Anastasiou v Wallace

[2020] NSWLEC 14

Land and Environment Court

New South Wales

Medium Neutral Citation:	Anastasiou v Wallace [2020] NSWLEC 14
Hearing dates:	27 November 2019
Date of orders:	04 March 2020
Decision date:	04 March 2020
Jurisdiction:	Class 4
Before:	Pain J
Decision:	See par [62] of judgment
Catchwords:	CIVIL ENFORCEMENT – statutory construction – development consent not required before work the subject of court orders made by consent can be undertaken
Legislation Cited:	Environmental Planning and Assessment Act 1979 Pt 4 Div 4.1 ss 4.2, 4.3, 4.4, Pt 5 Div 5.1 ss 5.2, Pt 6 Div 6.2 (ss 6.3-6.5), Div 6.3 (ss 6.6-6.11), Pt 9 Div 9.5 ss 9.45, 9.46, former 76A, 76C, 80A, 81A, 109H, 109M, 123, 124 Interpretation Act 1987 ss 3, 32, 33 Uniform Civil Procedure Rules 2005 r 36.15
Cases Cited:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 BH Australia Constructions Pty Ltd v Kapeller [2019] NSWSC 1086 Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308 Cando Management and Maintenance Pty Ltd v Cumberland Council [2019] NSWCA 26 Codelfa Constructions v State Rail Authority of NSW (1982) 149 CLR 337; [1982] HCA 24 Community Association DP270447 v ATB Morton Pty Ltd [2019] NSWCA 83 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 F Hannan Pty Ltd v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306 Fordham v Environment Protection Authority [2018] NSWCA 167 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 Great Lakes Council v Lani (2007) 158 LGERA 1 King v Potts [2015] NSWLEC 22 Kirkpatrick v Kotis (2004) 62 NSWLR 567; [2004] NSWSC 1265 Medical Council of New South Wales v Lee [2017] NSWCA 282 Minister Administering the Crown Lands Act 1989 v New South Wales Aboriginal Land Council (2018) 231 LGERA 145; [2018] NSWLEC 26 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Roden v Bandora Holdings Pty Ltd (2015) 213 LGERA 103; [2015] NSWLEC 191 Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 Rossi Living Choice Australia Ltd (No 2) [2015] NSWCA 301 Rossi v Living Choice Australia Ltd (No 4) [2013] NSWLEC 136 Rossi v Living Choice Australia Ltd [2015] NSWCA 244 State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 University of New South Wales v Moorehouse (1975) 133 CLR 1 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Witham v Holloway (1995) 183 CLR 525
Texts Cited:	Pearce & Geddes Statutory Interpretation in Australia
Category:	Principal judgment
Parties:	Savva Anastasiou (First Applicant) John Anastasiou (Second Applicant) Richard Wallace (First Respondent) Elizabeth Wallace (Second Respondent) Owners of Strata Plan No 69470 (Third Respondent) Atcha Pty Ltd (Fourth Respondent) Northern Beaches Council (Fifth Respondent)
Representation:	COUNSEL: J Lazarus SC (First and Second Applicants) Submitting appearance (First, Second and Third Respondents) B Ilkovski (Fourth Respondent) N Eastman (Fifth Respondent)   SOLICITORS: Kardosscanlan (First and Second Applicants) N/A (First to Third Respondents) Tom Howard Legal (Fourth Respondent) Storey & Gough (Fifth Respondent)
File Number(s):	19/234971

Judgment

1. The First and Second Applicants (the Anastasious) are the owners of premises with the approved use of a restaurant in a mixed-use development in North Steyne Manly (the premises). The premises also contain shops and a number of residential units. The First and Second Respondents (the Wallaces) are the owners of a unit in the residential strata plan. The Third Respondent is the owner’s corporation of the strata plan. The Fourth and Fifth Respondents are Atcha Pty Ltd (purchasers of the restaurant) and the Northern Beaches Council (the Council) respectively.

2. The Anastasious seek declarations in these Class 4 proceedings that works carried out pursuant to court orders in earlier proceedings do not require development consent by the Council. At issue is whether works carried out by the Anastasious pursuant to 2015 consent orders and works to be carried out by the Anastasious pursuant to 2019 consent orders require development consent to be obtained from the Council.

Statement of agreed facts

3. The statement of agreed facts filed on 27 September 2019 (SOAF) which became Ex A provides (attachments excluded):

STATEMENT OF AGREED FACTS

Background

1.   Development Application 25/2000 was granted by Manly Council (now Northern Beaches Council) (Council) on 1 June 2000 for a building comprised of two ground floor shops and 11 residential apartments at 43 - 45 North Steyne Manly 2095 (Manly Building). AF –1 is a copy of the first page of the consent.

2.   Savva and John Anastasiou, the First and Second Applicants, are the original owners of a restaurant located within the Manly Building having contracted to purchase the premises from the developer in May 2003. Settlement occurred in or about September 2003.

3.   Development Application 119/2003 was granted on 7 July 2003 for the fit out of Shop 2 at 43 – 45 North Steyne Manly (Shop 2). AF –2 is a copy of the consent.

4.   Savva and John Anastasiou are major shareholders in China Beach Restaurant Pty Ltd, the Third Applicant, which ran a restaurant called China Beach during the period May 2010 to March 2015 (Restaurant). Together the First to Third Applicants are referred to as the Anastasiou Parties.

5.   A masonry shaft runs through the residential section of the Manly Building from the roof level of Shop 2 to the roof of the building. The owner of Shop 2 is benefitted by a registered easement that permits use of the shaft for the purpose of the kitchen exhaust. The registered easement does not extend to permit use of the roof.

6.   Richard and Elizabeth Wallace are the registered owners of Lot 11 in the residential strata, Strata Plan 69470. Lot 11 is located on level 4 of the Manly Building above the Restaurant. The Residential Owners Corporation is the Third Respondent.

2009 Consent

7.   Development Application 48/2009 was granted on 10 July 2009 by Council. This consent was for a change of use to the Restaurant. AF-3 is a copy of the consent originally granted by the Council to DA 48/2009.

8.   A section 96(1A) application was approved on 28 September 2009 which amended certain conditions of the original consent. AF-4 is a copy of the section 96 modification including a copy of the Tracey Fellows Report dated 16 May 2009 which is referred to at condition ANS 11 of the section 96 modification.

9.   The modified consent will hereafter be referred to as the 2009 Consent.

2011 Proceedings

10.   In 2011, Class 4 Land & Environment Court Proceeding 41040 of 2011 were commenced by Elizabeth and Richard Wallace (lots owners of unit 11 at the Manly Building) against the Anastasiou Parties (2011 Proceedings). The Summons alleged that the Restaurant had been operating in breach of several of the conditions of the 2009 Consent, especially those relating to noise, odour, ventilation and air quality. AF- 5 is a copy of the Summons.

Consent Orders

11.   On 12 March 2013, the Court made orders by consent in the 2011 Proceedings (2013 Orders). AF-6 is a copy of the 2013 Orders.

12.   Attachment 1 to the 2013 Orders is the Further Amended Points of Claim.

13.   On 30 October 2014, further orders were made by consent in the 2011 Proceedings (2014 Orders). AF-7 is a copy of the 2014 Orders.

14.   On 11 March 2015, the Applicants in the previous proceedings filed a Notice of Motion and supporting affidavit. AF-8 is a copy of the Notice of Motion and supporting affidavit.

15.   On or about 29 March 2015, the Anastasiou Parties removed or caused to be removed the kitchen exhaust fan from the Restaurant.

16.   On 24 April 2015, Mr Roger Turvey (retained as mechanical ventilation expert) issued a termination of the contract for his expert services with the Anastasiou Parties. AF -9 is a copy of the email from Mr Roger Turvey to Mr Steve Anastasiou.

