Cmunt v Snowy Monaro Regional Council

[2018] NSWCA 237

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Cmunt v Snowy Monaro Regional Council [2018] NSWCA 237
Hearing dates:	13 September 2018
Decision date:	22 October 2018
Before:	Basten JA at [1]; Leeming JA at [2]; Emmett AJA at [3]
Decision:	Appeal dismissed with costs.
Catchwords:	LAND & ENVIRONMENT – where respondent issued appellants with notice preventing appellants from keeping more than two dogs on property – where respondent issued appellants with orders requiring removal of certain structures and advertisements – where respondent brought proceedings against appellants for failure to comply with notice and orders – where primary judge ordered compliance within 60 days – where appellants appealed primary judge’s decision – whether respondent had jurisdiction to issue notice and orders – whether respondent had standing to bring enforcement proceedings – whether evidence before primary judge supported the respondent’s claims – whether primary judge failed to consider appellants’ evidence
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), ss 121B, 121H, 123 Local Government Act 1993 (NSW) Local Government (Council Amalgamations) Proclamation 2016 (NSW), cll 17, 18, 30, 31 Protection of the Environment Operations Act 1997 (NSW), ss 6(2), 96, 252
Cases Cited:	Browne v Dunn (1893) 6 R 67 Cmunt v Vescio; Broder [2018] NSWCA 21 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46 Snowy Monaro Regional Council v Cmunt (No 2) [2018] NSWLEC 136
Category:	Principal judgment
Parties:	Marie Cmunt (First Appellant) Jiri Cmunt (Second Appellant) Snowy Monaro Regional Council (Respondent)
Representation:	Counsel: Marie Cmunt (First and Second Appellants) (in person) R O’Gorman-Hughes (Respondent) N M Eastman with J M McKelvey (Amicus Curiae)   Solicitors: Bradley Allen Love Lawyers (Respondent)
File Number(s):	2017/292745
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Land and Environment Court of New South Wales Jurisdiction: Class 4 Citation: [2017] NSWLEC 95 Date of Decision: 3 August 2017 Before: Preston CJ of LEC File Number(s): 2016/284609

Headnote

[This headnote is not to be read as part of the judgment.]

Snowy River Shire Council, a predecessor of the respondent, Snowy Monaro Regional Council (the Council), issued the appellants, Mr Jiri Cmunt and Mrs Marie Cmunt, with a notice and two orders (the Notices) in respect of Mr and Mrs Cmunt’s property at Kiparra Drive, Berridale, New South Wales (the Premises). On 7 August 2015, following a number of complaints concerning barking dogs at the Premises, the Snowy River Shire Council (the Previous Council) issued Mr and Mrs Cmunt with a Prevention Notice under s 96 of the Protection of the Environment Operations Act 1997 (NSW) (the Protection Act), which directed that Mr and Mrs Cmunt must not keep more than two dogs on the Premises.

On 12 November 2015, the Previous Council gave Mr and Mrs Cmunt a Structures Order under s 121B of the Environmental Planning and Assessment Act 1979 (NSW) (the Planning Act), which required the removal of certain structures greater than 1.8m in height; the removal of two poles; and the removal of a laser light fence. The Previous Council also gave Mr and Mrs Cmunt an Advertising Sign Order under s 121B of the Planning Act, which required the removal of the advertisements displayed on the advertising structure; and the removal of the advertising structure.

Mr and Mrs Cmunt did not comply with the Notices. The Council commenced proceedings against Mr and Mrs Cmunt in the Land and Environment Court (L&E Court) alleging that the Notices were not complied with and that the failure to comply breached the Protection Act and the Planning Act. The primary judge upheld the Council’s claim. His Honour made orders requiring Mr and Mrs Cmunt to cease keeping dogs on the Premises within 60 days and to comply with the Structures Order and the Advertising Sign Order. His Honour also ordered that the Council do all such things as are necessary or convenient to give effect to the terms of the Structures Order and the Advertising Sign Order if Mr and Mrs Cmunt did not comply with them.

