Land and Environment Court New South Wales Medium Neutral Citation: Armidale Dumaresq Council v Post [2012] NSWLEC 54 Decision date: 20 March 2012 Jurisdiction: Class 4 Before: Pepper J Decision: The orders of the Court are: (1) by consent, the respondent, his servants and agents, is restrained from accessing 45 Gentles Road, Armidale, being Lot 61 DP 755808 ("the property"), by motor vehicle or motor cycle via any road and/or driveway passing through, alongside or running off, the roadway or driveway connecting the properties know as 53, 53A, 53B and 53C, The Avenue, Armidale; (2) by consent, the respondent, his servants and agents, is restrained from accessing the property by motor vehicle or motor cycle on any road or driveway that has not been approved by the applicant and constructed in accordance with a development application approved by the applicant; (3) by consent, orders 1 and 2 above are suspended from operation for a period of 6 months from the date of these orders; (4) the respondent is to pay the applicant's costs of the proceedings; (5)the exhibits are to be returned; and (6)liberty to restore on three days notice. Catchwords: INJUNCTIONS: respondent restrained from unlawful use of right of way - Impecuniosity of respondent irrelevant to making of costs order Legislation Cited: Environmental Planning and Assessment Act 1979, s 121B Cases Cited: Kennedy v NSW Minister for Planning [2010] NSWLEC 269 Category: Principal judgment Parties: Armidale Dumaresq Council (Applicant) Mr Roger Post (Respondent) Representation: Mr C S Leahy (Solicitor) (Applicant) N/A (Respondent) Liston and Clifton Solicitors (Applicant) N/A (Respondent) File Number(s): 41127 of 2011 Ex Tempore Judgment The Council Seeks Injunctive Relief 1This was initially an ex parte application by the Armidale Dumaresq Council ("the council") for injunctive relief against the applicant, Mr Roger Post, from accessing his property at 45 Gentles Road, Armidale being Lot 61 DP 755808 ("the property") by motor vehicle or motor cycle using an unauthorised driveway passing through and connecting properties at 53, 53A, 53B and 53C The Avenue, Armidale. Instead, the council wants Mr Post to use a road that he agreed to use pursuant to a modified development consent granted on 20 October 2011. 2Mr Post had, until the commencement of this year, been an active participant in the proceedings. However, Mr Post did not appear when the matter was listed for directions before Craig J on 3 February 2012 and, at least up until 2 pm today, had not participated in the proceedings since. 3In order to satisfy the Court that Mr Post was aware of today's hearing date, at the commencement of the hearing, Mr Christopher Leahy, the solicitor for the council with carriage of the matter, indicated to the Court that Mr Post had informed him earlier this year that he would no longer be active in the proceedings and that he did not intend to rely on any evidence refuting the council's claims. Mr Leahy also relied on an affidavit of service of Mr Nathan Hennessey, sworn on 7 December 2011, which deposed to the personal service of the summons commencing the proceedings and an affidavit of Mr Stephen Gow, sworn 11 November 2011 (together with exhibits to that affidavit), on Mr Post on 6 December 2011. 4Further, Mr Leahy tendered a letter dated 28 February 2012, addressed to Mr Post both at 45 Gentles Road, Armidale and 53D, The Avenue, Armidale (the two know addresses for Mr Post), sent pursuant to directions made by Craig J on 24 February 2012. The letter clearly informed Mr Post that the matter would be set down for final hearing at 10.00am on 20 March 2012 before the Court in Sydney. The letter indicated that the council intended to seek the orders in the summons, which included injunctive relief and an order for costs. 5On the basis of this evidence I was satisfied that Mr Post was aware of today's hearing and inferred that he had, for whatever reason, elected not to participate in it. Accordingly, the Court proceeded to hear the matter on an ex parte basis. 6The Court adjourned the matter over the luncheon break. Prior to doing so, the Court indicated to Mr Leahy that, after having had regard to the evidence and after hearing his submissions, that it was inclined to order the relief sought by the council. On this basis, the Court told the council that upon resumption at 2pm, it would deliver an ex tempore judgment giving effect to this stated intention. 7However, at 2pm Mr Leahy quite properly informed the Court that he had had a telephone discussion with Mr Post, wherein Mr Post had informed him that he had mistakenly thought that the hearing was tomorrow and that he had "booked a ticket to fly down for it" and that it was Mr Post's intention to present evidence to the Court in defence of the proceedings. 