17.   On or about 4 May 2015, Savva and John Anastasiou entered into a Contract for Sale with Atcha Pty Ltd to purchase Shop 2.

18.   On 3 June 2015, Doyle Edwards Anderson (DEA) (the Anastasiou's former lawyers) made enquiries with Richard Duggan of Richard Duggan Pty Ltd. AF -10 is a copy of the 3 June 2015 letter.

19.   On 5 June 2015, DEA Lawyers sent a Letter of Engagement to Richard Duggan Pty Ltd. AF -11 is a copy of the Letter of Engagement.

20.   On 14 August 2015, the Anastasiou Parties filed an Amended Notice of Motion seeking to be released from the 2013 orders and the 2014 orders. AF -12 is a copy of the Amended Notice of Motion.

21.   On 16 October 2015, Justice Pain made further orders by consent in the 2011 Proceedings (2015 Orders). The 2015 Orders made provision for the Anastasiou Parties to carry out the works described in a specification prepared by an engineer, Mr Richard Duggan (Specification) to his reasonable satisfaction within 60 days (order 1) and granted liberty to apply in relation only to extend the time for compliance with Order 1 (order 6). The Specification made provision for various works, including in particular the installation of a filtration system known as a Smog Hog and a new exhaust fan on the roof of the building. AF-13 is a copy of the 2015 Orders.

22.   AF-14 is a copy of the Specification.

23.   On or about 17 July 2016, Savva Anastasiou lodged a Development Application for works on the roof as contained in the Specification.

24.   On 16 November 2016, a further Development Application was lodged for the Specification by Mr James Diplas. Mr Diplas is the Contractor employed by the Anastasiou Parties to complete the Specification. AF-15 is a copy of the further development application.

25.   On 29 March 2017, Thomas Prosser of Council wrote a Report recommending refusal of the Development Application. AF -16 is a copy of the Report.

26.   Consent was refused by the Northern Beaches Independent Assessment Panel (NIAP) on 20 April 2017 for the following reason:

Pursuant to section 79C(1) (a)(iv) of the Environmental Planning and Assessment Act 1979 and Clause 49 of the Environmental Planning and Assessment Regulation 2000, owner's consent has not been provided with the application.

AF-17 is a copy of the Council's determination dated 20 April 2017.

27.   The Anastasiou Parties filed a Notice of Motion in the 2011 Proceedings on 26 September 2017 seeking an order for extension of the time in which to comply with the 2015 Orders and an order that the Third Applicant in the 2011 Proceedings provide owners consent to a development application for the Specification. AF-18 is a copy of the Notice of Motion.

Extensions of the 2015 orders

28.   On 6 October 2017, orders were made by consent including an order extending compliance with order 1 of the 2015 Orders to 90 days after the date of the orders (order 1) and the proceedings be referred to mediation (order 2). AF-19 is a copy of the 6 October 2017 orders.

29.   On 15 December 2017, orders were made extending the time for compliance with order 1 of the 2015 Orders to 28 February 2018. AF-20 is a copy of the 15 December 2017 orders.

Mediation

30.   On 21 November 2017, as a result of a mediation, the parties to the 2011 Proceedings entered Terms of Agreement including that the Anastasiou Parties will provide the details of an easement in registrable form by 30 November 2017. AF-21 is a copy of the Terms of Agreement.

Works commenced

31.   On 2 February 2018, the Anastasiou Parties provided the details of the easement they required in registrable form.

32.   On 21 February 2018 to about 2 March 2018, the Anastasiou Parties carried out works on the roof of the building pursuant to the 2015 Orders. Photographs of the works that were carried out are at AF-22.

33.   The smog hog stands approximately 2.2 metres above the existing roof and the vertical discharge duct is approximately 3 metres above the existing roof.

Cease Work Order (March 2018)

34.   On 2 March 2018, Council issued a Cease Work Order to the Proprietors of Strata Plan 69470. AF-23 is a copy of the Cease Work Order.

35.   On 6 April 2018, orders were made to extend the time for compliance with order 1 of the 2015 Orders until 20 April 2018. AF-24 is a copy of the 6 April 2018 orders.

36.   On 16 April 2018, the Council revoked the Cease Work Order. AF-25 is a copy of a letter from the Council revoking the Cease Work Order.

37.   On 27 April 2018, the court made further orders including extending the time for compliance with order 1 of the 2015 Orders to 20 June 2018 (order 1). AF-26 is a copy of the 27 April 2018 orders.

38.   On 18 June 2018, the Council issued to the proprietors of Strata Plan 69470 a Notice of Intention to give an order regarding unauthorised development work. AF-27 is a copy of the Notice of Intention.

39.   On 21 June 2018, Bannerman Lawyers (legal representatives for Mr Richard Duggan) sent to the parties an email forwarding correspondence from Mr Duggan. AF-28 is a copy of that correspondence.

Dispute regarding compliance with 2015 Orders

40.   On 13 July 2018, a Notice of Motion was filed seeking orders for the time for compliance with order 1 of the orders made in the 2015 Orders be extended. AF-29 is a copy of the Notice of Motion.

41.   On 20 July 2018, orders were made by Acting Justice Molesworth including:

a)   The question to be resolved is whether order 1 made by Justice Pain on 16 October 2015, deleting words: "to reasonable satisfaction of Richard Duggan of Richard Duggan Pty Ltd within 60 days of the date of these orders" has been satisfactorily completed.

b)   Leave is granted to the Northern Beaches Council to join as a party to the proceedings should it wish to do so.

AF-30 is a copy of the orders made by Acting Justice Molesworth on 20 July 2018.

42.   On 21 March 2019, Storey & Gough Lawyers (legal representatives for the Council) confirmed that the Council's position is it would not be applying to the Court to participate in the proceedings as an active party. A copy of the Storey & Gough letter dated 21 March 2019 is AF-31.

Agreement reached between the parties - 2019 Orders

43. After a hearing on 26 April 2019, on 9 May 2019, Justice Pain made consent orders pursuant to UCPR r 36.15(2), varying the 2015 Orders by making provision for the carrying out of further works in order to make the kitchen exhaust system comply with the terms of the 2009 Consent (order 2), which are specified in order 3 (2019 Orders). AF-32 is a copy of the 2019 Orders.

44.   The works required to be carried out under the 2019 Orders include the erection of structures attached to the roof of the subject building.

45. The required works are a “work” and fall within the definition of “development” in section 1.5 of the Environmental Planning and Assessment Act 1979 (NSW) (Act).

46.   The works are for the use and purpose of a restaurant.

47. Development for the purposes of a restaurant requires development consent pursuant to section 4.2 of the Act.

4. The Council issued a notice of intention in June 2018 to issue demolition and restore works orders concerning the roofworks carried out by the Anastasious.

5. A summary of the SOAF is that Class 4 proceedings no 2011/41040 were commenced in 2011 by the Wallaces concerning amenity impacts from the Anastasious’ restaurant (as directors of China Beach) on the Wallaces’ apartment. The respondents in those proceedings were the Anastasious, China Beach Restaurant Pty Ltd (the restaurant in which the Anastasious were major shareholders) and later Atcha Pty Ltd (incoming purchaser of the restaurant). Consent orders were made by judges of the Court in 2013, 2014, 2015 and 2019 requiring inter alia the Anastasious to install a ventilation unit on the roof of the premises. The 2013 consent orders required that development consent be obtained for certain work. The 2015 consent orders did not so provide. The Anastasious carried out works pursuant to the 2015 orders between February and March 2018. The 2015 orders made in proceedings 2011/41040 are the subject of the first declaration sought in the summons.