Mr and Mrs Cmunt appealed and argued that:

i.   the Council did not have the power to issue the Notices and did not have standing to bring the proceedings in the L&E Court;

ii.   the Council’s accusations were completely false, there was no legal documentation for anything and no inspections of the Premises were ever done;

iii.   the Council relied on affidavits by its employees but only one of them was called for cross-examination;

iv   the Council did not deal with the matters raised by Mrs Cmunt in her letter of 6 March 2017 to the L&E Court;

v.   documents and photographs tendered by Mr and Mrs Cmunt to the L&E Court were not taken into account by the L&E Court.

Held (appeal dismissed) (Emmett AJA; Basten and Leeming JJA agreeing)

Jurisdiction & Standing

1.   The Previous Council had power to issue the Notices. Anything done by the Previous Council continues to have effect as if it had been done by the Council: Local Government (Council Amalgamations) Proclamation 2016 (the Proclamation), cl 17: at [21].

2. The Council is the appropriate regulatory authority for non-scheduled activities in its area, which includes the keeping of dogs: Protection Act, s 6(2). Mr Michael Broder, the Council’s delegate, had authority to exercise that power on behalf of the Previous Council: the Proclamation, cll 18 and 30: at [22].

3. The Council had standing to bring proceedings under s 252 of the Protection Act and s 123 (now s 9.45) of the Planning Act, notwithstanding that the Notices were issued by the Previous Council: at [23].

State of the Evidence before the L&E Court

4. There was no error in the primary judge’s finding that Mr and Mrs Cmunt received the Prevention Notice. That finding was supported by the evidence which showed that Mrs Cmunt referred to the Prevention Notice in three separate letters that she had sent to the Council: at [26].

5. The primary judge’s finding that dogs were being kept on the Premises by Mr and Mrs Cmunt was amply supported by evidence from five officers of the Council and one police officer who conducted inspections of the Premises: at [27].

6. It is clear that the structures and advertising sign existed. Mrs Cmunt accepted in cross-examination that it had been built at her request: at [30].

7.   The primary judge informed Mr and Mrs Cmunt of their entitlement to cross-examine the Council’s witnesses. However, Mrs Cmunt indicated that she did not require any of the Council’s witnesses other than Mr Broder: at [31]-[36].

Procedural Fairness

8.   The primary judge dealt with the matters raised by Mrs Cmunt in her letter dated 6 March 2017 concerning the height of the fences; the presence of a laser light fence; the presence of CCTV cameras; the transfer of the advertising structure and sign; the contention that a Prevention Notice can only be given to the owner of a dog; and the alleged conflict between the requirements of the Prevention Notice and the Structures Order: at [40]-[46].

9. The complaint that the documents tendered by Mr and Mrs Cmunt were not taken into account by the primary judge is misconceived. Mrs Cmunt informed the primary judge that all documents that she intended to rely on were before his Honour: at [49].

Judgment

1. BASTEN JA: I agree with Emmett AJA.

2. LEEMING JA: I agree with Emmett AJA.

3. EMMETT AJA:

Background

This appeal is concerned with a notice and two orders (the Notices) given to the appellants, Mrs Marie Cmunt and Mr Jiri Cmunt, by a predecessor of the respondent, Snowy Monaro Regional Council (the Council) in respect of a parcel of land situated in Kiparra Drive, Berridale, New South Wales (the Premises). The appeal is brought from orders made by the Land and Environment Court of New South Wales (the L&E Court) on 3 August 2017 (the August Orders) in proceedings brought by the Council when Mr and Mrs Cmunt failed to comply with the Notices.

The L & E Court Proceedings

4. The Council brought Class 4 proceedings in the L&E Court to enforce the Notices issued by the Council to Mr and Mrs Cmunt as follows:

• a Prevention Notice under s 96 of the Protection of the Environment Operations Act 1997 (NSW) (the Protection Act) concerning the keeping of dogs at the Premises;

• an Order under s 121B of the Environmental Planning and Assessment Act 1979 (NSW) (the Planning Act) relating to fencing structures on the Premises; and

• an Order under s 121B of the Planning Act relating to an advertising sign on the Premises.

