already. It seems to me that it is in everybody's interest, and in the interest of justice, that I determine the matters raised in the notice of contention. I now propose to turn to those issues. Notice of Contention 114 The principal matter for resolution under this heading is whether the "structure" was a "building" within in the definition of s 4(1) of the EPA Act. If it was a "building" within this definition, did it require the development consent of Woollahra Council? The issues involved in these questions, it seems to me, are appropriately to be regarded as questions of law. Whether a particular matter falls within the description contained in a statutory enactment is generally regarded as a question of law (Harris v McKenzie (1987) 9 NSWLR 149. If I am wrong in relation to this aspect of the matter – and no submissions were directed to me of a substantive kind, - I consider that leave should be given in any event to raise the matter on the hearing of the appeal. As I understand it, there is no objection to my doing so. Question 1 – was development consent necessary for the "structure"? 115 I have earlier set out the main statutory provisions that bear on the issue. I think it may be safely said that a broad construction of the concept of "development" is warranted, having regard to the statutory definitions the object and purpose of the Act and the considerations which are appropriately to be taken into account under s 79C of the Act. The defendant has argued that, taken together, the steel star pickets, (fixed to the ground as they were) and to which were attached barbed wire in multiple strands, including coils of barbed wire, with the wire extending the full length of the steel picket fence, justified the view that the composite creation may be described as "a building" within the inclusive definition contained in s 4(1) of the Act. The height of the structure was approximately one metre and, in general terms, the structure, it will be recalled, extended for approximately 17 metres down towards Trelawney Street. 116 It was further submitted that the steps taken in the compilation of the structure were properly defined as "development", being the erection of a structure, particularly having regard to the references contained in s 4(2) of the Act. 117 Mr Gray, on the other hand, has argued that the defendant has sought to "pull itself up by its own boot straps" in its arguments. This criticism relates to the reference by the council to the provisions of the subordinate legislation represented by the Woollahra Local Environmental Plan; the Woollahra Residential EDP; the Development Control Plan for Exempt and Complying Development and the Fencing Code. Mr Gray submits that one needs to go back to the definitions in the Act itself to determine whether the "erection" or "construction" of any particular "structure" may be properly regarded as a matter requiring development consent. Secondly, and most importantly Mr Gray relies heavily on the decision of the New South Wales Court of Appeal in Mulcahy v Blue Mountains City Council. Indeed, it is fair to say that throughout the whole history of this extended litigation, Mr & Mrs Gray have, in essence, postulated their case on the basis of their understanding of the Mulcahy decision. It will be appropriate now to turn to the facts and outcome of that decision. 118 Mrs Mulcahy owned land near Mt Victoria. She had owned the land since about 1985. She had used it for the exercise of horses and generally for residential purposes. She had premises "in or near the land". In 1972, by mistake, a sealed road had, without any right, been constructed through the land. The Crown grant reserved an area for a road but the road was not constructed on it. The land on which the sealed road had been constructed was, in fact, Mrs Mulcahy's property. At the time when the matter came before the Court of Appeal, there was an extant application by the council for the compulsory acquisition of the land for the purpose of legitimising the use of the road as a public road. The application had, however, not been determined by the time the matter came to court. 119 In 1991 Mrs Mulcahy decided to put gates across the road at two places, one where the road entered her land and the other where it came to the land reserved for a road by the Crown grant. She wished to restrict or prevent people trespassing on her land by using the sealed road. Areas near the sealed road were very scenic and had, prior to the erection of the gates, been used by the public relatively frequently. In 1992 the council applied to the Land and Environment Court for an injunction restraining Mrs Mulcahy from maintaining the gates and so exercising her right to stop trespassers entering her land. It sought an order that the gates be removed on the ground that there were "buildings" for which consent was required and that such consent had not been obtained. The Land and Environment Court, on the basis that the gates were "buildings", granted the injunction. Mrs Mulcahy appealed to the Court of Appeal against the Court's orders. In the Court of Appeal, the first issue, namely whether the gates were "buildings", was not pressed. As a consequence the only matter which was argued before the Court of Appeal was the issue relating to the proper exercise of the Land and Environment Court's discretion to order the removal of the gates. 