Campbelltown City Council v D'Arcy

[2004] NSWLEC 439

Land and Environment Court

of New South Wales

CITATION:	Campbelltown City Council v D'Arcy [2004] NSWLEC 439
PARTIES:	APPLICANT Campbelltown City Council RESPONDENTS Vy Ly D'Arcy and Talent Ly D'Arcy
FILE NUMBER(S):	40307 of 2004
CORAM:	Pain J
KEY ISSUES:	Development Consent :- Installation of security grills and roller doors on heritage building without consent - Whether consent required - Whether current owner in breach of EP&A Act because of works installed by previous owner not a party to the proceedings - Discretion to refuse relief - Whether disentitling conduct by Council - Whether works required for adequate security
LEGISLATION CITED:	Campbelltown Local Environmental Plan No 209 - Exempt Development Campbelltown Local Environmental Plan No. 47 Campbelltown (Urban Area) Local Environmental Plan 2002 Environmental Planning and Assessment Act 1979, s 25, s 76A, s 124, s 149A, s 149E
CASES CITED:	Murdoch v Holroyd City Council (unreported, NSWCA, 20 November 1996); Wilkie v Blacktown City Council and Ors (2002) 121 LGERA 444
DATES OF HEARING:	06/08/2004
DATE OF JUDGMENT:	08/27/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr I. Hemmings with Ms M. Carpenter SOLICITOR Marsdens RESPONDENT Mr R. Bournes (as agent)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PAIN J

27 AUGUST 2004

40307 of 2004 CAMPBELLTOWN CITY COUNCIL v
V.L. D’ARCY and
T.L. D’ARCY

JUDGMENT

1 HER HONOUR: Campbelltown City Council (“the Council”) seeks a declaration that Vy D’Arcy and Talent D’Arcy (“the Respondents”) have carried out works on a building known as “Emily Cottage” without consent and orders that those works be removed and Emily Cottage reinstated as it was before those works were carried out. The Council indicated that it would not oppose any such orders being stayed pending the lodgement by the Respondents of a development application for alternative works and the determination of the same by the Council. The Respondents are represented by their agent, Mr Bournes, while the Council was represented by its barristers, Mr Hemmings and Ms Carpenter.

2 The parties agreed that, at some point prior to February 2002, the following works were carried out (“the works”):

(a) metal lace security grills were erected over the two front windows on the south eastern wall of Emily Cottage;
(b) metal roller doors were erected on the north eastern and south western junctions between Emily Cottage and the weatherboard structure to the north west of Emily Cottage; and
(c) a metal roller door was erected over the front door on the south eastern wall of Emily Cottage.
The parties agreed that no development consent was ever obtained in relation to these works.

3 The Respondents purchased Emily Cottage on 31 January 1995. The Respondents admitted that the roller doors (b) and (c) were installed by them at some time between October 2000 and July 2001. The Respondents stated that the security grills over the windows of Emily Cottage were in place when they brought the property and it is unclear when these were first installed. An affidavit of Mr Donachie, a legal officer employed by the Council, attaches a number of dated photographs of Emily Cottage. These photographs indicate that the security grills were installed some time between November 1985 and 2000. Thus the evidence is that the window security grills were installed prior to the Respondents’ purchase of Emily Cottage.

4 The following two questions need to be determined in these proceedings:

(a) Did the works require development consent?
(b) If so, does the court have jurisdiction to make declarations or orders concerning those works which were carried out by a person not a party to these proceedings?

5 Section 76A of the Environmental Planning and Assessment Act 1979 (“the EP&A Act) provides that:

If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:
(a) such a consent has been obtained and is in force
…
The following environmental planning instruments are relevant to these proceedings.

Campbelltown Local Environmental Plan No. 47

6 Emily Cottage is listed as a heritage item under Campbelltown Local Environmental Plan No. 47 (“LEP 47”), which applied between 2 November 1984 and 22 February 2002. It is clear that LEP 47 applied at all times during the period the works were carried out.

7 Clause 14 of LEP 47 provides as follows:

(1) a person shall not, in respect of a building, work or relic that is an item of environmental heritage:
(a) demolish or renovate any such building or work;
…
except with the consent of the council.

8 Clause 6 of LEP 47 defines “renovation” as meaning:

(a) the making of structural changes to the inside or outside of the building or work; or
(b) the making of non-structural changes to the fabric or appearance of the outside of the building or work, including changes that involve the repair or the painting, plastering or other decoration of the outside of the building or work.