5. Section 96 of the Protection Act applies where, relevantly, the Council reasonably suspects that an activity has been or is being carried on in an environmentally unsatisfactory manner at any premises or by any person. Under s 96(2) the Council may, by notice in writing, direct the occupier of the premises, or the person carrying on the activity, whether or not at the premises, or both the occupier and such person, to take such action as is specified in the notice within such period, if any, as is specified in the notice, to ensure that the activity is carried on in future in an environmentally satisfactory manner.

6. Between 17 January 2013 and 3 December 2014, the Council received a number of complaints concerning barking dogs at the Premises. On 23 June 2015, the Council gave notice to Mr and Mrs Cmunt of its intention to issue a prevention notice under s 96 of the Protection Act and called for submissions as to why it should not do so. By an instrument entitled “Direction to take Preventative Action” dated 7 August 2015 addressed to Mr and Mrs Cmunt at the Premises (the Prevention Notice), Mr and Mrs Cmunt were directed to take preventative action , which may be summarised as follows:

• not keep more than two dogs at the Premises at any one time;

• construct a solid fence not less than 1.8 m high around the rear yard of the Premises;

• construct a solid gate at the Premises;

• provide adequate food and drinking water for the dogs;

• construct one or more sheds to accommodate the dogs;

• keep both dogs in the shed except when being exercised;

• when dogs are in the shed, keep each dog in a separate enclosure; and

• not allow dogs to be outside the shed except between specified hours.

Apart from the requirement to provide adequate food and drinking water, the other measures were to be implemented within eight weeks from 2 October 2015.

7. Section 121B(1) of the Planning Act relevantly provides that an order may be given to a person by the Council to do or to refrain from doing a thing specified in the table set out in s 121B if the circumstances specified in the table exist and the person comes within the description in the table. Relevantly, item 2 of the table provides that the Council may give to the owner of a building an order to demolish or remove a building if the building is erected without prior development consent or approval. Item 5 relevantly provides that the Council may give an order to alter, obliterate, demolish or remove an advertisement and any associated advertising structure to the person who caused the advertisement or structure to be erected or to the owner or occupier of the premises on which the advertisement is displayed or the advertising structure is erected. Such an order may be given where the advertisement is unsightly, objectionable or injurious to the amenity of any natural landscape, foreshore, public reserve or public place at or near where the advertisement is displayed or the advertisement is displayed contrary to a provision made by or under the Planning Act or the advertising structure is erected contrary to a provision made by or under the Planning Act.

8. On 6 May 2014, the Council wrote to Mr and Mrs Cmunt raising concerns about works on the Premises consisting of additional boundary fencing, “laser light” fencing, a surveillance device on a pole near the side boundary and advertising signage at the front of the Premises, which the Council considered to be unlawful. The Council invited Mr and Mrs Cmunt to seek development consent for the identified items. On 23 June 2015, the Council wrote to Mr and Mrs Cmunt again raising the same concerns and again inviting them to seek development consent. Following a request on behalf of Mr and Mrs Cmunt dated 25 June 2015, the Council granted an extension to 11 August 2015. Following further requests, the Council wrote to Mr and Mrs Cmunt on 11 August 2015 saying that it would not extend the time but that an extension would be reconsidered on receipt of appropriate representations by Mr and Mrs Cmunt’s solicitor. It appears that no further representations were made.

9. On 9 October 2015, the Council gave notice to Mr and Mrs Cmunt of its intention to give an order under s 121H of the Planning Act foreshadowing the making of an order pursuant to item 2 in the table in s 121B of the Planning Act. Also on 9 October 2015, the Council gave notice to Mr and Mrs Cmunt of its intention to give a second order under s 121H of the Planning Act foreshadowing the making of an order pursuant to item 5 in the table in s 121B of the Planning Act.