6. Not identified in the SOAF is that Class 4 proceedings were commenced by the Wallaces in 2017 (no 2017/291412) relying on the 2011 summons. The parties were the same as in the 2011 proceedings. These are the proceedings referred to in the second declaration sought in the summons. On May 2019 I made further orders for the carrying out of further works by consent in proceedings no 2017/291412 varying the 2015 orders made in the 2011 proceedings. In the SOAF, the parties treat all consent orders made by the Court in 2013, 2014, 2015 and 2019 as part of the original 2011 proceedings. Practically that is what has occurred over that period albeit in two separate proceedings.

7. These Class 4 proceedings (2019/119532), the third set of proceedings concerning the premises, were commenced by the Anastasious. The parties informed me this was done because Pepper J considered the 2017 proceedings were finalised and could not be reopened and Pepper J also suggested that the Council should be joined as a party. This is the first time the Council has been a party in any proceedings concerning the premises, it having declined in 2018 the invitation to join as a party in the 2017 proceedings. The Wallaces and the Third Respondent have filed submitting appearances. The principal contradictor is the Council, with Atcha making brief submissions in support of the Anastasious.

Environmental Planning and Assessment Act 1979

8. The Environmental Planning and Assessment Act 1979 (EPA Act) provides:

Part 4 Development assessment and consent

Division 4.1 Carrying out of development—with consent, without consent and prohibited

4.1 Development that does not need consent (cf previous s 76)

…

4.2 Development that needs consent (cf previous s 76A)

(1)   General 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 is carried out in accordance with the consent and the instrument.

Maximum penalty—Tier 1 monetary penalty.

(2)   For the purposes of subsection (1), development consent may be obtained—

(a)   by the making of a determination by a consent authority to grant development consent, or

(b)   in the case of complying development, by the issue of a complying development certificate.

…

4.3 Development that is prohibited (cf previous s 76B)

...

4.4 Relationship of this Division to this Act (cf previous s 76C)

This Division is subject to the other provisions of this Act, unless express provision is made to the contrary.

…

Part 9 Implementation and enforcement

…

Division 9.5 Civil enforcement proceedings

…

9.45 Restraint etc of breaches of this Act (cf previous s 123)

(1)   Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.

(2)   Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.

(3)   Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.

9.46 Orders of the Court (cf previous s 124)

(1)   Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.

(2)   Without limiting the powers of the Court under subsection (1), an order made under that subsection may—

(a)   where the breach of this Act comprises a use of any building, work or land—restrain that use,

(b)   where the breach of this Act comprises the erection of a building or the carrying out of a work—require the demolition or removal of that building or work, or

(c)   where the breach of this Act has the effect of altering the condition or state of any building, work or land—require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed.

…

Interpretation Act 1987

9. Section 32 of the Interpretation Act 1987 provides:

Part 5 Construction of Acts and instruments

…

32 Instruments to be construed so as not to exceed the powers conferred by the Acts under which they are made

(1)   An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made.

(2)   If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made:

(a)   it shall be a valid provision to the extent to which it is not in excess of that power, and

(b)   the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.

(3)   This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made.

Uniform Civil Procedure Rules 2005

10. Rule 36.15 of the Uniform Civil Procedure Rules 2005 (UCPR) provides:

36.15 General power to set aside judgment or order

(1)   A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

(2)   A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.

Extracts of relevant instruments and orders

2009 development consent

11. The Council issued development consent no 48/09 subject to conditions in July 2009 and these included:

ANS04

Noise

The construction and ongoing use of the premises, building services, equipment, machinery and ancillary fittings shall not give rise to “offensive noise” as defined under the provisions of the Protection of the Environment Operations Act 1997.

Reason: To ensure compliance with legislation and to protect public health and amenity.

ANS05

Acoustic Compliance Report:

An acoustic Compliance Report, prepared by a qualified and experienced Acoustical Consultant, approve by Council, but at the expense of the Applicant, shall be submitted to Council certifying that noise levels emitted from the (building’s/premise’s) (services, equipment, machinery and ancillary fittings) does not exceed 5dBA, above the background level in any octave band from 63.0 Hz centre frequencies, inclusive at this boundary of the site. Note: This method of measurement of sound shall be carried out in accordance with Australian Standard 1055.1-1989. The Acoustic Compliance Report is to be prepared within two months of the Occupation Certificate being granted and at a time when the restaurant is in full operation.

Reason: To ensure compliance with legislation and to protect public health and amenity.

ANS06

Mechanical Ventilation:

Documentation supplied by a practising mechanical engineer certifying that the mechanical exhaust ventilation system, as installed, complies with AS1668 must be provided to Council/Accredited Certifier prior to the issue of the Occupation Certificate.

Reason: To ensure compliance with legislation and to protect public health and amenity.

ANS07

Air Emissions:

The use of the premises shall not give rise to air impurities in contravention of the Protection of the Environment Operations Act 1997 and shall be controlled in accordance with the requirements of this Act.

Reason: To ensure compliance with legislation and to protect public health and amenity.

…

ANS09

All proposed towers, ventilation/ducting, exhaust fan structures and any other structures, chillers and condensers for air conditioning on the roof are to be the subject of a separate Development Application.

…

ANS21

A system of filtered mechanical exhaust ventilation shall be provided to the kitchen with hoods over all cooking and heating appliances, designed in accordance with AS1668, parts 1 and 2, with the exhaust air discharged above roof level.

Modification of 2009 consent conditions

12. Some of the conditions were modified in September 2009 as follows:

ANS06

Air Quality

The construction and ongoing use of the premises, building services, equipment, machinery and ancillary fittings including mechanical ventilation, shall not give rise to air pollution. All works shall ensure air quality controls are in place and all activity is in accordance with the Protection of the Environment Operations Act 1997 and Protection of the Environment Operations Clean Air Regulation 2002.

ANS09

All proposed towers, ventilation/ducting, exhaust for structures and any other structures, chillers and condensers for air conditioning on the roof, except for the duct measuring 470mm x 510mm up to a height of 500mm above the existing roof adjacent to the duct relating to the subject premises as identified in DP 1047991 (Sheet 3 of 6) as “K” (easement for kitchen exhaust) and SP 69948 and SP69470 are to be the subject of a separate Development Application to Council.

ANS10

A grease arrestor is required for the proposed development. The grease arrestor is to be located wholly within the Retail Strata SP 69948. The grease arrestor is to be replaced in accordance with Drawing No A.1 05 – Grease Arrestor Details (2 sheets) prepared by Burley Katon Halliday Pty Ltd dated 31 July 2009 and received by Council on 11 August 2009 and completed on or to the issue of Occupation Certificate.

…

2013 orders

13. Following commencement of proceedings in 2011 the Court made the following orders (in part) on 12 March 2013:

By consent the Court:

1.   orders the Respondents to do the work and fulfil their obligations as set out in, and in accordance with, the Schedule below;

…

Schedule

…

Initial works

2.   On the later of (i) 28 days from the date of these orders or (ii) 28 days after any necessary approval of or determination by Manly Council, the Respondents are to build up the masonry shaft for the China Beach kitchen exhaust to 300mm above roof height with lightweight “Hebel” brick construction including sealing of all joints with fire rated mastic and mortar. The work will involve the removal and replacement of the top section of the mechanical duct, the roof sheets and all external flashings, all of which shall be made good upon completion of the work the subject of this order. The work is to be done in a proper and workmanlike manner.

…

[The consent orders provided for an acoustic engineer, air quality and odour measurement engineer and a Building Code of Australia (BCA) expert to be appointed and undertake work specified and make recommendations.]