9 LEP 47 was repealed by the Campbelltown (Urban Area) Local Environmental Plan 2002 (“LEP 2002”) which was gazetted on 22 February 2002. Emily Cottage is also listed as a heritage item under LEP 2002. Clause 44(1) of LEP 2002 provides that:

(1) The following development may be carried out only with development consent:
…

Clause 44(2) of LEP 2002 contains exceptions to the requirement to obtain consent imposed by cl 44(1). The parties agreed that these exceptions are not relevant to these proceedings.

10 The Council argued that the works carried out on Emily Cottage are:

(a) within the definition of “renovation” under LEP 47 so that the carrying out of these works without the Council’s consent was prohibited under cl 14 of LEP 47, which applied at the time the works were carried out; and
(b) prohibited without consent under cl 44 of LEP 2002 so that the breach of LEP 47 is ongoing under LEP 2002.

11 The Respondents’ agent submitted that:

(a) the claims brought by the Council in these proceedings were identical to those brought by the Council against the Defendants in proceedings No. 10897 of 2002, and accordingly, that the doctrine of res judicata operated to prevent the Council from raising the same issues in these proceedings;
(b) that Campbelltown Local Environmental Plan No 209 – Exempt Development (“LEP 209”) and Development Control Plan No. 83 – Heritage Policy (“the DCP”) apply to the works, with the result that no consent was needed to carry out the works; and/or
(c) that as LEP 47 has been repealed by LEP 2002, no offence under LEP 47 can now be alleged.

12 On the day of the hearing I ruled that the Respondents’ agent had failed to substantiate his application that these proceedings were barred by the doctrine of res judicata. Accordingly, I do not need to consider this argument here.

13 At the hearing the Council relied on the affidavit evidence of:

(a) Mr Shaun Beckley, a senior planning officer employed by the Council;
(b) Mr Jon Bridge, a planner employed by the Council;
(c) Mr Michael Donachie, the Council’s legal officer;
(d) Ms Verlie Fowler, a Councillor;
(e) Ms Peta Hudson, the Council’s solicitor; and
(f) Ms Judith Rintoul, a heritage consultant.
The Respondents relied on the affidavit evidence of Mr Mathew D’Arcy, who manages the Respondent’s affairs in relation to Emily Cottage, and the affidavit evidence of Mr Bournes, the Respondents’ agent.

Finding

14 I accept the Council’s submission that the works come within the definition of “renovation” contained in cl 6 of the LEP 47 so that they were prohibited without development consent under LEP 47. It is also clear that the works are prohibited without consent under LEP 2002. Clearly the offence is a continuing one so that, despite the repeal of LEP 47 by LEP 2002, there is nevertheless a breach of the requirement to obtain development consent in relation to the works done when LEP 47 was in force and this breach continues under the current LEP 2002 also. This leaves the question of whether LEP 209 and the DCP apply so as to negate any need to obtain development consent for the works.

15 LEP 209 was gazetted on 2 June 2000. Clause 5 of LEP 209 provides that:

this plan prevails to the extent of any inconsistency with any other local environmental plan … that applies to the land on which this plan applies.”

16 Clause 8(1) of LEP 209 provides that:

Development listed in Schedule 1 is exempt development, except as provided by subclauses (2)-(4).

The development listed in Sch 1 of LEP 209 includes:
minor external works to buildings and structures … which involve … attaching fittings” and the installation of “security and storm blinds on dwellings.

The Respondents’ agent submitted that the works fall into these categories.

17 The Council disputed that the works are exempt works. Even if they are, the works are in any event caught by cl 8(3) of LEP 209 which provides that:

Development is not exempt development if it is carried out on land that:
…
(b) is or is part of the curtilage of a heritage item

18 The Respondents argued that this clause does not apply to the works, as the works were not carried out on the curtilage of Emily Cottage, but were attached to Emily Cottage itself. In my opinion to apply such a construction leads to the manifestly absurd result that exempt development could be carried out on a heritage item itself but not on the land immediately surrounding the heritage item. I note that curtilage is not defined by LEP 209. The Macquarie Dictionary (revised 3rd edition) defines “curtilage” as “the area of land occupied by a dwelling and its yard and outbuildings, actually enclosed or considered as enclosed.” I consider that this is an appropriate definition to adopt for the purposes of interpreting LEP 209. The works carried out were physically attached to Emily Cottage, in the case of the security grills and the roller door installed over the front door, or were carried out in the courtyard outside Emily Cottage, in the case of the remaining roller doors. It is therefore clear that they were carried out within the curtilage of Emily Cottage. Accordingly, LEP 209 does not apply to the works.

