Alexander Echt and Iris Teresa Echt v Ryde City Council (21 August 1998)

[1998] NSWLEC 4

Land and Environment Court

of New South Wales

CITATION:	ALEXANDER ECHT and IRIS TERESA ECHT v. RYDE CITY COUNCIL (21 August 1998) [1998] NSWLEC 4
PARTIES:	Applicants: Alexander Echt and Iris Teresa Echt First Respondent Ryde City Council Second Respondents: TI Shallita and DM Shallita
FILE NUMBER(S):	40074 of 1998
CORAM:	Cowdroy J
KEY ISSUES:	:-
LEGISLATION CITED:	Local Government Act 1993 s 124 Environmental Planning and Assessment Act 1979
CASES CITED:	Peek v New South Wales Egg Corporation [1985-1986] 6 NSWLR 1;; Attorney General v Harris [1961] 1 QB 74 at p 94;; Warringah Shire Council v Sedevcic (1987) 63 LGRA 361); Clough v Radcliffe [1847] 1 De G & S 164 at 178-9; 63 ER 1016); Attorney General v Australian Softwood Forest Pty Ltd (1981) 36 ALR 257; Corkill v Forestry Commission of New South Wales [No 2] (1991) 73 LGRA 126 ; Forestry Commission of New South Wales v Corkill (1989) 73 LGRA 247
DATES OF HEARING:	18 August 1998
DATE OF JUDGMENT:	08/21/1998
LEGAL REPRESENTATIVES:	Mr C R Ireland (Solicitor) Ms S A Duggan (Barrister) Mr A R D'Angelo (Solicitor)

JUDGMENT:

Contents	Page
Institution of Proceedings	3
The Present State	4
The Findings	4
The Relief	6
Costs	8

IN THE LAND AND MATTER No. 40074 of 1998

ENVIRONMENT COURT CORAM: Cowdroy AJ

OF NEW SOUTH WALES DECISION DATE: 21 August 1998

ALEXANDER ECHT and IRIS TERESA ECHT

Applicants

v

RYDE CITY COUNCIL

First Respondent

T I SHALLITA and D M SHALLITA

Second Respondents

REASONS FOR JUDGMENT

1. The applicants seek a declaration against the first respondent (“the Council”) in relation to the non-compliance with two conditions of Building Application 1007/95. As against the second respondents, the applicants claim a declaration and orders requiring them to execute the outstanding works. Such application had been made for approval to effect certain alterations to premises known as 36A Melville Street, Ryde (“the premises”) by the second respondents. Work was effected to the premises throughout 1996 pursuant to that application, but work was stopped by Council in December 1996 upon complaint by the adjoining neighbour, namely the applicants. Upon investigation by officers of the Council, it was found that work effected to the premises had been carried out otherwise than in accordance with the consent. Accordingly an amended Building Application was lodged with Council and approved, subject to certain conditions. Those conditions related to the protection of the privacy of the applicants’ premises. The two relevant conditions provided as follows:-

· Provide a 1.5 metre high permanently fixed trellis and climbing plants along the southern elevation of the rear deck.

· Provide a 900 millimetre high screen above the fence height along the southern elevation to prevent loss of privacy from the pool store area and raised area outside the rumpus room rear door.

2. By December 1997 all building work to the subject premises had been effected. On 16 February 1998 the applicants wrote to the Mayor advising that work on the extension to the subject premises had effectively stopped “some three months ago”, the letter also pointed out that no effort had been made to install the screening as directed by the Council.

3. In response to the request, the Mayor referred the matter to the General Manager. On 26 February 1998 the applicants wrote to the General Manager expressing their frustration at the Council’s failure to enforce the conditions of consent of the amended Building Application, namely the provision of privacy screening. The letter advised that meetings and inspections with the second respondents had been promised (presumably by Council) but no information had been forwarded to the applicants for more than six months.

4. The second respondents wrote to the Council by letter dated 3 March 1998 reporting a visit of a Council officer, Mr Nagle, and stating, inter alia, that further external work, including the screens, “will be expected to be completed pending financial viability, within the next six months”.

5. By letter dated 6 March 1998 the Council replied to the applicants and stated, inter alia, that the owner had not requested a final inspection “as there are still outstanding works to be completed prior to the application being finalised”.

The letter also contained the following statement:-

“Under the provisions of the Local Government Act 1993 (as amended), the Council has no power to enforce the owners to complete the works within a set period of time.”

The letter also stated that the owner had indicated that works “will be completed as soon as sufficient funds are available”.

6. By letter dated 13 March 1998 solicitors for the applicants wrote to the General Manager of the Council, pointing out that the subject premises had been occupied although the conditions directed to ensuring their clients’ privacy, namely the erection of the screening, had not been satisfied. The letter suggested action which could be taken by Council.

