Anthony Victor Sahade v Mosman Municipal Council

[2000] NSWCA 251

NEW SOUTH WALES COURT OF APPEAL

CITATION:     Anthony Victor Sahade v Mosman Municipal Council [2000]  NSWCA 251

FILE NUMBER(S):
40211/99

HEARING DATE(S):           1 September 2000

JUDGMENT DATE:            01/09/2000

PARTIES:
Anthony Victor Sahade (Appellant)
Mosman Municipal Council (Respondent)

JUDGMENT OF:      Handley JA Stein JA Heydon JA   

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S):        LEC 40171/98

LOWER COURT JUDICIAL OFFICER:     Talbot J

COUNSEL:
M V Sahade (Appellant)
T F Robertson (Respondent)

SOLICITORS:
G H Healey & Co with Graeme R Jensen & Co (Appellant)
Hill Thompson & Sullivan (Respondent)

CATCHWORDS:
LAND AND ENVIRONMENT - appeal against injunction - breach of development consent - breach of building approval - adverse inference when no evidence called  by respondent - whether injunction incapable of performance or uncertain - ND

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
ss 76A(1), 122 - 124, 125 - 127
Local Government Act 1993, s 697

DECISION:
Appeal dismissed with costs

JUDGMENT:

IN THE SUPREME COURT  
OF NEW SOUTH WALES
COURT OF APPEAL

CA    40211/99

LEC        40171/98

HANDLEY JA
  STEIN JA
  HEYDON JA

Friday, 1 September 2000

SAHADE v MOSMAN MUNICIPAL COUNCIL

JUDGMENT

1. STEIN JA:                The appellant’s approach to the proceedings before the Land and Environment Court and this Court is misconceived. The conduct of the appellant, and his counsel, before the Land and Environment Court failed to appreciate the essential nature of the proceedings.

2. First, they were civil enforcement proceedings under ss 122 - 124 of the Environmental Planning and Assessment Act 1979 (the Act) and not a criminal prosecution under ss 125 - 127 of the Act. Second, they sought an injunction restraining breach of conditions of a development consent granted by the Council, and also of a subsequent building approval, see s 122(b)(iii) and also s 122(a)(i) and (ii). They were not proceedings alleging that the appellant was carrying on development without consent, s 76A(1).

3. These fundamental distinctions do not seem to have been grasped by the appellant and his legal representatives.

4. Moreover, the concern of the appellant with the orders made against him in the Land and Environment Court does not appear to attack his Honour’s finding of breaches of the consent and approval but rather to argue that the evidence was not sufficient to implicate the appellant in the breaches.  Again, this is to misunderstand the nature of the proceedings.  It matters not whether the appellant himself committed the breaches or  failed to prevent breaches occurring.  Of course, such matters may be relevant to the Court’s discretion and to the nature of the orders which may be made to remedy the breach.

5. The Court’s power to grant a remedy in civil enforcement proceedings is dependent on proof that the breach has been committed or, unless restrained, will be committed.  It is not dependent on proof that the respondent to the proceedings committed the breach.  Nonetheless, in determining whether to make an order to remedy or restrain a breach, and the ambit of any order, the Court will need to be satisfied that the person to be bound by the order is in a position to remedy or restrain the breach.

6. In this case the appellant was the applicant for and recipient of the development consent and building approval. He is the owner of the subject land and premises.  No development can be carried on without the consent or agreement of the owner and no development or works may be carried out on land contrary to the conditions of consent.

7. There was ample evidence (and available inferences) before the Land and Environment Court on which it could be satisfied that the appellant, his servants or agents, was operating, or permitting or suffering the use of the subject premises in breach of conditions of the development consent and the building approval.

8. The declarations made by his Honour may have been unnecessary.  However, in the  circumstances of this case they may have had some utility.  They are nonetheless superfluous to the principal injunction, which the evidence before the Court justified.  The injunction is concerned to restrain future breaches and to remedy past failures to comply with conditions of the approvals.

9. The appellant complains that his Honour allowed the Council to amend the relief sought, after it had closed its case, by adding the words ‘or permitting or suffering’.  Moreover, after granting the amendment, Talbot J refused the appellant an adjournment.

10. Regard must be had to the conduct of the proceedings.  Normally the rules of the Land and Environment Court require that evidence in a Class 4 civil enforcement proceeding be by way of affidavit, filed before the hearing.  An opposing party is to indicate objections in advance of the hearing and to nominate deponents required to attend for cross-examination.