8The hearing of the proceedings was therefore adjourned in order to permit Mr Post to participate by way of telephone, which then occurred. 9After some discussion it emerged that although Mr Post had erroneously understood that the hearing was listed for tomorrow, in fact he had no evidence to put before the Court, other than to indicate, which he was permitted to do over the telephone (the council did not object to this course), certain factual matters to the Court and that he was amenable, other than to an adverse costs order, to the relief sought by the council provided that it was suspended for a period of time. Mr Post Unlawfully Accesses His Property 10Most of the evidence presented to the Court was uncontentious. The council asserts that contrary to a development application (DA 19 1996/A) granted on 16 August 1996, and as modified by the council on 20 April 2011, Mr Post is accessing his property unlawfully. 11On 16 August 1996, the council granted consent subject to conditions which included a specified vehicle access to Mr Post's property. Condition 6 of that consent required: A right of carriage way being registered over Lot 7,8,9 and 11 [53, 53A, 53B and 53C, The Avenue, Armidale] of DP 836850 Parish of Armidale, to provide Portion 61 in the Parish of Armidale [Mr Post's property] with legal access. The instrument is to include a maintenance agreement to be registered against the titles. The instrument is to include a notation that should subdivision of Portion 61, Parish of Armidale [Mr Post's property] occur, then the right of way will be required to be extinguished and all access to the subdivision will be required to be gained from Gentles Road. 12This condition was never complied with. 13On 11 June 2010 Mr Post was served with a s 121B Order under the Environmental Planning and Assessment Act 1979 ordering him to either comply with condition 6 above or to make arrangements for lawful alternative access to his property and to carry out all necessary works for this purpose to the satisfaction of council. 14The formal reasons why the order was issued included that Mr Post's continuing use of an existing driveway to his property through two other properties known as 53 and 53A, The Avenue, enjoyed no legal right of way or maintenance arrangements. In addition, the driveway was also subject to a right of way benefiting two other properties know as 53B and 53C, The Avenue, and there was no evidence of any legal agreement by the representative owners of those properties to Mr Post's use of the driveway. Accordingly, if the parties who had rights over the driveway were to take action to deny Mr Post the use of this means of access, he would be left without a safe and effective means of vehicle access to his dwelling contrary to the applicable planning instruments and to the Roads Act 1993. 15On 3 June 2010, Mr Michael Denis, the solicitor then representing Mr Post, responded to the s 121B Order stating that while Mr Post had the benefit of access by way of written consent from the owners at 53C, The Avenue, there was no reasonable prospect that the owners of 53B and 53A would provide such consent for the use by Mr Post of the existing carriageway. 16Accordingly, Mr Post proposed a modification to the 1996 development consent permitting him to access his property by way of a more southerly route from Gentles Road. This proposal included the construction by Mr Post of an access road from Gentles Road to the dwelling located on his property. 17On 20 April 2011 the modification application was approved by the council and in place of original condition 6 the following conditions were attached as conditions of the development consent: NEW CONDITIONS TO APPLY IN PLACE OF ORIGINAL CONDITIONS 6 AND 7: GENERAL CONDITIONS 6.1All access works to be located generally in accordance with the plan signed by the applicant on 16 February 2011 (Plan 8606/DA02/01) and designed by a competent person and carried out in accordance with Council's Engineering Code, unless otherwise indicated in this consent, to ensure that these works are of a sustainable and safe standard. All works are to be completed and inspected as a satisfactory by Council's Development Engineer within six months from the date of this modified consent (namely by 20 October 2011), in accordance with Council's Order issued 11 June 2010. 