120 In the ultimate, the Court determined this issue on a relatively narrow ground. Mahoney JA gave the principal decision of the Court. It was clearly a significant background to his Honour's ultimate conclusion that he formed the view that the council had used the present injunction proceedings for what was legally a collateral or illegitimate purpose. Indeed, he said so. This purpose, his Honour said, was to subvert Ms Mulcahy's successful attempts to prevent people driving along the constructed road to enjoy the scenic views. Of course, from Ms Mulcahy's purpose she was doing no more than seeking to stop trespassers on her land. 121 Mahoney JA gave two reasons for his conclusion that the Land and Environment Court had erred in its discretion in granting the orders sought by the Council. For the purposes of the appeal, his Honour assumed that what Ms Mulcahy did in putting up the gates involved, in fact, the erection of a building without the required consent. The first reason advanced by his Honour for allowing the appeal was that the Land and Environment Court had not taken into account whether the destruction of the gates was required in order to achieve the purposes of the legislation or, indeed, had any bearing upon it. In this regard, his Honour said:- "But the erection of a gate in the midst of a forest area distant from any habitation hardly, if at all, affects the main objective of the legislation. And, however that be, the destruction of the gates in order to allow public access to the present road would not be within such objectives." 122 The second reason advanced by his Honour was that the learned judge had not properly taken into account the fact that the road was land owned by Ms Mulcahy and the purpose or effect of the destruction of the gates would be to allow and encourage trespass on her land. Mahoney JA said at the foot of page 309:- "In this case what the judge did had the effect and, with respect, it was the purpose of the application and the order, that the road should be open for traffic by trespassers. This was a matter of particular importance in the exercise of the discretion." 123 At page 310 Clark JA agreed with the orders proposed by Mahoney JA but only for the second of the two reasons given by his Honour. Meagher JA agreed with both the reasons and the orders proposed. His Honour, in his usual robust manner, had this to say: - "Justice Pearlman … said in outlining her reasons for exercising her discretion to grant an injunction against the appellants that, if no injunction were granted, it would have a 'detrimental effect' on the public, who would be 'hindered' in their right to use the road. This must constitute a mistake of law, and one of no mean order. The public are trespassers and have no right at all to use the road, as Mahoney JA has pointed out." 124 In the course of his judgment, Mahoney JA gave considerable consideration to the generality of the definitions in the Local Government Act 1919 and the Environmental Planning and Assessment Act 1979, s 4. The matter at issue in the proceedings before Pearlman J had been concerned with the need for development and building consent under the relevant legislation. Since the first ground of appeal had been abandoned, and because of the assumption that Mahoney JA made for the purposes of reaching the final conclusion he did, his observations are in fact obiter. They demand however, considerable respect and attention. The thrust of his Honour's examination of the generality, breadth and width of the definitions of "building" for the purposes of the legislation involved in the appeal was his view that "a purposive construction" should be adopted (Kingston v Keprose Pty Limited (1987) 11 NSWLR 404). His Honour continued his analysis at pages 307-308 in the following terms: - "In principal, the purposive approach to construction of, for example, 'structure' or 'erect' would proceed in a manner such as the following. The Court would determine the purposes which the legislative sought to achieve by prescribing that no structure may be erected without council approval. I shall assume, by way of over simplification, that that purpose was the safety and stability of the structure. The Court would then adopt from among the possible meanings of 'structure' and 'erect' that meaning which would give effect to that purpose. It would not give to the terms a meaning which had no relevance to the achievement of that purpose." 125 Mahoney JA then went on to develop his analysis by reference to a number of examples. He drew the distinction between, for example, a metal sculpture set up in a garden, on the one hand; and the same structure if set up inside the house, on the other. His Honour, as I have said earlier, made the assumption that the gates in the present case were structures within the concept of erecting a structure in terms of the Local Government Act s 305. His Honour however, then went on to consider whether the presence of such gates in a bush setting had anything or much to do with the achievement of the purposes of the relevant part of the Local Government Act. It was in that context that his Honour then went on to the two main considerations that led to his conclusion that injunctive relief should have been refused. 