10. By order dated 12 November 2015 addressed to Mr and Mrs Cmunt (the Structures Order), the Council ordered Mr and Mrs Cmunt to remove certain additional structures greater than 1.8 m in height separate from existing fences along the side boundaries of the Premises and at the rear boundary of the Premises. The order also required the removal of a wooden pole at the side boundary of the Premises together with a pole within the Premises and the laser light fencing attached to the fence at the front of the Premises. The Structures Order was to be complied with by 14 December 2015.

11. The Council also gave Mr and Mrs Cmunt a second order dated 12 November 2015 (the Advertising Sign Order), which required them to remove the advertisements displayed on the advertising structure shown in the order and to remove the advertising structure. The Advertising Sign Order was to be complied with by 26 November 2015.

12. None of the Prevention Notice, the Structures Order or the Advertising Sign Order was complied with. On 22 September 2016, the Council commenced proceedings in the L&E Court by summons seeking to enforce the Prevention Notice, the Structures Order and the Advertising Sign Order. The Council alleged that none of them had been complied with. The proceedings were brought under s 252 of the Protection Act and s 123 of the Planning Act respectively. In support of the summons, the Council filed points of claim alleging that the failure to comply breached the Protection Act and the Planning Act.

13. On 3 August 2017, the Chief Judge of the L&E Court (the primary judge) made the August Orders, which consisted of all of the declarations and most of the orders sought by the Council in its summons. Specifically, the August Orders consisted of:

• Declarations that Mr and Mrs Cmunt had failed to comply with the Prevention Notice, with the Structures Order and with the Advertising Sign Order.

• Orders requiring Mr and Mrs Cmunt to cease keeping dogs on the Premises within 60 days and to comply with the Structures Order and the Advertising Sign Order in the manner specified in the August Orders.

• Order that the Council do all such things as are necessary or convenient to give effect to the terms of the Structures Order and the Advertising Sign Order if Mr and Mrs Cmunt did not comply with them.

• Declaration that Mrs Cmunt had carried out development on the Premises in breach of the Planning Act.

The Appeal

14. The proceedings in the L&E Court were brought by the Council against both Mrs Cmunt and Mr Cmunt and the August Orders were made against both of them. However, a notice of intention to appeal filed on 27 September 2017 and a notice of appeal filed on 15 November 2017 named only Mrs Cmunt as appellant and Mr Cmunt was not a party to either. In the course of the hearing of the appeal, an order was made, without opposition from the Council, for Mr Cmunt to be joined as an appellant. The notice of appeal was filed out of time. However, the Council does not oppose an order extending the time for filing the notice of appeal. The Court should therefore make an order nunc pro tunc extending the time for the filing of the notice of appeal up to and including 15 November 2017. The notice of appeal as filed named officers of the Council as respondents. That was inappropriate and, on 14 March 2018, an order was made for the substitution of the Council as the only respondent to the appeal.

15. Mr and Mrs Cmunt appeared in person without legal representation. Mrs Cmunt addressed the Court on her own behalf and on behalf of Mr Cmunt, with the Court’s leave granted without opposition from the Council. Mrs Cmunt had the assistance of an interpreter in the Czech language. In addition, the Court was assisted by amici curiae appointed by the President and the Court is indebted to Mr NM Eastman and Ms JM McKelvey for the assistance given by them in that capacity.

16. Although not strictly relevant to the appeal, this Court was informed that orders were made by Sheahan J in the L&E Court on 31 August 2018 which found Mr and Mrs Cmunt guilty of contempt for failing to comply with the August Orders. [1] It is relevant, in that regard, that on 12 February 2018, the President dismissed an application by Mrs Cmunt for a stay of the August Orders. [2] The Council proffered an undertaking that it would take no steps to enforce the orders made by Sheahan J until 14 days after the disposition of the appeal.