11. The Council essentially complied with the rules. The appellant chose to do nothing.  He filed no evidence, provided no objections to evidence in advance and gave no notice regarding witnesses required for cross-examination.  This was a forensic decision taken by the appellant, one assumes on advice.  The tactic was to defeat the Council’s application on the basis that ownership alone by the appellant would be insufficient to attract an order.

12. At the hearing the counsel for the appellant, Mr M Sahade, sought and was granted leave to cross-examine a Council officer, Mr Clabburn.  It also appears that his Honour was prepared to allow the appellant to give oral evidence subject to a statement of his intended evidence being provided to the applicant Council.

13. The amendment granted by his Honour did not alter the position in relation to the ability of the appellant to contest the alleged breaches.  Further, it did not affect the ability of the appellant to call evidence, including that of the appellant himself, on the issue he may have wished to raise of any third party involvement in the premises.  It is apparent that the appellant was present during the trial but a tactical decision was taken not to seek to call him to the witness box. 

14. In my view, his Honour was entitled to grant the amendment sought by the applicant council.  It did not render an injustice on the appellant nor is it apparent that the amendment caused any real prejudice to him. It follows that his Honour was correct to refuse the adjournment application.  The decision was a discretionary one and it has not been demonstrated that there was any error in principle or that the discretion miscarried.

1. There is also complaint about his Honour’s use of Jones v Dunkel (1958 - 1959) 101 CLR 298. As I have adverted, the appellant chose to conduct his defence without resort to the calling of any evidence. One would assume that the appellant, as owner and recipient of the consent, would be in a position to have relevant knowledge of the premises. His Honour had to decide the case on the evidence before him and on the available inferences which could be drawn from the evidence. Inferences may be more readily drawn in the absence of rebuttal. His Honour was entitled to assume that the appellant’s evidence would not have assisted his case. This could only have strengthened the drawing of available inferences based on the material in the Council’s case. There was no breach of Jones v Dunkel by his Honour. Talbot J was also entitled to have regard to s 697 of the Local Government Act 1993, dot points 9 and 10.

2. It is suggested on behalf of the appellant that his Honour effectively reversed the onus of proof directing it away from the applicant Council to the respondent.  In my opinion, he did no such thing.  The appellant was hoisted on his own petard, having conducted the litigation in the fashion he chose.

3. The last submission raised by the appellant concerns the second injunction made by his Honour.  This is as follows:

   4.That the respondent [Anthony Victor Sahade] forthwith take and continue to take all reasonable steps to satisfy the requirements of condition 2(i) of development consent No. 392/96 and condition 51 of building approval No. 269/97.

4. It is submitted that this order should be set aside as being impossible to perform or as void for uncertainty.

5. The order concerned a common boundary wall, which clearly had some heritage significance.  It is not unusual for a condition of a planning consent to require some action by a third party in order to implement it.  Respondent’s counsel point to the example of the provision of an easement for access over land.  A condition requiring the provision of an easement by a developer cannot compel the grant.  In the absence of such a grant, a developer may not be able to proceed or may need to seek an amendment or a modification of the condition.  Many other examples could be given.  Conditions frequently concern work on boundaries of land which can only be implemented with the co-operation of an adjacent landowner.  If the third party refuses to co-operate, then this may provide a defence to an allegation of failure to comply with the condition.

6. In the subject case it is apparent that the condition in question cannot be implemented without the co-operation of the neighbour.  It is unclear whether the adjoining owner is the Council or someone else.  However, there is no suggestion in the evidence that the co-operation will not be forthcoming or has been refused.  Indeed, as far as the Council is concerned, there seems to be evidence to the contrary.

7. It is apparent that Talbot J recognised the difficulty in ordering unilateral compliance with the condition.  That is why he framed the order in the fashion that he did.  He required the appellant ‘to take all reasonable steps to satisfy the requirements’ of the conditions.

8. In essence, the order required the appellant to negotiate with the Council in good faith and/or the neighbour, in order to be able to add to the wall’s height to 1800mm in accordance with the conditions.  In my opinion, the order made by his Honour is not so uncertain as to be incapable of enforcement.  Performance of the order by the appellant is not an impossibility.  Nor is the order ambiguous or uncertain so as to be liable to be struck down.

9. In my opinion, the appeal should be dismissed with costs.

10. HANDLEY JA:        I agree.

11. HEYDON JA:          I agree with Stein JA and I would add only the following in view of certain things said during argument.  I would not wish to give any encouragement to the proposition that the appellant will inevitably have good prospects of success in any contempt proceedings brought in relation to any alleged breach of order 4.  It would be extremely risky for the appellant to arrange his affairs on the basis that that proposition is sound.

12. HANDLEY JA:        The order of the Court will be as announced by Stein JA.

oOo

LAST UPDATED: 11/09/2000