7. Mr Nagle on behalf of the Council, responded on 25 March 1998 to the applicants’ solicitor’s letter dated 13 March 1998, and advised that correspondence had been received from the second respondents. The letter states that Council would take no action until July 1998. Such letter was obviously not received by the applicants’ solicitor as at 30 March 1998. By letter of that date the applicants’ solicitor advised that he was preparing the necessary application to this Court. Upon receipt of that letter, Mr Nagle telephoned the applicants’ solicitor. The letter had obviously not been received. The view was taken by the applicants’ solicitor that litigation was required, irrespective of the Council’s response.

Institution of Proceedings

8. By application filed on 2 April 1998, the applicants sought a declaration that the Council had wrongly refused to take any action under the Local Government Act or at all to enforce certain conditions of Building Approval 1007/95 issued to the second respondents. That is the only relief claimed against the Council. In relation to the second respondents, a declaration was sought that the building was erected on the subject premises other than in accordance with certain conditions of such approval and an order that compliance be made therewith within twenty one days.

9. The evidence discloses that the first callover in the proceedings was made on 5 May 1998. The proceedings were adjourned to 12 May 1998 on the undertaking of the second respondents that “the work” would be completed by the next callover. On 6 May 1998 Mr Nagle inspected the subject premises and observed that the privacy screens had been erected. The matter was again called over on 12 May 1998, but there was a dispute as to the adequacy of the work effected by the second respondents and in consequence a site inspection was proposed before the next callover fixed for 26 May 1998. On 21 May 1998 a site inspection took place at which it was observed that there was a gap between the surface of the terrace and the base of the screen. On 26 May 1998 a timetable for the hearing of the matter was provided by the Registrar of this Court, in view of the disagreement remaining between the parties concerning the adequacy of compliance. On 1 June 1998 the applicants’ solicitor had a conversation with one of the second respondents wherein it was agreed that the lattice would be lowered to fill in the gap at the base of the screen as it then existed. Thereafter, although draft consent orders were prepared on the basis that the second respondents would complete the work within twenty one days, it was never executed because of a dispute between all parties concerning the costs of the application.

The Present State

10. The evidence discloses that screens have now been erected. However there remains a substantial gap between the base of the screen and the deck which erodes, to a degree, the effect of the screen as a privacy measure. Further, the planting of vegetation to climb on the screen has not been effected. The second respondents have attempted to grow a vine over the trellis which has died. Instead, the second respondents have applied a transparent shade cloth in an attempt to provide some privacy. The proposed terms of settlement make it clear that the applicants would be content to have a shade cloth which is more dense, that is to say, with an obfuscation factor of greater than fifty per cent to cover the 1.5 metre trellis along the southern elevation of the rear deck to the floor of the rear deck. So far as Council is concerned, the works have been completed in accordance with the approval.

The Findings

11. Substantial alterations over many months had been effected to the subject premises and work thereon was completed in approximately December 1997. It was a matter of great consequence to the applicants that their privacy be retained and it was in consequence of their agitation that the subject condition was inserted for their benefit. The building works involved the creation of the new deck which is located high above the applicants’ land and directly impacts upon the privacy of that land. The conditions requiring the provision of the fixed trellis and climbing plants along the southern elevation was obviously intended to preserve the amenity of the premises of the applicants, such amenity being a matter for consideration in the determination by Council to grant the amended approval.

12. No work took place towards this relatively simple matter, and by February 1998 the applicants were justified in their concern that the work would not be fulfilled. Correspondence which passed between the second respondents and the Council records that compliance with the subject conditions was not, so far as the second respondents were concerned, a matter of high priority. Indeed, the letter to the Council is remarkably vague. The second respondents’ letter states that the external work “will be expected to be completed pending financial viability, within the next six months”. The applicants contend that, taking into account the extensive cost of renovations made to the subject premises, it was ridiculous to suggest that such a minor matter as the erection of a screen was a matter of financial consequence. I consider that there is merit in such submission.

13. The Council elected to treat such letter as a satisfactory explanation and informed the applicants that it would take no action until July 1998. Such a response was unsatisfactory taking into consideration the fact that a condition remained outstanding which had been specifically imposed for the benefit of an adjoining household. The Council must have shared the applicants’ concern since it imposed the very condition which was unfulfilled. Council had a responsibility to ensure that its approvals were carried into execution within a reasonable period where no specific time limit had been imposed. To this extent, the building approval was deficient. However, this circumstance did not prevent the Council from requiring the second respondents to fulfil the conditions. The Council was on notice that the provision of a screen was of critical importance to the applicants. The appropriate course was for Council to issue an order under Item 30 of s 124 of the Local Government Act, as had been suggested in the applicants’ solicitor’s letter dated 13 March 1998.