126 I have set out the reasoning in Mulcahy in some detail. I have done so in deference to the extensive arguments advanced by Mr Gray on the plaintiff's behalf; and also in deference to the fact that Mulcahy's case has been the cornerstone of the arguments advanced by the plaintiff throughout the course of the dispute with her neighbours and Woollahra Council. 127 But, in my view, the plaintiff has endeavoured to make too much out of Mulcahy's case. It needs to be stated that there was a significant feature in Mulcahy's case which is absent from the present. This is the feature referred to by Mahoney JA namely, the fact that the council, in that case, brought the proceedings for a collateral or illegitimate purpose. I do not draw that inference from the council's actions in the present case. Rather, I consider that the council was concerned with appropriate environmental considerations. Secondly, the assumption that Mahoney JA made related to the need for approval under s 305 of the Local Government Act. The purpose of the approval was bound up with "the safety and stability of the structure". In the present matter, the council, in my view, rightly were bound to consider a broader range of matters. First, it seems clear that a literal reading of the environmental planning instrument required, for two reasons, that development consent might be required. These two reasons were of course only triggered if the "structure" fell within the definition of "development" in s 4(1) as extended by s 4(2). Literally, those sections applied. But in determining whether the purposes of the legislation required that those definitions be applied in literal terms to the "structure" it would have been appropriate for the council, as indeed it is for me, to have regard to the objects of the Act in s 5. These include "the proper management development and conservation of cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment". These are very broad considerations indeed. 128 It seems to me that the purposes of the legislation would be appropriately served by the view which the council undoubtedly took, namely that this was a structure which because of its size, location and component parts, required development consent. Moreover, it was not an irrelevant consideration, once it was appreciated that development consent was required, that the considerations enshrined in s 79C inevitably posed a powerful argument that development consent, had it been sought, was most likely to have been refused. The various matters in the subordinate legislation to which I have referred, admittedly, could not carry the argument forward as to whether development consent was required. They however, pointed strongly in the direction, that if development consent were required, it should be refused. 129 This brings me to the third point of distinction. Mulcahy's case differs from the present case in that there the order for demolition of the gates would allow and encourage trespassers upon Mrs Mulcahy's land. That situation did not exist in the case of the demolition of the structure on Mrs Gray's land. 130 I have considerable sympathy for the position in which Mr & Mrs Gray found themselves. It must have been extremely frustrating and harassing that the dispute with their neighbours had developed into the spiteful and petty situation that I have described at the outset of these reasons. Nevertheless, in environmental terms, their response was a strikingly provocative one. I do not think that the situation in Mulcahy is a true analogy with the present case. There, the public at large were, with the connivance of the local council, actively using a sealed road illegitimately placed upon Mrs Mulcahy's land, to trespass upon her property. That, to my mind, is a significantly different situation than the situation in the dispute between the Grays and the Furbers. The distinction argued by Mr Maston on behalf of the council is, I consider, a reasonably valid one. The position in Trelawney Street Woollahra was that of a closely settled urban area. The construction of a 17 metre barbed wire "fence", a metre or so from the boundary, was aesthetically obnoxious, likely to be dangerous and environmentally unsound. In making these judgments, I am merely reflecting a number of the considerations in the subordinate legislation which the council was bound to take into account on the issue as to whether consent would be likely to be refused. 131 It is far too broad a principle to state, as did Mr Gray in argument, that a person is entitled to build or erect any structure within the confines of his or her own land to keep out trespassers or unwanted persons. There may be very sound environmental reasons why a development consent would be required. It is possible to contemplate walls, fences, barriers, moats and many like structures where, depending on the circumstances, the purposes and objects of the Act would be enlivened so as to require consent. 