6.2An Erosion and Sediment Control Plan and Soil and Water Management Plan, in accordance with the requirements of the Department of Housing's Managing Urban Stormwater - Soils and Construction is to be submitted with the application for a Roads Act approval (see condition 6.5) or before work commences on the site. The soil and water management plan once approved must be implemented in conjunction with the access work. CONDITIONS RELATING TO PROPERTY ACCESS FROM GENTLES ROAD TO THE PROPERTY BOUNDARY: 6.3A safe all-weather access road road junction with an amended designed based on Council's Standard Drawing 030-41 Standard Access Culvert for Rural Roads (copy enclosed) is to be provided via an extended driveway access from the nominated access point at the western property boundary of Lot 61 DP 755808 connecting to the northern road shoulder of Gentles Road. The junction is to be constructed to gravel road standard or equivalent with bitumen seal at least between the road carriageway and the property boundary, to prevent deterioration / erosion of the road and to minimise Council's future maintenance liability. A concrete pipe culvert with not less than 375mm diameter with standard concrete headwalls is to be constructed at a suitable located relative to the should drain and clear of the edge of the road carriageway. Details to be provided to Council for approval with the required Roads Act application for the proposal. Action being taken by the developer and contractors to ensure that public safety is maintained on roadways under construction at all times, by the provision of effect barriers to distinguish between adjacent public roadways and the roadways under construction. 6.4 The attached 'Agreement to Meet Costs' form and monetary security for civil works to become public assets is executed and provided to the Council before the issue of the required Roads Act approval for the required access to the proerty boundary, to complete any public work required in connection with the project, or to cover the cost of carrying out rectification work in public areas in connection with the proposal should any defect arise within 12 months of completion of the works. Security shall be in form of cash or bank guarantee for an amount determined by the Council. Application for a 90% refund of the security may be made on documented completion of the works, with full refund of the remaining 10% upon satisfactory completion of the 12 months' defects liability period. 6.5 For all construction work required on Council land, the Applicant is to submit an application to seek approval for work in road reserves under the Roads Act 1993. The Applicant must address Council Policy POL097 - Roads: Management of Roads Reserves, to ensure pedestrian and vehicular safety during construction and that the work meets Council's relevant Engineering Code and other design standards for work in road reserves. CONDITION RELATING TO ACCESS FROM THE GENTLES ROAD FRONTAGE TO THE DWELLING ON THE PROPERTY BOUNDARY: 6.6 The proposed Internal Access Road, as shown on the annotated plan 8606 DA02/Rev. 01, commencing from the nominated access point at the western property boundary of Lot 61 DP 755808 and then continuing throughout the site up to the existing dwelling, is required to provide an all-weather, nuisance-free surface for a two wheel drive vehicle. The Internal Access Road is to be designed and constructed in accordance with the relevant requirements in Section 4.3 of Chapter D2, DCP 2007 and Section 4.2 of Chapter D4, DCP 2007. Consideration will be required with regards to the exisign drainage lines with in the property, and shall provide for adequate drainage structures / facilities where applicable. Details to be provided to Council's Development Engineer for approval before works commence. 18No appeal has been lodged with this Court challenging the imposition of these conditions. Evidence of the Parties 19The council relied on an affidavit of Mr Stephen Gow, sworn 11 November 2011. Mr Gow is the director of Sustainable Planning & Living for the council. In addition to setting out the background to these proceedings referred to above, Mr Gow attached a number of photographs depicting the current unlawful route that Mr Post uses to access his property from the north across the carriage way traversing 53, 53A, 53B and 53C, The Avenue. Mr Gow states that the owners of 53C and 53B, The Avenue, have not consented to Mr Post using the existing right of carriage way. 20The photos attached to Mr Gow's affidavit also demonstrate that no construction of the road as required by the modified consent had, as at the date the affidavit was sworn, taken place. 21Mr Post's oral telephone evidence was that, first, he did not traverse the properties located at 53B and 53C, The Avenue, to gain access to his property, and second, he had the consent of the owners of 53 and 53A. This evidence is, however, not only contradictory to that given by Mr Stephen Gow, but is inconsistent with what his solicitor told the council on 3 June 2010. 