Recommended works

11.   The Respondents at their own cost are to:

11.1   within 21 days after receipt of the reports that set out the Acoustic Expert Recommended Works, the Odour Expert Recommended Works and the BCA Expert Recommended Works, make applications for (and pursue) all necessary approvals by Manly Council, and any other necessary approvals, to undertake the Acoustic Expert Recommended Works, the Odour Expert Recommended Works and the BCA Expert Recommended Works

11.2   lodge any necessary appeal to the Land and Environment Court 45 days after making any development application; and

…

15.   The parties agree that the Acoustic Expert and the Odour Expert are each at liberty to consider whether any plant and equipment should be installed on the roof of the Building.

16.   To the extent that the Acoustic Expert Recommended Works or Odour Expert Recommended Works involve or require work to be carried out on the roof of the Building then:

16.1   any plant and equipment may be installed on the roof (but not above the Wallaces’ bedrooms);

16.2   the Applicants shall ensure that the Respondents are granted an easement to install, keep and maintain such plant and equipment on the roof; and

16.3   the Respondents shall pay all reasonable costs of granting the easement, including the Applicants’ reasonable legal costs, but not the value of the easement itself.

2014 consent orders

14. The Court made the following consent orders (in part) on 30 October 2014:

The Court:

1   notes that these orders are supplementary to the orders made by the Court on 12 March 2013 (“the 2013 orders”) and are made for the purpose of working out the 2013 orders;

…

Extension of fire rated shaft and repair of duct

5   orders that within 28 days:

(a)   the exhaust capping be removed, inspected openings sealed with fire rated mastic;

(b)   measure the height of the shaft to ensure it is 300mm above the roof covering;

(c)   the roof capping completely enclosed and sealed to prevent water ingress and/or water ponding around the top of the shaft

as more particularly described in the Halstead Nov 2013 report; and

(d)   the kitchen exhaust duct (within the shaft) should be repaired and/or restored to the condition in which the system was originally installed and certified properly separated from the occupied space, and sealed at roof level in order to permit operation as originally intended until remedial works for the kitchen exhaust system are authorised and implemented.

Kitchen ventilation/odour

6   notes the parties have engaged Roger Turvey of Roger Turvey Associates Pty Ltd as mechanical ventilation expert as if the provisions of clauses 6.7, 7, 11, 14 and 17-21 applied to Mr Turvey in the same way they apply to the Acoustic expert, the Odour expert and the BCA expert.

7   orders that the Respondent carry out or cause to be carried out the following works as more particularly described in the report of Roger Turvey dated September 30 2014 (“the Turvey Sept 2014 report”):

(a)   within 14 days repair and/or restore the kitchen exhaust system to a condition which complies with AS1668.2-1991 and operating at the design exhaust rate of 3,000L/s with a satisfactory noise emission level;

…

(d)   in the event supplementary fan and/or duct work extension are required then there shall be a separate specification and design drawing prepared and the provisions of orders 11.1, 11.2, 11.3, 11.4 and 11.5 of the Schedule to the 2013 orders shall apply as if the Turvey recommendations and the mechanical ventilation work were included therein;

…

2015 consent orders

15. The Court made the following consent orders (in part) on 16 October 2015:

1   orders that the First, Second and Third Respondents carry out or cause to be carried out the works in the “Specification for new kitchen ventilation system for ground floor commercial tenancy no. 2, 43-45 North Steyne, Manly. NSW (“the Premises”) prepared by Richard Duggan Pty Ltd Spec No. 2015/25, Rev. B-2.7.2015 to the reasonable satisfaction of Richard Duggan of Richard Duggan Pty Ltd within 60 days of the date of these orders;

…

4   orders that orders 5(d), 7 and 8 made 30 October 2014 be vacated from the date hereof;

5   notes that the Applicants do not and will not contend to the Respondents (including the Fourth Respondent) that other works required to be done pursuant to orders dated 12 March 2013 and 30 October 2014 by the Respondents have not been completed in a satisfactory manner;

…

SPECIFICATION

FOR

NEW KITCHEN VENTILATION SYSTEM

FOR

GROUND FLOOR COMMERCIAL TENANCY No.2

43-45 NORTH STEYNE, MANLY NSW

SECTION 1

GENERAL

1.1   Contract

The Mechanical Contractor shall be engaged by the owner of Ground Floor Restaurant Tenancy No. 2 to upgrade the existing Kitchen Exhaust system.

The Mechanical Services Contract shall comprise the supply and installation (and 12 months service and defect liability) of all items required to provide a new Kitchen ventilation system to the existing Tenancy to enable compliance with the Development Consent 48/09 from Manly Council. A copy of the Development Consent is included as an Appendix A.

SECTION 2

EXTENT OF MECHANICAL SERVICES

…

2.2   Description of Project

The project shall consist of the installation of a new Kitchen exhaust system to comply with the original 2009 DA approval from Manly Council for an existing commercial Kitchen located on the Ground Floor of an existing Residential/Commercial Building.

…

2019 consent orders

16. The Court made the following consent orders (in part) on 9 May 2019:

1.   The parties shall jointly, but at the cost of the First to Third Respondents, appoint Hugh Burns to provide advice and specifications on the Complete Works below, and to oversee all of the Complete Works required under these orders. The First to Third Respondents shall be responsible for paying Hugh Burns and any expert with whom Mr Burns consults, such payment being required in accordance with the terms and conditions set by Mr Burns for his engagement. The Court notes that while Mr Burns is aware of and consents to these orders, he is not functioning as a court-appointed expert.

2.   The First to Third Respondents are to carry out all works necessary to make the kitchen exhaust system for the commercial tenancy no 2. 43-45 North Steyne, Manly, NSW (Property) (including the system as it extends into the exhaust riser and on the roof of 43-45 North Steyne, Manly (together, the Exhaust System)) compliant with all conditions of the development consent DA 48/2009 (the Complete Works consisting of the Initial Works and all Recommended Works), and as further detailed in these orders.

The Initial Works

3.   The First to Third Respondents will carry out the following initial works as a minimum, and in accordance with the direction of Hugh Burns (such directions to take precedence to the extent of any inconsistency):

…

c.   remove and dispose of the existing rooftop system's ductwork and if appropriate transitions installed on the roof of 43-45 North Steyne, Manly (roof) and fabricate and install new rooftop system as per a redesign specification to be completed by Mr Burns ensuring that the ductwork lays within the agreed easement set out in the expert report of Michael Joyce filed 10 August 2018;

…

f.   supply and install further anti-vibration rubber mountings under the supports of the Exhaust System located on the roof system supports;

g.   adequately secure the base of structural supports for the Exhaust System on the roof to the parapet of the building;

h.   treat existing rust and re-apply anti corrosive and weather proofing epoxy treatment system to the smog hog;

i.   supply and install single filter presently missing from the smog hog;

j.   upgrade electrical cabling on the system for weatherproofing and provide access to access panels; and

k.   in addition to or instead of 3(a) – (j), any other works that Mr Burns, acting reasonably, directs is to form part of these initial works.

(collectively, all works required under Order 3 are the Initial Works).

Timing and general provisions relating to the Initial Works

4.   All of the Initial Works are to be completed by the First to Third Respondents under and in accordance with the direction of Mr Burns within 90 days of (and not before) either receiving confirmation from the Court that development consent is not required for the Initial Works, or from the date that the development consent for the Initial Works is granted by the consent authority.

5.   Should the Court determine that development consent is required for the Initial Works, then the First to Third Respondents are to apply for development consent as soon as reasonably practicable and use reasonable endeavours to pursue approval of the same. The Court notes that the other parties to these orders will not object to that application for development consent or any step taken by the First to Third Respondents associated with that application.