14. The lack of action by the Council obviously inflamed a situation which was causing great consternation to the applicants, who regarded the Council as failing in its duty. There is no doubt that the Council, as the approving authority, has the responsibility to ensure that the requirements of the Environmental Planning and Assessment Act 1979, and of any approval granted thereto, are fulfilled (see Peek v New South Wales Egg Corporation [1985-1986] 6 NSWLR 1; Attorney General v Harris [1961] 1 QB 74 at p 94; Warringah Shire Council v Sedevcic (1987) 63 LGRA 361). In the circumstances, I consider that the applicants were entitled to approach this Court for relief pursuant to s 123 of the Environmental Planning and Assessment Act.

15. Following service of the application, the second respondents attempted to comply with the requirements of the condition. However, the screen that was erected was inadequate to provide privacy, as is shown by the photographs. The provision of planting was obviously an essential ingredient. A desultory attempt was made to provide vegetation. In subsequent negotiations, and before this Court, the applicants acknowledged that the provision of shade cloth would be effective to provide privacy, and such material would achieve the desired objective.

16. The Council’s submission that the condition has been satisfied is puzzling. It is obvious that the screen does not provide privacy in its present form and planting is non-existent. The shade cloth that has been provided is clearly inadequate to provide any screening. The condition imposed by Council was intended to provide privacy which has not yet been achieved.

The Relief

17. The applicants seek declaratory relief against the Council in the following terms:-

“A declaration that the First Respondent has wrongly refused to take any action under the Local Government Act, or at all, to enforce certain conditions of Building Approval 1007/95 issued by it to the Second Respondent(s).”

The Council resists such declaration and asserts that a declaration, without any order being sought against it, is inappropriate. I do not agree. Although, historically the courts preferred not to make “bare declarations” (see Clough v Radcliffe [1847] 1 De G & S 164 at 178-9; 63 ER 1016), it has now been accepted in Australia that such declarations can be made: see Attorney General v Australian Softwood Forest Pty Ltd (1981) 36 ALR 257 (per Gibbs CJ at p 258). Section 20(2)(c) of the Land and Environment Court Act 1979 specifically empowers this Court to make declarations of right in relation to any right, obligation or duty, or the exercise of any function conferred, inter alia, by a planning or environmental law. This approach was adopted by this Court in Corkill v Forestry Commission of New South Wales [No 2] (1991) 73 LGRA 126 and the approach of the Court was upheld by the New South Wales Court of Appeal in Forestry Commission of New South Wales v Corkill (1989) 73 LGRA 247. Although in that case the declaratory relief was made in relation to a government department, there is no reason why declaratory relief cannot also be extended to a Council. It serves the purpose of providing a clear statement to a Council, as a public authority, of legal rights, and can provide a basis from which Council can be expected to act.

18. The second respondents had received no prior notice of the institution of the proceedings and appear to have attempted to comply with the Council’s order. However, the fact remains that the attempts have failed to achieve the very purpose which was intended by the condition. In the circumstances, it is appropriate to make Declaration No 2 and Order No 3.

19. In so far as it could be considered that the terms the declaration as sought suggests some male fides on behalf of the Council, this is clearly not the case. In lieu of the words “wrongly refused” the Court will substitute the word “failed” in fulfilling the prayer for such other order as the Court deems appropriate. Further, as to Order No 3, being cognisant of the fact that the applicants are content to have shade cloth, an addition shall be made to the terms of Order 3 by the addition of the words “by the supply and installation of shade cloth having an obfuscation factor of more than fifty per cent”.

Costs

20. I have heard argument on costs and should say, at the outset, that it is a shame that a matter of such a nature could not have been resolved without the attendant costs of litigation. However, as this was not possible and as the applicants were entitled to have their claim fully considered by the Court, as has been done, the Court will make the appropriate orders. The Court has a wide discretion in relation to costs. Having considered the matter, I am of the view that had the Council taken more positive action to ensure that the conditions of its building approval were fulfilled, the proceedings would have been unnecessary. In the circumstances, the Court makes an order that the Council bear the cost of the applicants and also of the second respondents. In making such determination, the Court is mindful of the pivotal role which Councils should play in disputes of this type. Councils have an obligation to ensure that, so far as is possible, active steps are taken to settle such a dispute. I reject the submission of Council that this was a dispute between two neighbours, in respect of which the Council had no role to play. Accordingly the declarations and orders which the Court makes are as follows:-

1. A declaration that the first respondent has failed to take any action under the Local Government Act, or at all, to enforce certain conditions of Building Approval 1007/95 issued by it to the second respondents.

2. A declaration that the second respondents have erected a building on land known as 36A Melville Street, Ryde other than in accordance with certain conditions of Building Approval 1007/95 thereby contravening the Local Government Act 1993.

3. An order that the second respondents comply with certain conditions of Building Approval 1007/95 within twenty one days by the supply and installation of shade cloth having an obfuscation factor of more than fifty per cent.

4. An order that the Council pay the costs of the applicants and the second respondents of these proceedings.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 8 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE ACTING JUSTICE DENNIS A COWDROY OAM

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