    1. See Snowy Monaro Regional Council v Cmunt (No 2) [2018] NSWLEC 136.

    2. See Cmunt v Vescio; Broder [2018] NSWCA 21.

17. The grounds are as follows:

“1.   The Council has no jurisdiction above the residents. I ask that the Council produces lawful contract between me my family and the Council.

2.   This is a complete false accusation. There is no legal documentation for anything. The inspection was never done on our property and no one was talking with us.

3.   On my response which was sent to the Environmental Court the Applicant did not reply. Reply was not done because there was nothing to answer for. ….

4.   In the Court to my surprise my documents and photos were not taken into account. The Judge told me that he does not have any documents from me and when they were found about 1 hour later so the Judge said that for my benefit he will take out the documents from the file and he did not look at them at all.

5.   The Council breached in the case all Australian laws and rules.

A.   This false accusation is the business of Josef Vescio. This person is illegally in the position of General Manager. Josef Vescio did not appear at all on the voting list (annexure 2) but he is the General Manager of Snowy Monaro Regional Council. For this case his puppet is Michael Broder - worker for waste management.

B.   Council completely ignored Court Order for 60 days period and intention to appeal. 25.9 (in 60 days period) Mr. Broder sent a slanderous letter to the whole street Kiparra Dr. (annexure 3). Mr. Broder wrote this false letter for Regulation and Compliance but at the same time his position was and is a worker in Waste Management.

C.   During the appeal on the 10.10.2017 Mr. Vescio and Mr. Broder demolished all our front property. They came to our property with a bulldozer, they destroyed and stole our advertising notice board with all information about the properties customers and business and they destroyed the fences which were legal (height 180cm).

I am sending the letters which I have written to the Council annexure 4, 5, 6. I have not received the answer from the Council for this damage. The damage which the Council has done is $20,000.

6.   The Council had against us the bundle of statements from Council workers but no one of them came to the Court. The only person who came and spoke in the witness box was Mr. Broder – waste management worker. This is clearly a conflict of interest.

No one from the residents complained. Our neighbours are shocked and upset for what the Council has done to us, because it damaged the whole street.”

18. The grounds of appeal relied on by Mr and Mrs Cmunt were restated by the Amici Curiae in a way that appears to have been accepted by both Mr and Mrs Cmunt and by the Council. There is no substance in any of the grounds for the reasons that follow.

Ground 1

19. Ground 1 is that the Council did not have jurisdiction over Mr and Mrs Cmunt and their family such that the Council did not have power to issue the Prevention Notice, the Structures Order or the Advertising Sign Order and did not have standing to bring the proceedings in the L&E Court. The contention of Mr and Mrs Cmunt is that a contract is required between them and the Council before the Council has any jurisdiction over them as residents. That contention indicates a complete misapprehension on their part as to the legislative scheme of local government in New South Wales. The powers of the Council are specified in relevant legislation such as the Protection Act and the Planning Act, as well as the Local Government Act 1993 (NSW) (the Local Government Act).

20. By the Local Government (Council Amalgamations) Proclamation 2016 (the Proclamation), the Council was formed on 12 May 2016 by the amalgamation of Snowy River Shire, Bombala Council and Cooma Monaro Council (the Previous Councils). The Previous Councils had each been established under the Local Government Act. Clearly, the relevant Previous Council had power to issue the Prevention Notice, the Structures Order and the Advertising Sign Order and to commence proceedings to remedy or restrain breaches of the Planning Act and the Protection Act by reason of failure to comply with them. Clause 17 of the Proclamation provided that anything done by a Previous Council continues to have effect as if it had been done by the Council.