…

Determination of Compliance and Recommended Works

11.   At the completion of the Initial Works,

a.   Mr Burns and a qualified acoustic expert nominated by Mr Burns shall:

(i)   meet at the Property to inspect the Exhaust System, including in the kitchen of the Shop, in Mr and Mrs Wallace's apartment, and if necessary on the roof, while the Exhaust System is operational at full speed / capacity (and operating in accordance with AS 1688) and confer as to whether the Exhaust System complies with all relevant requirements of development consent DA 48/2009 (notably conditions ANS04, ANS05, ANS07, ANS21) and these orders including that noise emitting from the Exhaust System into Mr and Mrs Wallace's apartment is not in breach of conditions ANS04 and ANS05 of development consent DA 48/2009;

(ii)   however, following the completion of the Initial Works, should the First to third Applicants confirm in writing that the Exhaust System as installed is operating in compliance with development consent DA 48/2009, and that there is no “offensive noise” or odours at the apartment of Mr and Mrs Wallace, then no inspection under (i) will be necessary, and the parties will be deemed to have reached agreement under (i);

(iii)   if any of Mr Burns and the expert nominated by Mr Burns do not agree that the Exhaust System complies with all relevant requirements of development consent DA 48/2009 (notably conditions ANS04, ANS05, ANS07, ANS21) and these orders, then:

1.   the parties will jointly commission Mr Burns to prepare a report on any areas where non-compliance with relevant conditions of development consent DA 48/2009 or these orders is alleged;

2.   Mr Burns (with input from any experts he reasonably requires consultation with) will provide a report to the parties confirming whether in his view the Exhaust System complies with the relevant conditions / orders where non-compliance is alleged and if it does not, recommending and specifying the most cost-effective and practical way to address the non-compliance such that it becomes compliant (the Recommended Works); and

3.   Mr Burns will provide a reasonable recommended timeframe for the completion of the Recommended Works.

…

20.   The determination of any question as to the requirement for development consent for installing / constructing and operating a ventilation unit on the roof of the building at 43-45 North Steyne, Manly NSW 2095 is deferred until the determination of that question in Proceedings No. 2019/119532.

17. Further to pars 5 and 20 of the 2019 consent orders, the Court was informed that proceedings no 2019/119532 commenced by owners of a neighbouring property were discontinued, hence the need for these proceedings to resolve the issue of development consent.

Anastasious’ submissions

18. The carrying out of the works to date pursuant to the 2015 orders and the works required to be carried out pursuant to the 2019 orders do not constitute a breach of s 4.2 (former s 76A), even if they would otherwise constitute development that could only be carried out with development consent and were not exempt development.

19. The statutory basis for the contention that development consent is required, for either the works carried out to date or the proposed works to be carried out under the 2015 orders and 2019 orders respectively, is and can only be s 4.2(1) of the EPA Act. That section (being part of Div 4.1) is expressly made “subject to” the other provisions of the EPA Act due to the operation of s 4.4. Those other provisions include ss 9.45 and 9.46 (former ss 123 and 124) which were the provisions which authorised the making of the 2015 orders and 2019 orders. The use of “subject to” as a means of identifying dominant and subservient provisions was confirmed by the Court of Appeal in Medical Council of New South Wales v Lee [2017] NSWCA 282 (Medical Council) at [87].

20. On a practical level, the parties cannot have intended that a development application would be lodged, notified, dealt with and approved and a construction certificate applied for and granted and the works carried out, all within the 60 days and 90 days specified in orders 1 and 4 of the 2015 orders and 2019 orders respectively. Further, disobedience of an order of the Court is a contempt of court: Witham v Holloway (1995) 183 CLR 525 at 530.

18. If development consent was required but the Council refused to grant consent, there is no clear and certain pathway to ensure that the 2015 orders would be given effect. Such an outcome is antithetical to the statutory scheme of the EPA Act and the authority of the Court. The 2015 orders are an historical and legal fact. As orders made by a superior court of record (even if by consent), they are considered to be valid unless and until set aside: Community Association DP270447 v ATB Morton Pty Ltd [2019] NSWCA 83 at [56]. The 2015 orders could not have been varied except by consent (UCPR r 36.15(2)) or by the Court of Appeal exercising its supervisory jurisdiction.

19. Cando Management and Maintenance Pty Ltd v Cumberland Council [2019] NSWCA 26 (Cando) has no application to the present proceedings. Firstly, the issue in Cando was whether or not an order of the kind sought by the developer could and/or should have been made by the Court. In this case, no party disputes the validity or appropriateness of either the 2015 orders or the 2019 orders. The issue here is not whether orders could or should have been made under s 124 (now s 9.46) of the EPA Act. Secondly, in this case the provision said to be engaged (by the need to obtain development consent) is s 4.2(1). In contrast, in Cando the proposition accepted by the Court was that the discretion under s 124 could not be used to subvert the requirements of s 81A(1) and (2). Unlike s 4.2 (former s 76A) applicable in this case, in Cando there was no paramountcy provision such as s 76C (now s 4.4) subjecting s 81A to s 124. Thirdly, Cando dealt with a situation where there was an extant development consent and whether the requirements for a construction or occupation certificate could be overridden by a court order. Here the issue is the anterior question of whether or not development consent is required in the first place.

20. The Council’s submission that ordering a party to carry out works under s 9.46 in the absence of a development consent and a construction certificate would not be to “remedy” a breach should not be accepted. The fact that s 9.46(2) (former s 124(2)) refers to orders restraining a use, demolition or removal of a building or work and reinstatement of a building, work or land does not limit the Court’s power under s 9.46(1), as the opening words of s 9.46(2) emphasise (“Without limiting the powers of the Court under subsection (1)”). The power under s 9.46(1) is “extremely wide” and extends to the ordering of a party in breach to carry out rectifying works, which is what occurred in this case: Cando at [128]; F Hannan Pty Ltd v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306 at 311; Great Lakes Council v Lani (2007) 158 LGERA 1 at [13]-[15]. There is no distinction, as the Council contended, between a “simple remedial order” or an “order requiring rectification works” and the orders made in this case. Any of these orders would have been within the Court’s powers under s 9.46. The Court of Appeal in Rossi v Living Choice Australia Ltd [2015] NSWCA 244 (Rossi CA) and Rossi Living Choice Australia Ltd (No 2) [2015] NSWCA 301 authorised the carrying out of substantial “ameliorative orders” pursuant to s 124 to remedy breaches of the EPA Act. There was no suggestion that any form of development consent was required to comply with the Court’s orders.

21. Order 1 of the 2015 orders is unambiguous and self-contained. It imposes an absolute obligation to carry out works within a particular timeframe and is not qualified as the other orders were by the requirement to gain development approval. Neither the orders made by consent on 12 March 2013 in proceedings no 2011/41040 (2013 orders) nor the orders made by consent on 30 October 2014 proceedings no 2011/41040 (2014 orders) had any further role to play in relation to the carrying out of the works the subject of order 1 of the 2015 orders. The 2013 orders were final orders made with a view to disposing of the proceedings. The 2014 orders were expressed to be “supplementary” to and made for the purpose of “working out” the 2013 orders. Pursuant to order 4 of the 2015 orders, orders 5(d), 7 and 8 of the 2014 orders were vacated. This evinces an intention to replace the regime for the carrying out of the kitchen exhaust works the subject of the 2014 orders, which expressly incorporated the 2013 orders’ regime for obtaining approvals to the extent that supplementary works were required, with one that did not (see order 1 of the 2015 orders). The Court expressly noted in order 5 of the 2015 orders:

… the Applicants do not and will not contend to the Respondents (including the 4th R) that the other works required to be done pursuant to orders dated 12 March 2013 and 30 October 2014 by the Respondents have not been completed in a satisfactory manner.