132 In my view, the defendant council was, as a matter of law, entitled to take the view that the creation of the composite "structure" represented by the material I have described fell within the definition of "development" in s 4(1) of the EPA Act. It involved the erection of a structure and the carrying out of a work. As such, it brought into play that part of the relevant environmental planning instrument that specified development might not be carried out except with development consent. Consequently the council had the entitlement to make an order under s 121B in terms of Column 2 of the Table. In determining whether to make such an order, the council was entitled to have regard to those matters it might have regard to if it were determining a development application. By this I mean the matters of evaluation contained in s 79C. All those matters, in my view, were relevant considerations to be taken into account when determining whether to make an order and in determining the terms of any such order. They would properly include, in my opinion, matters such as the Fencing Code, even though strictly speaking the "structure" was not a dividing fence. Considerations such as those in the subordinate legislation, including performance standards, and the matters in s 79(1)(b), (c) and (e) support the relevance of such considerations. 133 The final matter which I wish to mention in relation to this ground of contention is the reference in the council order to "danger to the public". In view of the conclusion I have reached in relation to the question as to whether development consent was required, it does not seem to me that any useful purpose would be served in resolving this additional matter. The "circumstances" in which an order may be made to demolish or remove a building include the additional consideration – "building is or is likely to become a danger to the public". There are two further "circumstances" contained in the relevant section of the Table but I need not set these out. While it is true that the council document referred, in effect, to a hybrid version of the second of the "circumstances" that would warrant an order for demolishment of a building, it principally relied on the first "circumstance". Assuming for the sake of the argument that Mr Gray is perfectly right in his submission that council would not have been entitled to issue an order on this ground alone, if they had in fact purported to do so, but it is not necessary for me to decide this point. This is because, even if the council had in fact purported to do so, and even if were it correct that the council misconstrued the relevant part of the Table, this would not invalidate the order that was made or render it liable to be set aside. In turn, this is because the council was, according to the conclusions I have reached, correct in determining that development consent was required for the structure. But, in any event, the statement criticised by Mr Gray forms part of the "reasons" for the order. It does not purport to be, and indeed differs in its terminology from the "circumstance" mentioned in Column 2(b) of the s 121B Table - I shall have something further to say on the issue of "reasons" in the next section of this decision. But I am not satisfied that the impugned sentence in the order represents an error of law so as to render the notice invalid. Question 2 – Did the Council fail to hear and consider representations made by the plaintiff so as to render the order invalid? 134 I have earlier referred to the relevant statutory provisions. The notice of the proposed order is required to inform the person to whom the order is proposed to be given that representations may be made as to why the order should not be given or as to the terms of or period for compliance with the order. (s 121H). The council is required to hear and consider any representations that are in fact made (s 121J). 135 As I earlier indicated, Mrs Gray made very lengthy and extensive representations to the council. They were contained in the letter of 8 September 2000, the letter of 20 September 2000 and the enclosures to the correspondence. This included a copy of the survey from Harrison Friedman and Associates Pty Ltd. 136 Mr Gray's attack on this aspect of the council order arises from correspondence demonstrating that the Furbers had been agitating the Member for Bligh, Clover Moore, and the Ombudsman to push the council into taking steps in relation to the barbed wire structure erected by Mr and Mrs Gray close to the boundary between Numbers 7 and 9 Trelawney Street, Woollahra. The order, it will be recalled, had issued on 16 October 2001. Mr Daintry emailed a letter to both the Ombudsman and Clover Moore on 16 October 2001. Relevantly the letter states:- "Please find attached the letter and order to the Grays and a letter to Mrs Furber apologising for the delay in issuing the order. I have also provided Mrs Furber with a copy of the order. I have just picked up the file and spoken with Craig Jenner briefly. I cannot believe how thick this file is and I cannot believe how complex this matter is given that it is essentially a civil dividing fence matter." 