19 The DCP was adopted by the Council on 25 February 1997. The Respondents’ agent submitted that the DCP, which states that:

General maintenance and repairs to a heritage item do not require development consent. Examples include:

· Ancillary development, including a garden/tool shed or clothes line

…
Some minor works may require building approval.

has the effect that consent is not required for the works.

20 This submission is clearly misconceived as development control plans are subordinate to Local Environmental Plans and such a general statement in a development control plan cannot be regarded as overcoming a requirement for development consent imposed in a Local Environmental Plan.

21 I find that the need to obtain development consent LEP 47 and LEP 2002 was not negated by the provisions contained in either LEP 209 or the DCP. Accordingly, I find that the works were carried out without consent in breach of s 76A of the EP&A Act.

22 As the Council is successful in relation to the illegality of the works it is appropriate that I make the declaration sought by the Council in relation to the works in (b) and (c). The window grills (a) I need to consider separately.

(b) The Court’s Power to Make Declarations and Orders Regarding the Window Grills

23 I have found that the security grills were installed on the front windows on Emily Cottage without consent contrary to s 76A of the EP&A Act. However, the evidence is that these works were already installed, by some unknown person, at the time the Respondents purchased the property. The question arises therefore as to whether, in these circumstances, I have jurisdiction to make orders or declarations concerning the window grills when they concern actions by someone not a party to these proceedings.

24 As set out above, s 76A of the EP&A Act provides that “a person must not” carry out development without a consent where such consent is required by an environmental planning instrument. Section 124(1) of the EP&A Act provides that

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.

The Submissions

25 On the day of the hearing I requested the parties to provide me with further submissions addressing the fact that the Respondents did not install the window grills on Emily Cottage which they have done.

26 The Council relied on the decisions of the Court of Appeal in Wilkie v Blacktown City Council and Ors (2002) 121 LGERA 444 and Murdoch v Holroyd City Council (unreported, NSWCA, 20 November 1996) to argue that the fact that these works were not carried out by the Respondents did not prevent the Court from finding that the EP&A Act had been breached and ordering the Respondents to remove these works as:

(a) the breach is continuing;
(b) the Respondents have the benefit of these works; and
(c) as owners of the property, the Respondents are the only persons who could be ordered to remedy the breach.

27 The Respondents’ agent argued that any breach relating to these works was not committed by the Respondents and, hence, that the Court could not order the Respondents to remove these works. However, neither party could refer the Court to a case which directly concerns the issue of the Court’s power to make orders against the current owner of the land in relation to breaches which, although ongoing, were initiated by a third party at some time before the current owner purchased the land.

28 In Wilkie, s 76A of the EP&A Act was breached by a sublessee of land who used the land as a waste facility without first obtaining development consent. The trial judge at first instance found that while Mrs Wilkie, the lessee of the land, did not herself breach s 76A of the EP&A Act, she nevertheless “permitted or suffered” a breach by the sublessees. The trial judge issued an injunction restraining Mrs Wilkie from continuing to permit or suffer the unlawful use and made an order, contingent on the failure of the other respondents to do so within a given time frame, requiring her to rectify the breach by removing the waste material deposited on the land. On appeal Davies AJA, with whom the remainder of the Court of Appeal were in agreement, held at par 36 that s 124 of the EP&A Act does “…not suggest to me that orders may be made against persons who have not breached or are not in breach of the EP&A Act.” Davies AJA held at par 59 that:

Ms Wilkie was not the owner of the premises and she was not involved in the dumping of material on the land. She had granted a sub-lease which authorised the use of the land for a lawful purpose. Ms Wilkie did not occupy and she was not in control of the land which [the sublessees] used.

His Honour was of the view, at par 60, that the finding that Mrs Wilkie had “permitted or suffered”:
…may well have relevance to the exercise of discretion once a breach by the person was established. But they do not authorise the making of an order of rectification against Ms Wilkie who did not breach the EPA Act and did not benefit from the breach.

29 Davies AJA made it clear at par 37 that for the purposes of Wilkie it was not necessary for the Court

… to consider the circumstances in which a rectification order may be made against an owner or owner/occupier of premises to which unauthorised alterations or improvements have been made.

30 This is a significant question about which I would require further argument in order to feel adequately informed for the purposes of making a final determination on this issue.