25. Whatever other works were required by the 2013 orders or the 2014 orders, they were acknowledged to have been completed and no longer required the regime of approvals etc made in those orders. Had it been the intention to incorporate the various approval requirements in the 2013 orders, it would have been a simple task to have made provision for the obtaining of the Council’s consent in order 1. The fact that the parties have and the Court has previously done so in relation to the earlier orders but not in the 2015 orders, suggests that no such requirement should be implied or incorporated into the 2015 orders.

26. The argument that the “Specification” referred to in order 1 of the 2015 orders incorporates the requirement to comply with condition ANS09 of the consent (which requires a separate development consent to be submitted to Council for any “proposed … ventilation/ducting, exhaust fan structures” etc) is misconceived. Firstly, order 1 requires the Anastasious to carry out “the works” in the Specification, not to comply with the Specification in all respects. The only purpose of the Specification is to identify the works to be carried out. Secondly, the terms of the Specification demonstrate that the document was prepared for a wider or different purpose. The references to “the Mechanical Contractor” or “the Contractor” and to matters such as the defects liability period demonstrate that the Specification is something akin to a tender document prepared by Mr Duggan. Thirdly, references in the Specification demonstrate that the Specification does not incorporate the consent but rather makes provision for the construction and operation of a system that is intended to comply with the consent. Section 1.1 refers to the supply and installation of a new kitchen exhaust ventilation system “to enable compliance” with the consent and section 2.2 refers to the aim of the installation of the new system as “to comply with” the consent. Fourthly, ANS09 is advisory in the sense that all that it is saying is that any such works are not authorised by the consent. The Anastasious do not rely on the consent as providing the source of authority to carry out the relevant works but rather the 2015 orders and 2019 orders.

27. The legal principles applicable to the interpretation of contracts apply to the construction of consent orders. The objective circumstances surrounding the making of consent orders can be considered: Kirkpatrick v Kotis (2004) 62 NSWLR 567; [2004] NSWSC 1265 at [39]. Post-contractual conduct is inadmissible if used to support a legal not factual conclusion: BH Australia Constructions Pty Ltd v Kapeller [2019] NSWSC 1086 at [59].

28. There is no authority for the Council’s contention that orders must be interpreted on the assumption that they were made within power. Section 32 of the Interpretation Act 1987 does not apply since orders do not constitute an instrument as defined by s 3 of the Act to include a “statutory rule or an environmental planning instrument”.

29. The Council submits that the 2015 orders should be construed to have been made within power but later submits that there is no power to make orders which are in effect in breach of the EPA Act. The 2015 orders are an historical and legal fact. Those orders authorised the carrying out of the works undertaken in early 2018. The only source of power for the making of those orders was s 124 of the EPA Act. That being the case, the requirement to obtain consent under s 76A was misapplied because of the operation of s 76C of the Act, as submitted previously.

30. Before granting the declarations sought, the Court needs to be satisfied that it is not trying a hypothetical dispute: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437-8; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582; University of New South Wales v Moorehouse (1975) 133 CLR 1 at 10; Fordham v Environment Protection Authority [2018] NSWCA 167 at [32]. If the Court is satisfied that the works are lawful, it is appropriate for the Court to make the declarations sought because:

1. that will resolve the Council’s extant notice of intention to give an order to the Anastasious;

2. the trigger for the carrying out of the remaining works by the Anastasious is the Court’s favourable determination of the issue raised by prayer 2 of the summons; and

3. it is in the interests of all parties and in the public interest for this long-running litigation to be resolved on a final basis.

Atcha’s submissions

31. Atcha adopted the Anastasious’ submissions and made four short points. Firstly, the power conferred on the Court in s 9.46(1) to “remedy or restrain” a breach of the EPA Act is not directed to restoring the status quo as the Council contends (a submission adopted by the Anastasious). Secondly, Div 4.1 is subservient to the other provisions of the EPA Act. If s 9.46 operated in the way contended for by the Council, then the Court would need to consider whether development consent was first required before making any order for demolition or removal of work. Thirdly, there is no contention the 2013 or 2015 orders were beyond power. Fourthly, Cando considered whether certain acts would be in breach of the EPA Act, Div 6.2 and 6.3, which would have been breached on an interim basis to enable overall compliance to be achieved. The issue here is whether development consent is required in the context of the EPA Act where s 9.46 is dominant and Div 4.1 is subservient.

Council’s submissions

32. The Council submits that the issues requiring determination are, firstly, whether the 2015 consent orders, properly construed, require development consent to first be obtained; secondly, is the power conferred on the Court in s 9.46 of the EPA Act sufficient to allow works to be carried out which would otherwise require development consent.

Construction of consent orders

33. The 2013 consent orders required development consent to be obtained. As the subsequent orders in 2015 are described as supplementary the need to obtain approval remains.

34. Clauses 11.1 and 11.2 of the schedule to the 2013 orders specify under the 2014 orders the need to obtain development consent for certain work. Mr Turvey was appointed under the 2014 orders. Order 6 of the 2014 orders adopts cl 11. The effect of this is that if Mr Turvey the mechanical ventilation expert made recommendations then development consent would be required. The 2015 orders did not vacate order 6 of the 2014 orders. Clause 13 of the 2013 orders still applies and therefore the Anastasious required/require development consent to carry out the works mandated by the 2015 orders and 2019 orders. Further, there is nothing in any of the orders stating that condition ANS09 of the consent as amended (requiring development consent for “[a]ll proposed towers, ventilation/ducting, exhaust fan structure … on the roof”) need not be complied with. Indeed, order 2 of the 2019 orders states that the works to be carried out to make the kitchen exhaust system must be compliant with the 2009 development consent. This construction of the orders is supported by the fact a development application was lodged by the Anastasious with the Council for a “new kitchen ventilation system” on 16 November 2016 (which was rejected). This demonstrates that the Anastasious believed that development consent was required to install the ventilation system.

35. The 2019 orders contain works which fall into two categories. Firstly, there are “initial works” being principally rectification of earlier works within the Specification. Secondly, there are “recommended works” that are as yet unknown being at the sole discretion of the new mechanical ventilation expert Mr Burns. Mr Burns is charged with recommending the most cost-effective and practical way to address the non-compliance. He is not ordered to consider merit or the input of other stakeholders in accordance with the EPA Act. The Anastasious’ submission, if it was accepted, would mean that no matter what is recommended there would be no scrutiny of the merits of the works. The statutory scheme of the EPA Act has central to it the merit assessment of applications to carry out works of this type and no assessment is undertaken if consent orders are simply to be accepted without scrutiny. Even if the works in the Specification do not require development consent, it is contrary to the EPA Act and illogical that orders were made authorising unspecified works.

Power conferred by s 9.46

36. The orders should not be construed to be a consensual act of the parties to give the Court jurisdiction where it has none: Interpretation Act s 32. If there is no power to make order 3 of the 2019 orders in the absence of development consent, then whatever the agreement between the parties the Court does not have power to make that order. The power in s 9.46 arises after proceedings are commenced pursuant to s 9.45. While the power of the Court in s 9.46 to make orders is broad, there are limitations as to the subject matter (the breach being remedied) and the object, scope and purpose of the EPA Act: Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308 (Saab). Section 9.46(2) contemplates a range of works which “remedy” (emphasis added) a breach in the sense of attempting to restore the status quo.

37. The power in s 9.46 was considered in Cando, which considered precisely the issue that arises in this case at [76]:

Contrary to this first ground of appeal, … her Honour did find that she had no power to make the orders sought by Cando under s 124 of the EPA Act (Judgment [95] and [96]). For the reasons which follow this finding was correct. Moreover, even if there were such power, it would not have been appropriate for the power to be exercised.