137 The letter then goes on to examine whether the council had or had not acted promptly. Mr Daintry appears to have accepted the criticism that officers in the council had not acted in a timely fashion; and had not responded to the Ombudsman's complaints with sufficient celerity. The letter continues:- "Irrespective of the preceding comments. The fact that the Grays have chosen to employ the use of barbed wire means we must act, to wit the attached order. Council has consistently enforced compliance with the provisions of its Fencing Code with respect to the general prohibition of the use of barbed wire. Further, no reasonable argument can be put which would convince me that it is publicly acceptable to permit the use of barbed wire in residential premises." 138 It will be recalled that Mr Daintry had written to the plaintiff on 16 October 2001. In that letter, he had enclosed the order issued by and on behalf of the council, Mr Daintry had reiterated sentiments about the council's views regarding the necessity to prohibit the use of barbed wire as a fence material. In that letter, he had also pointed out to the plaintiff that, it was his view that a structure had been erected without consent in circumstances where consent was in fact required under the Act. He had also pointed out to the plaintiff that, in effect, if they wished to erect a fence with materials other than barbed wire, it would fall within the exempt development provisions of the council's development control plan and would accordingly not require consent. 139 Mr Gray's submissions in relation to this issue were these: first, he argued that the statement in the letter from Mr Daintry to the Ombudsman demonstrated that neither Mr Daintry (nor anyone else for that matter) had ever given appropriate and fulsome consideration to the plaintiff's representations. Secondly, he argued that there was no evidence from Mr Daintry at the hearing before the Local Court which explained the degree to which the plaintiff's representations had, or had not, been considered. In other words, Mr Gray suggested that it would have been necessary for Mr Daintry to have been called in the proceedings and to state precisely the manner in which he had given consideration to the extensive representations made on behalf of the plaintiff. Thirdly, he argued that the absence of such evidence in the Local Court caused an inference to arise that the representations had in fact not been considered (Jones v Dunkel (1959) 101 CLR 298). 140 Since this issue is tied in with the final two issues in the proceedings, I shall identify those issues and the argument advanced to support them before dealing with all remaining issues compendiously. Question 3 – Did the notice give inadequate reasons so as to render the order invalid? 141 A person who gives an order must give the person to whom the order is directed the reasons for the order. They may be given in the order or in a separate instrument (s 121L). The plaintiff has argued that the council failed to give adequate reasons and this has resulted in the invalidity of the order. 142 As I have said, the plaintiff's submissions on this matter are closely allied with the submissions in relation to the preceding question, namely the alleged failure to take into account the plaintiff's representations before issuing the order. Essentially, the plaintiff complains that the reasons given, both in the order itself and the letter sent by Mr Daintry to the plaintiff on the same day, demonstrate that the council (and its authorised officers) did not have due regard to the extensive representations which were made. Had they taken those representations appropriately into account, this would have been reflected in the reasons given. The complaint is that "the reasons" are in effect no more than an "incantation" of the statutory pre-conditions for the making of the order. 143 There have been a number of decisions in the Land and Environment Court, where upon the hearing of an appeal against the validity of an order, the Court has come to the conclusion that the absence of adequate reasons has invalidated the order. These cases include Stutchbury v Pittwater Council (1999) 105 LGERA 1 at 17-18; Van Hassteren v South Sydney Council; Foster v Sutherland Shire Council (2001) NSWLEC 89 at para 15; Cassaniti v City of Canada Bay Council [2002] NSWLEC 144 (20 August 2002) 144 In each of these cases, for reasons that relate to the form of the order in the particular case before the Land and Environment Court, it was held that the order was invalid. The basis of invalidity included the failure to give reasons as required. In Van Hassteren at paras 30 and 31 Bignold J had stated: - "In circumstances where the discretionary power is only enlivened or exercisable, if specified circumstances exist, then the requirement imposed by s 121L that, 'reasons for order' be given cannot reasonably have been intended to be fulfilled by the order merely stating (or restating) the very same 'circumstances' the existence of which, alone enlivens the discretionary power. Thus simply as a matter of contextual considerations (quite apart from the important consideration of semantics) the meaning of "reasons" and the function of reasons in the legislative scheme or regime of the EPA Act, it can be confidently concluded that the statutory requirement that reasons be given for an order under s 121B(1) will never the fulfilled or satisfied simply by stating 'the circumstances' that must exist to enliven the discretionary power." 