21. Section 6(2) of the Protection Act relevantly provides that a local authority (which includes a local council) [3] is the appropriate regulatory authority for non-scheduled activities in its area. The keeping of dogs was a non-scheduled activity under the Protection Act. An action by the Council includes its delegate. Mr Michael Broder signed each of the instruments. A copy of the delegation to the “Manager, Regulation and Compliance”, the position held by Mr Broder at the dates of the Prevention Notice, the Structures Order and the Advertising Notice Order, was in evidence before the L&E Court. Under cl 18 of the Proclamation, such delegation continued following the amalgamation. Clauses 30 and 31 of the Proclamation deal with the transfer of staff from the Previous Councils to the Council. Under Clause 30, a person who held any senior staff position immediately before the amalgamation day is taken to be the holder of that position in the Council. Under Clause 31, each member of staff, other than senior staff, of a Previous Council is transferred to the Council. The primary judge made no error in concluding that the relevant Previous Council had power to issue the Notices and that Mr Broder had authority to exercise that power on behalf of the Previous Council.

    3. See The Protection Act, Dictionary.

22. The issue of whether the Council had standing to bring the enforcement proceedings in the L&E Court was dealt with by the primary judge. His Honour concluded that the Council had standing to bring proceedings under s 252 of the Protection Act and s 123 of the Planning Act, notwithstanding that the Notices were issued by the Previous Councils. There is no error in his Honour’s conclusion. Section 252(1) of the Protection Act and s 123 (now s 9.45) of the Planning Act permits the Council to bring proceedings in the L&E Court to remedy or restrain a breach of those Acts.

Ground 2 and Ground 6

23. Ground 2 is that the Council’s accusations were completely false, there was no legal documentation for anything and no inspections of the Premises were ever done. Ground 6 is that the Council relied on affidavits by its employees but only one of them was called for cross-examination. The Amici Curiae dealt with these two grounds together on the basis that each relates to the state of the evidence before the L&E Court.

24. Written submissions were filed on behalf of Mr and Mrs Cmunt but they were barely intelligible. The thrust of their complaint appears to be that they were blamed for keeping dogs on the Premises in circumstances where they were not the owners of the dogs and in circumstances where they allegedly did not receive the Prevention Notice. Secondly, they asserted that there was no evidence that the alleged illegal structures contravened the Planning Act.

25. The primary judge found that Mr and Mrs Cmunt received the Prevention Notice and there is no basis for finding any error on his Honour’s part in making that finding. Mr Broder gave evidence that he posted the Prevention Notice and placed an envelope containing it in the letterbox on the Premises. A letter dated 22 August 2015 from Mrs Cmunt to the Council’s Lord Mayor demanded the cancellation of an administration fee of $506 referred to in the Prevention Notice. A letter of the same date to the Council’s general manager referred to a document “in our letterbox” and referred to documents bearing the dates of the notice of intention to give a Prevention Notice and the Prevention Notice itself. A letter dated 7 September 2015 from Mrs Cmunt’s solicitor to the Council referred to a “direction to take preventative action” and threatened to take legal action if it were not withdrawn.

26. The primary judge found that dogs were being kept on the Premises by Mr and Mrs Cmunt in breach of the Prevention Notice. That finding was amply supported by evidence from five officers of the Council and one police officer who conducted inspections on 4 February 2015, 11 May 2015, 25 May 2015, 21 October 2015, 22 October 2015, 18 November 2015, 2 December 2015, 17 December 2015, 4 May 2016, 23 April 2017, 8 May 2017 and 21 June 2017. Photographs were taken by officers of the Council showing dogs on the Premises. Evidence was given by a Council officer that he saw Mrs Cmunt on the Premises at that time and a photograph in evidence taken by the officer was said to have been of Mrs Cmunt. Mrs Cmunt, however, asserted that the photograph had been “manipulated”. There is no justification in the evidence for such an assertion.

27. There is nothing in the material before the primary judge or before this Court that could support a challenge to his Honour’s findings. There can be no contention that they were contrary to any incontrovertible facts or uncontested testimony or that they were glaringly improbable or contrary to compelling inferences. [4]

    4. See Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28] – [29].

28. Mr and Mrs Cmunt disputed that the structures exceeded the maximum height. The Amici Curiae drew attention to observations made by the primary judge during the course of the hearing that Mr and Mrs Cmunt had not brought any evidence before the Court of the height of the fences to defend their position. The Amici Curiae suggested that that comment may have “potentially shifted the onus of proving the height of the fence onto” Mr and Mrs Cmunt when it was firmly on the Council. However, as the Amici Curiae accepted, his Honour ultimately relied on the evidence presented on behalf of the Council to draw the inference that the relevant fences were in excess of the maximum of 1.8 m in height. In the course of oral argument before this Court, Mrs Cmunt endeavoured to demonstrate that, because of the gradient of the land of the Premises and adjoining parcels, an error had been made by Council officers.