38. The Court of Appeal came to this finding because the orders sought would give rise to breaches of the EPA Act including the building of a development not in compliance with a development consent in breach of s 76A (now s 4.2): Cando at [96]. The Court is not authorised by s 124 to order parties to carry out work in breach of the EPA Act: Cando at [138].

39. There is a distinction between a simple remedial order (an order requiring rectification works) and the orders sought in this case (and in Cando). Order 3 of the 2019 orders is not directed to demolishing unauthorised work or carrying out rectification works or bringing a building into line with a consent. It is an order directing that work be carried out to address the use of premises, to ensure that no offensive odour is emitted. It is not related to work which has already been approved – it is entirely new. The consent orders should not be construed in such a way as to bypass the statutory mechanism for merit assessment of development.

40. Section 4.4 of the EPA Act does not operate in the way contended for by the Anastasious. The phrase “subject to” in s 4.4 cannot mean that s 4.2 is subservient to s 9.46 such that development consent is not required to carry out works ordered to be carried out by the Court pursuant to s 9.46 that require consent. “Subject to” in s 4.4 is a reference to the other provisions of the EPA Act that give effect to Div 4.1.

41. The Council does not challenge the orders that have been made. Rather, the declarations sought by the Anastasious should not be made due to the finding in Cando.

Consideration

42. At issue in this case is the extent of the Court’s power to make orders under s 9.46 (former s 124) in Pt 9 Div 9.5 “Civil enforcement proceedings” given Pt 4 Div 4.1, ss 4.2 and 4.4. The relationship is determined by statutory construction of the EPA Act in accordance with well-established principles. Principles of statutory construction require the words of a statute to be considered in their context: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [381]-[382] (McHugh, Gummow, Kirby and Hayne JJ) cited by Minister Administering the Crown Lands Act 1989 v New South Wales Aboriginal Land Council (2018) 231 LGERA 145; [2018] NSWLEC 26. Section 33 of the Interpretation Act requires a construction which promotes the purpose or object of an Act over one which would not. A general principle of statutory construction is that where words are plain and unambiguous they should be given their ordinary and grammatical meaning: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 at 305 (Gibbs CJ) cited in Roden v Bandora Holdings Pty Ltd (2015) 213 LGERA 103; [2015] NSWLEC 191 at [42].

43. I note for completeness that at the time of the consent orders in 2015 a previous version of the EPA Act was in force. The current version of the EPA Act was in force when the 2019 orders were made. The provisions in issue have not been changed in the substantial renumbering of the EPA Act effective from March 2018. The statutory terms in issue in the EPA Act are not ambiguous. The plain meaning of the statute suggests that the Anastasious’ submissions are correct. Section 4.2(1) (former s 76A(1)) specifying development which needs consent is expressly subject to the other provisions of the Act unless express provision is made to the contrary by virtue of s 4.4 (formerly s 76C). Section 9.46 (former s 124) is not qualified. Where the Court is satisfied that a breach of the Act is occurring it has wide powers to make orders to remedy or restrain that breach as it considers fit. Subsection 2 which specifies the kinds of orders that can be made states that it does not limit the powers of the Court in subs (1). The circumstances identified in subs (2)(b) and (c) whereby the Court can make an order to remedy a breach contemplate the doing of work whether demolition or removal, or reinstatement, which work may otherwise require development consent under s 4.2. No suggestion is made that the Court did not consider that a breach of the EPA Act was occurring in 2015 and 2019, founding power to grant relief under s 124.

44. As the Anastasious submitted the words “... subject to..” were considered in Medical Council, where Sackville AJA (Beazley P and Basten JA agreeing) stated at [87]:

When used to define the relationship between two statutes or provisions, “subject to” is a standard means of establishing which provisions are dominant and which are subservient. The subservient provisions therefore operate only to the extent that they are not inconsistent with or repugnant to the dominant provisions.

45. To similar effect Pearce & Geddes Statutory Interpretation in Australia (9th ed 2019, Lexis Nexis) refers to the use of “subject to” as being included for abundant caution in identifying dominant and subservient provisions, at [4.53]. There is no suggestion that these provisions are conflicting so that applying a construction that is harmonious does not arise for consideration, as can be necessary where the indication of dominant and subservient provisions is not apparent.

46. The Council relied on s 32 of the Interpretation Act to the effect that an instrument should be construed as operating to the full extent of but not exceeding the power conferred by an Act under which it is made, limitations arising from the subject matter of a breach and the objects and purpose of the EPA Act. As the Anastasious’ counsel submitted, s 32 of the Interpretation Act has no application to the exercise of the Court’s power under the EPA Act. It addresses instruments made under an Act, as stated expressly in subs (3) which refers to the section’s application to an instrument.

45. Reading the EPA Act as a whole does not support the Council’s approach. The Council submitted that the Court is empowered to make orders remedying a breach which restore the status quo. No such words of limitation appear in s 9.46 of the EPA Act. The Council also relied on the broad objectives and purpose of the EPA Act but these also do not provide a basis for limiting the effect of the clear wording in s 9.46 in this case. Reliance was placed by the Council on Saab in the Court of Appeal without reference to a particular part. That case considered whether a development consent condition was valid under s 80A of the EPA Act as then in force. While the objects of the EPA Act were considered in that context the relevance of that case to this matter is unclear.

46. The Council also sought to draw a distinction around so-called simple remedial work such as an order requiring rectification works and more substantial work requiring development consent. As submitted by Atcha, if the Council is correct the Court would have to consider whether development consent was required every time it ordered demolition and repair work. There is no statutory warrant for distinguishing between different types of work which remedy a breach.

47. Contrary to the Council’s submissions Cando did not deal with precisely the same issue as arises in these proceedings. The facts of that case were markedly different arising from a substantial unlawful structure of nine townhouses built without a private certifier being appointed or a construction certificate being issued under s 81A(2) of the EPA Act (as then in force) inter alia. Section 81A(2)(a) stated that the erection of a building in accordance with a development consent could not commence until a construction certificate for the building work had been issued. According to s 109H(5)(b), in the absence of a construction certificate, an occupation certificate could not be obtained as required by s 109M. Cando sought orders relying on s 124 in this Court and the Court of Appeal which would have required remedial work without a construction certificate or the appointment of a private certifier and would have authorised occupation of premises without an occupation certificate as a means of ultimately regularising what had been and would be built. This Court declined to make the orders. The Court of Appeal declined to make such orders on the basis that these would direct Cando to carry out work in breach of s 81A(1) and (2) of the EPA Act, see White AJA (Beazley P and Meagher JA agreeing) at [129], [138]. The orders sought in Cando would also have negated the need to obtain an occupation certificate. It is not at all surprising in those circumstances that the Court of Appeal declined to make the orders sought for the reasons stated.

48. These reasons have no application in this case. As the Anastasious submitted, s 81A had no equivalent to s 76C (now s 4.4), meaning it was not expressed to be subject to other parts of the EPA Act inter alia. Further, as the Anastasious submitted, s 81A(2) requires a construction certificate to be obtained for the erection of a building in accordance with a development consent. If there is no legal requirement to obtain development consent then the requirement does not arise. The Court’s orders in 2015 and 2019 did not have such a requirement. As Atcha submitted Cando was considering whether the carrying out of certain work would result in a breach of the EPA Act. The issue here is different, being whether development consent was required for certain work.