145 However, in J. & J. O'Brien Pty Limited v South Sydney Council [2002] NSWCA 259 Stein JA with whom Handley and Giles JJA agreed, thought that, if the proposition in Van Hassteren were taken as authority for a proposition of general application, it went too far. Stein J thought that the proposition should not be accepted without qualification in cases where the statement of the circumstances enlivening the power was sufficient, without more, to make plain to the recipient the basis and reason for the decision to issue the order. 146 Stein JA thought that a council's order should be read as a whole. The question which arose was, when it had been so read, were the reasons for the exercise of the council's statutory discretions "plain". Would the recipient of the subject order be in any doubt as to the rationale for the giving of the order? 147 Again, I shall return to review the subject order in the light of these various statements in the authorities I have mentioned. Question 4 – Did the council take into account irrelevant considerations so as to invalidate the order? 148 There appeared to be two propositions under discussion here. The first is the suggestion that the council took into account an irrelevant consideration when deciding to make the order, namely the council's desire to bring an end to the dispute, this attitude being the one displayed in the correspondence with the Ombudsman. Secondly, the council was said to have erred in taking into account its Fencing Code in circumstances where the structure on the plaintiff's property could not be said to be a dividing fence within the meaning of the Dividing Fences Act 1991. 149 The first assertion emerges from the correspondence between Mr Daintry and the Ombudsman. The second is a repetition of one of the arguments that had formed part of Mrs Gray's September 2000 representations to the council. This was to the effect that since the "structure" was not the boundary between the two properties, the structure could not thereby be classified as a dividing fence. Consequently, the council's Fencing Code was irrelevant to any consideration relating to the proposed order. Resolution of the issues raised in Questions 2, 3 and 4. 150 I have come to the conclusion that there is no substance in any of the matters raised in these questions. I shall deal with each separately. 151 As to the representations, there is no doubt that these were made, received and were before the council. A fair reading of the order made on 16 October 2001 and the contents of the letter which accompanied it persuades me that the council did have regard to the representations which had been made to it. In my view, there was no obligation cast on the council to make reference to each of the detailed representations in the order or to give detailed reasons as to why arguments advanced had been rejected. 152 Despite everything that had been put by and on behalf of the plaintiff, including the detailed submissions regarding Mulcahy's case, the view taken by Mr Daintry (and, it is to be inferred, by others in his department) was a simple one. The view was taken that consent was required for the structure. Secondly, and most significantly, the view was taken that, had an application been made for consent, it would have been refused. It is clear that each and every aspect of the council's subordinate legislation predicated the refusal of such an application. It did not qualify as exempt or complying development; if the structure were treated as a fence on or near the boundary, consent would have been withheld. The council's residential control plan contained performance criteria which banned barbed wire as a material for fences or walls. 153 It needs to be recalled that Mr Daintry's letter of 16 October 2001 stated that the order had been issued "after detailed consideration of your representations". There is no reason to assume that this was not the fact. The brief reference I have quoted in the e-mail from Mr Daintry to the Ombudsman does not lead me to any contrary conclusion. It is likely that the file that was picked up from Craig Jenner was the file containing the entire history of the long standing dispute between the Grays and the Furbers. This reference does not lead me to draw an inference that the council and its authorised officers did not have regard to the September 2000 representations made on behalf of the plaintiff before issuing the order. I do not consider that there was any obligation on the council to call Mr Daintry in the prosecution to give evidence as to his actions or his state of mind. The correspondence was sufficient. 154 In relation to the third question, it is my view that the reasons given by the council in the present matter were adequate. They did not amount to a mere recitation of the "circumstances" appearing in the s 121B Table. I have earlier referred to, for example, the third reason given. This was: - "3. The building is or is likely to become a danger to the public being persons within the subject property and the adjoining property at 7 Trelawney Street Woollahra or any visitors to these premises;". 