29. However, as the primary judge pointed out, even if there were a difference in levels to the extent asserted by Mrs Cmunt, that was insufficient to overcome the fact that the fences in question exceeded the maximum by more than that differential. There was no error in the fact-finding process undertaken by his Honour. It is clear that the structures and advertising sign existed. Mrs Cmunt accepted in cross-examination that they had been built at her request.

30. In the course of the trial before his Honour, Mrs Cmunt indicated that she did not require any of the Council’s witnesses for cross-examination other than Mr Broder. Mr Broder was cross-examined by Mrs Cmunt. She was invited to ask questions of other witnesses and declined to do so on the basis that “they are not truthful”.

31. The Amici Curiae observed that it does not appear to have been explained to Mrs Cmunt, as a self-represented litigant, that her failure to cross-examine other witnesses might have adverse consequences for her case. [5] However, in the course of the hearing before the primary judge, his Honour told Mr and Mrs Cmunt that if they disagreed with the factual statements by the Council’s witnesses, they could later give evidence to say what they thought were the true facts and that they could also ask questions of any of those witnesses who had given statements. His Honour explained that when counsel for the Council used the expression “cross-examination” that indicated that Mr and Mrs Cmunt were entitled to ask questions of the Council’s witnesses if they disagreed with their statements. His Honour told them that if they wanted to ask any other people, they needed to inform the Court because the Council would have to arrange for the witnesses to come to Court.

    5. See MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46.

32. After Mr Broder gave oral evidence, the primary judge offered Mrs Cmunt the opportunity to cross-examine him, which she accepted. In her cross-examination, she demonstrated an awareness that questions could be put challenging the truthfulness of the evidence given by him. For example, Mrs Cmunt challenged Mr Broder’s evidence as to when photographs were taken and suggested to him that he was not telling the truth that he said that he had tried to telephone her.

33. After Mr Broder had been cross-examined, the primary judge again suggested to Mr and Mrs Cmunt that they could cross-examine other Council witnesses. Following the tender of video evidence showing dogs on the Premises, Mrs Cmunt asserted that the videos were not videos of the Premises. She was then allowed a further opportunity to ask questions of the witnesses who took the videos. Mrs Cmunt responded in the negative.

34. It might have been arguable that the primary judge did not explain that, if Mr and Mrs Cmunt intended to give evidence contradicting the Council’s evidence, they were obliged to cross-examine the Council witnesses to put the alternative case to them, in accordance the principle in Browne v Dunn (1893) 6 R 67. However, the point would have been of no practical import. Where the primary judge accepted evidence as unchallenged, it was because there was no contrary evidence, not because any contrary evidence had not been put to the Council’s witness.

35. It is clear that Mr and Mrs Cmunt were aware of their entitlement to cross-examine. The primary judge informed them of that entitlement on several occasions. It follows that there is no substance whatsoever in ground 2 or ground 6.

Ground 3 and Ground 4

36. Ground 3 is that the Council did not reply to the response given by Mr and Mrs Cmunt because there was nothing to answer. Ground 4 is that documents and photographs tendered by Mr and Mrs Cmunt to the L&E Court were not taken into account by the L&E Court. The Amici Curiae characterised these grounds as relating to procedural fairness.

37. Mrs Cmunt annexed to her notice of appeal her letter of 6 March 2017 to the L&E Court. Her complaint appears to be that the primary judge did not deal with the matters raised by her.