49. The Court over its nearly 40 year history has made orders requiring work to be done to remedy the breach of environmental and planning legislation on occasions too numerous to count without exhaustive research. The Court is not precluded from making orders in civil enforcement proceedings which contemplate the making of a development application to a consent authority and that has occurred on a number of occasions, for example King v Potts [2015] NSWLEC 22. It is not however bound to do so when ordering works to be done which remedy a breach of the EPA Act. One of many examples referred to in submissions where the Court ordered substantial work be done was Rossi v Living Choice Australia Ltd (No 4) [2013] NSWLEC 136. The Court of Appeal also made orders requiring substantial work, Rossi CA. It will inevitably be a question of the Court in exercising its jurisdiction weighing up the relief sought and determining what is appropriate in the circumstances. This was identified in Cando in the context of whether an order should be made restraining a breach of the EPA Act in the exercise of the Court’s discretion, citing Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, being the discretion to withhold relief at [123]-[124]. F Hannan Pty Ltd v Electricity Commission of NSW (No 3) was cited at [125] once again in the context of the Court’s power to withhold relief. The power of the Court under s 124(1) includes ordering a party in breach to carry out rectification works, at [128].

50. I consider the 2015 consent orders and the 2019 consent orders were a valid exercise of the Court’s powers to make orders under the EPA Act on the basis a breach of the EPA Act was established and that development consent was not required for the work required by these orders.

Construction of the consent orders

53. While the statutory construction issue of whether court orders requiring work to be done that might otherwise require development consent under Div 4.1 has been dealt with above, the Council also submitted that the consent orders in issue particularly in relation to the 2015 consent orders when properly construed did require development consent to be obtained in any event. Extracts of the key development consent conditions issued by the Council in 2009 and subsequently amended in relation to the prohibition on offensive noise, acoustic compliance, mechanical ventilation, control of air emissions with all proposed towers, ventilation/ducting, exhaust for structures and any other structures, chillers and condensers on the roof above a height of 500 millimetres requiring a separate development application are set out above in [11]-[12]. The 2013 orders extracted above at [13] provided for work to be done to the ventilation system as required by an acoustic engineer, air quality and odour measurement engineer and a BCA expert inter alia. That work included the installation of ventilation equipment on the roof of the premises. Clause 11.1 required that consent for the recommended work be obtained from Manly Council. The 2014 consent orders are stated to be supplementary to the 2013 orders made for the purpose of working out the 2013 orders, including employing another expert on mechanical ventilation to which the previous orders concerning work to be undertaken by experts applied, with specific work also considered. Due to that expert no longer being available, the 2015 consent orders referred in order 1 to the carrying out of work in accordance with another expert’s specification, Mr Duggan. As a result of giving effect to the court orders the equipment recommended to be installed on the roof was higher than 500 millimetres.

54. No express requirement to obtain development consent is identified in the 2015 consent orders unlike the 2013 orders. The Council submits that such a requirement should be inferred due to its construction of the orders as summarised above in its submissions at [34]. In addition to construing the terms of the consent orders on their face, the Anastasious’ counsel referred to Kirkpatrick v Kotis where Campbell J identified the approach of construing consent orders by reference to surrounding circumstances at [38]-[44] to conclude that authority and principle favours the construction of consent orders in light of surrounding circumstances. Those circumstances are the same as construing a contract as identified in Codelfa Constructions v State Rail Authority of NSW (1982) 149 CLR 337; [1982] HCA 24 at 352.

55. I agree with the Anastasious’ submissions in relation to the construction of the 2015 orders as set out above in [24]-[26] informed by the surrounding circumstances. Order 1 is unambiguous and self-contained. Orders 5(d), 7 and 8 of the 2014 orders were vacated. The 2015 consent orders are standalone in the sense they do not require reliance on the 2013 or 2014 orders for execution. Order 5 makes this clear. As the Anastasious submitted, the 2015 orders acknowledge that other work the subject of the 2013 and 2014 orders had been completed. Order 1 requires the work to be done within 60 days which could not encompass obtaining development consent from the Council by inference, a relevant surrounding circumstance. Read as a whole, the 2015 orders are not intended to carry forward parts of the 2013 and 2014 orders in any operative way so as to require development consent to be obtained for installation of equipment on the roof. The issue of whether development consent was required was referred to separately in pars 5 and 20. It follows that I do not accept the Council’s submission that the 2013 orders and 2014 orders which required development consent to be obtained for the installation of ventilation equipment on the roof applied in the 2015 consent orders.

56. That development consent was sought in 2016 and refused due to the absence of owner’s consent according to pars 23-26 of the SOAF is not an aid in the construction of the 2015 consent orders. I note that the Third Respondent, owners of the strata plan, have provided the necessary easement for the work on the roof under cl 15A of the 2019 consent orders.

57. The 2019 consent orders are of a similar nature to the 2015 consent orders which I have found should not be construed as requiring development consent to be obtained. Initial works are specified to be carried out on the roof inter alia. There is provision for recommended works in the event that the initial works are not carried out satisfactorily in meeting the requirements of the 2009 consent concerning noise, acoustic compliance, mechanical ventilation and air emissions inter alia. The orders specify a self-contained scheme which can be given effect. The orders are reasonably lengthy and are not set out in their entirety in the judgment as it was not necessary to do so to address the parties’ arguments. I do not accept the Council’s construction as set out in [35] above that the 2019 consent orders are illogical as they contain unspecified works. The orders provide an orderly mechanism for achieving the intended outcomes which remedy the breach of the EPA Act they are addressing.

58. In making these findings on the construction of the orders, I am not seeking to ignore the Council’s complaint about the lack of a process of merits assessment of the required work particularly installation of equipment above 500 millimetres on the roof. As noted above in [51] the Court is not precluded from making orders which require development consent to be obtained. It is important that the Court when making orders requiring work weigh up the benefits of such a process. On this occasion the approach taken by me, as the Court in 2015, was to make the orders sought by the parties which did not require obtaining development consent. I emphasise that parties seeking complex orders by consent must ensure they disclose to the Court all material matters, which on this occasion would include identifying the change of regime for compliance from obtaining development consent for some of the work to not having such a requirement in later court orders.

59. Turning to whether relief should be granted, as the Anastasious’ counsel noted, it is strictly unnecessary for the 2015 orders to be the subject of a declaration in the sense that they have been made, complied with and are to be considered valid until set aside citing Community Association DP270447 v ATB Morton Pty Ltd Leeming JA at [56] referring in turn to State of New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 at [38]-[39], Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 at [17] inter alia. Work required by the 2019 consent orders has yet to be carried out.

60. The Council submitted that declarations should not be made because if its arguments were accepted, the possibility of an application to have both sets of orders set aside in the Court of Appeal would remain. I have not accepted the Council’s arguments. On balance it is necessary to make the declarations sought in order to finalise the matters in dispute between all the parties to this appeal and for the other reasons identified by the Anastasious in their submissions set out in [30] above, namely the matter is longstanding, there is potential for council enforcement action in relation to the work carried out and the balance of work required by the 2019 orders should be able to be carried out forthwith. Accordingly I will make the two declarations sought.

61. I have not heard argument about the matter of costs and consider the parties should have the opportunity of making submissions on that matter. A timetable for doing so will be discussed. I will reserve costs in the meantime in the orders below.

Declarations and orders

62. The Court declares that:

1. Works carried out by the Applicants in early 2018 to install a ventilation unit on the roof of the building located at 43-45 North Steyne Manly New South Wales pursuant to orders made by this Court on 16 October 2015 in proceedings no 41040 of 2011 did not require the grant of development consent by the Fifth Respondent in order for those works to be lawfully carried out.

2. The further works relating to the installation of a ventilation unit on the roof of the building located at 43-45 North Steyne Manly New South Wales required to be carried out by the Applicants pursuant to orders made by this Court on 9 May 2019 in proceedings no 291412 of 2017 may lawfully be carried out without first obtaining the grant of development consent by the Fifth Respondent.

3. Costs are reserved.

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Decision last updated: 05 March 2020