22Third, Mr Post told the Court that he had completed "half" of the road the subject of the 2011 modified consent and that, had the council not issued a 'stop work order' "a couple of weeks ago", it would have been completed by now. Mr Leahy did not know if the council had issued such an order. Mr Post is Accessing His Property Unlawfully 23I readily find on the evidence before the Court that Mr Post is currently accessing his property by means of a route that is not the subject of consent and is contrary to that which he agreed to with the council in April 2011. There is also no doubt that the road construction Mr Post agreed to undertake as recorded in the modified development consent has not been finalised by him. Mr Post agreed to undertake such works and to use a new route to access the dwelling on his property in exchange for the council not pursuing the s 121B order. 24I am, however, willing to accept Mr Post's evidence that construction of the road pursuant to the modified development consent has commenced by him and that the road is approximately half completed and that he can, as he states, quickly complete the remaining portion. 25In all these circumstances, it is therefore appropriate that Mr Post be restrained in the manner sought by the council in the summons, but because Mr Post would, as Mr Leahy conceded, be unable to access his property if the relief sought was granted and operated forthwith, the restraint ordered should be suspended for a period of time to allow Mr Post the opportunity of fully complying with conditions 6 and 7 of the modified development consent. 26The Court will therefore suspend the operation of the injunctive relief sought for period of six months to permit the works referred to in the modified conditions of consent to be completed and inspected to the satisfaction of the council. The Court determines that six months is an appropriate timeframe in which the work is to be completed on the basis that this is the same period of time given to Mr Post pursuant to condition 6.1 of the modified consent. 27I note for completeness that Mr Post assures the Court that he understands that if the construction of the road is not completed within this time, that the injunctive relief ordered will become effective automatically after the expiration of the six months and that he will not be able to access his property absent further order of the Court. Mr Post Must Pay the Council's Costs 28Because these are proceedings commenced in Class 4 of the Court's jurisdiction costs generally follow the event. Mr Post objects a costs order being made in the council's favour notwithstanding that they have enjoyed success in the proceedings on the basis that, first, with negotiation this could have been resolved absent the need for proceedings to be instituted, and second, because of his asserted impecuniosity. 29As to the first reason, I do not consider that the council has in any way acted unreasonably in either instituting or pursuing to prosecute the proceedings. The fact remains that had Mr Post complied with the terms of the 1996 consent as modified in 2011, the proceedings would not have been necessary. Furthermore, had Mr Post continued to participate in the proceedings it may well have been the case that today's hearing would equally have been rendered otiose, but similarly this did not occur. 30As to the second reason, the financial circumstances of Mr Post are irrelevant to the question of whether the council should be recompensed the costs it has properly incurred in bringing this application for relief (Kennedy v NSW Minister for Planning [2010] NSWLEC 269 at [17] and the authorities referred to thereat).There being no disentitling conduct by the council in this regard, it should be awarded its costs. Orders 31The orders of the Court are therefore as follows: (1) by consent, the respondent, his servants and agents, is restrained from accessing 45 Gentles Road, Armidale, being Lot 61 DP 755808 ("the property"), by motor vehicle or motor cycle via any road and/or driveway passing through, alongside or running off, the roadway or driveway connecting the properties know as 53, 53A, 53B and 53C, The Avenue, Armidale; (2) by consent, the respondent, his servants and agents, is restrained from accessing the property by motor vehicle or motor cycle on any road or driveway that has not been approved by the applicant and constructed in accordance with a development application approved by the applicant; (3) by consent, orders 1 and 2 above are suspended from operation for a period of 6 months from the date of these orders; (4) the respondent is to pay the applicant's costs of the proceedings; (5)the exhibits are to be returned; and (6)liberty to restore on three days notice. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2012