155 As I explained earlier, this was not in fact a recitation of one of the circumstances set out in Column 2. It was in fact part of the reasons given. The particular reason was that the structure was likely to become a danger to persons within the subject property and the adjoining property at 7 Trelawney Street, Woollahra. It was likely to become a danger to any visitors to those premises. As such, it may well be right, as Mr Gray argued, that it could not have been relied upon by the council as a "circumstance" which by itself would have justified the issue of the order. But it was plainly the fact that danger to occupants in either 7 or 9 Trelawney Street, Woollahra or visitors to either of those premises, because of the presence of a barbed wire structure, was part of the reasoning process. 156 Viewed as a whole, however, I consider that the reasons for the exercise of the council's statutory discretions are plain and quite apparent. She may not have agreed with it but Mrs Gray would have been in no doubt as to the rationale for the giving of the order. The structure she had assembled, in the council's view, required development consent. Secondly, because the structure was comprised of barbed wire – a component the council considered dangerous in a residential context, it was highly likely that the council would refuse consent, if it were asked to provide it. In those circumstances, the council had taken the view that the structure should be removed. Nothing, in my view could have been plainer. I do not think it can reasonably be suggested that the council were obliged to provide a lengthy, extensive and legalistic response to each and every argument which had been raised by the plaintiff in the extensive representations made to the council. 157 In relation to the final question argued I do not think that the council took into account irrelevant considerations so as to invalidate the order. The first of these was said to relate to a desire to bring an end to the matter. I have little doubt that the council did wish to see the matter resolved between the neighbours. The entire dispute was an unedifying one and one which had involved the council in considerable time and expense. I do not, however, think that the council in any way abrogated its statutory duties simply because individual council officers wanted to bring the matter to an end. I am also not persuaded that the council erred in taking into account, in the way it did, the provisions of its own Fencing Code. The location and nature of the structure permitted, in my view, the council to take into account the analogous situation of a dividing fence on the boundary and the prohibitions contained in the Fencing Code in that regard. In my view, the Code was an appropriate matter to take into account in determining whether an order should be made. Its identification as a relevant factor in the council's stated reasons was appropriate and correct. 158 From all of the foregoing, it is apparent that I have found in favour of the defendant on the issues raised in the notice of contention. It was agreed between the parties that should I find in favour of the plaintiff on the first point but find in favour of the defendant on the second point, it would be open to me to find that the conviction was properly made on the grounds stated in the notice of contention. 159 I have earlier stated the powers of the Court under s 109 of the Justices Act 1902. Although the section is wide enough to permit the increase or reduction of a sentence appealed against, the Court's power to act under this section derives essentially from, s 104(1). In my view, there is no aspect of the conviction entered by the learned magistrate which requires any finding that an error of law was made in relation to the imposition of the conviction itself. The Justices Act (as it stood at the relevant time) permitted applications and appeals to the District Court relating to severity of sentence. This is not such an appeal. But in any event, I am satisfied that none of the matters relied upon by the plaintiff in that part of the summons dealing with the third ground of appeal demonstrates that any error of law was made by the learned magistrate in relation to the conviction and fine he imposed. 160 In those circumstances, it appears to be accepted by the parties that the appropriate order for the Court to make in the present circumstances is simply to dismiss the summons. 161 There is the issue of costs. It is my preliminary view that, since the plaintiff succeeded on the principal argument and the defendant succeeded on the notice of contention, the appropriate order to make is that there by no order as to costs. I have not however, heard the parties on the issue and it may be desirable in those circumstances to reserve costs. 162 I propose to make the following orders: - 1. Summons dismissed. 2. Costs reserved. 3. The Exhibits may be returned. 163 I direct the parties to file written submissions on the issue of costs with 7 days of today's date. If the parties are in agreement, however, that my preliminary views are acceptable and that an order should be made in the terms indicated above, I direct the parties to provide a joint note signed by counsel for each party to that effect. The note is to be sent to me within 7 days of today's date. ********** Last Modified: 03/12/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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