31 My preliminary view is that, while the Council submitted that the Respondents have had the benefit of the window grills since they purchased the property and that this is sufficient to ground an order in circumstances where they were not in breach of the EP&A Act, Wilkie provides authority for the proposition that s 124 of the EP&A Act only allows the Court to make orders against persons who have breached or are in breach of the EP&A Act. While I accept that the Respondents have had the use of the window grills since purchasing Emily Cottage I do not necessarily see this, without more, as sufficient to establish a breach of the EP&A Act by the Respondents. I note that the avenue of serving a Notice under s 121B of the EP&A Act could have been pursued by the Council in relation to the window grills and that this issue would not arise if that avenue had been pursued. I have formed the view that, on discretionary grounds, I should not require the removal of the window grills in any event. It is therefore unnecessary that I finally determine this issue. Given that the grills were already fixed to the premises at the time of purchase of the property by the Respondents, and are clearly necessary for the protection of the front windows from acts of vandalism and are undetectable when the shutters are open, I will exercise my discretion and refuse relief in relation to the grills so that they can remain.

32 Should I grant the relief sought by the Council as a consequence of the declaration I have made in relation to the works other than the window grills? The Council argued that the heritage values of Emily Cottage are such that I should make an order that the illegal works, which are not compatible with the heritage values of Emily Cottage, be removed. The Respondents opposed any such orders on the grounds that:

(a) the works are necessary for the security of Emily Cottage, given the history of break-ins and vandalism as testified to in the affidavit of Mr Mathew D’Arcy, a relative of the Respondent’s who resides at Emily Cottage;
(b) the Council has engaged in disentitling conduct in that it has carried out or permitted similar works to be carried out without consent on other heritage buildings in the area.

33 I have a wide discretion under s 124 of the EP&A Act as to whether I should order relief. The Council relied on the affidavit of Ms Rintoul, a heritage consultant, to support its argument that the heritage values of Emily Cottage are significant. Ms Rintoul is of the opinion that Emily Cottage is of local significance and is socially and aesthetically significant. She is of the opinion that the works are more than “minor non-structural changes” (at par 37) which directly affect the “heritage significance by making a major change to the appearance of Emily Cottage on its northern, southern and western elevation” (at par 32). She describes the works at par 33 as “unsympathetic in fabric, finish, detail and appearance to the exterior of the cottage.”

34 In relation to the submission made by the Respondents’ agent that the Council had engaged in disentitling conduct the Respondent’s agent sought to introduce into evidence photographs and documents which, it was argued, demonstrated that the Council has a practice of permitting works such as those to which the current proceedings relate, to be carried out without development consent. I ruled that this evidence was not admissible. Accordingly, the Council should not be denied relief on this ground.

35 In relation to the submission made by the Respondents’ agent that I should exercise my discretion to decline relief on the basis that the works were required to ensure adequate security, I note that the evidence adduced by the Respondents showed that there is a substantial need for adequate security at Emily Cottage. The evidence contained in the affidavit of Mr Mathew D’Arcy is that Emily Cottage has been broken into at least once a year since it was purchased by the Respondents in January 1995 and has been the subject of acts of trespass and vandalism on an almost weekly basis during that time. The Council did not dispute that there was a need for adequate security on the premises and indicated that it would agree to stay any order for removal of the works pending the determination of a development application, to be lodged by the Respondents, for consent to install security appropriate to the heritage values of Emily Cottage.

36 Given that the works are presently illegal I would normally order their removal and may still do so. However the Respondents appear to have a major security problem at the property with vandalism and break-ins. The Council indicated in oral submissions that it would regard the following as appropriate security measures:

(i) a solid wood door at the main entrance rather than a roller door; and
(ii) weatherboard walls installed in place of the steel roller doors currently in place.
The Council’s submissions as to appropriate measures were, not surprisingly, based on the advice of its heritage consultant. The Court did not have the benefit of any advice as to the adequacy of these as security measures on this particular property.

37 I direct that there be further discussions between the parties as to the appropriateness of the Council’s proposed security measures identified in par 36 to see if agreement can be reached as to their efficacy. The matter should be listed for further mention so that the parties can report back to the Court before I make final orders.

38 I make the following declaration:

That the Respondents, by themselves, their servants and/or their agents, have carried out or caused to be carried out the following on land known as Lot 31 in Deposited Plan 997095, Old Menangle Road, Campbelltown, in the State of New South Wales (“the land”), in respect of the building on the land known as “Emily Cottage” (“the building”) contrary to the provisions of the Environmental Planning and Assessment Act 1979:
(a) the erection of metal roller doors on the north eastern and south western junctions between the buildings and weatherboard structure to the north west of the building; and
(b) the erection of a metal roller door over the front door on the south eastern wall of the building.