38. The substantive matters identified in the letter of 6 March 2017 were described by the Amici Curiae as follows:

• location of photographs and lack of inspection within the Premises;

• height of fences;

• presence of a laser light fence;

• presence of cameras;

• transfer of advertising structure and sign;

• a prevention notice being able to be given only to the owner of a dog;

• conflict between requirements of the Prevention Notice and the Structures Order;

• allegations of the complaint being retaliatory; and

• behaviour of Council officers.

39. The primary judge observed that Mrs Cmunt contested that the Council had proved the precise height of the fences and asserted that the height could only be measured from within the Premises and that Mr Broder did not enter the Premises for the purposes of measuring. His Honour observed that, whilst the height of each fence could have been measured from the Premises, that was not necessary in order for the Council to prove that each fence did not meet the exemption criteria. The Council could prove that the height of each fence exceeded the maximum height by means such as measuring the height of the fences from the adjoining premises and establishing that the fences were higher than the existing fences. Clearly, his Honour addressed the question of the evidence as to the measurement of the fences.

40. The primary judge went on to observe that Mr Broder is an experienced licensed builder with knowledge of levels who said that he considered that there was a change in levels between the Premises and the adjoining premises, with the Premises being lower than the adjoining premises on each side. His Honour accepted Mr Broder’s evidence that the height of the fence above the lower ground level of the Premises would be higher than it would be above the higher ground level on the adjoining premises. His Honour concluded that it did not matter what the precise height of the new fences was and that it was sufficient that it was higher than 1.8 m.

41. The primary judge adverted to the laser light fence on the side boundaries and found that the extended laser light fence on the side boundary did not meet the specified development standards. The extended laser light fence did not meet the description of being “constructed using post and wire or post and rail” as required in the relevant instrument. Clearly, his Honour had regard to the existence of the laser light fence.

42. The primary judge referred in his reasons to a wooden pole on which CCTV cameras were mounted, which had been erected inside the existing wooden paling fence of the Premises. His Honour also referred to evidence from Mrs Cmunt that the pole with the cameras was installed in 2012 at her request and that the people who installed it advised Mr and Mrs Cmunt that the pole had to be a minimum of 2.5 m above the ground for the cameras to be effective. His Honour also referred to a second pole which was not as high as the first pole because the cameras served a different purpose, namely, to monitor animals on the ground. His Honour referred on several occasions to the cameras in the course of his reasons.

43. The primary judge dealt at some length with the advertising sign. In particular, his Honour dealt with the contention advanced by Mr and Mrs Cmunt that the sign had been on the Premises legally from the beginning of 2011 and that everything had been checked by “the town planning office”. Mrs Cmunt’s letter asserted that the sign was custom made according to Council regulations from 2008 and that there had been no problems when the former owner installed it. His Honour ultimately concluded that none of the matters raised by Mrs Cmunt were in answer to the allegation of a breach of the Planning Act by failing to comply with the Advertising Sign Order directing removal of the sign. By failing to comply with the Advertising Sign Order, Mr and Mrs Cmunt had breached the Planning Act.

44. The contention that a Prevention Notice can only be given to the owner of a dog is misconceived. The primary judge dealt with the contention at length. It is clear from s 96 of the Protection Act outlined above that a Prevention Notice may be given to an occupier or a person engaged in an activity. Mrs Cmunt asserted from time to time in the course of argument before this Court that she and Mr Cmunt did not live at the Premises. There is ample evidence before the Court that they owned the Premises and received mail addressed to them at the Premises. There was evidence that Mrs Cmunt was regularly seen at the Premises.

45. Mrs Cmunt asserted that she was authorised by the Prevention Notice to erect fences on the side boundary and rear boundary of the Premises, in so far as the notice of 23 June 2015 required the construction of a solid fence not less than 1.8 m high to block the dogs’ view into adjoining properties. The primary judge rejected Mrs Cmunt’s contentions on the basis that the fences were erected before the Prevention Notice was issued on 7 August 2015. Further, the fences were not erected in accordance with the terms of the Prevention Notice in any event. His Honour concluded that the extended laser light fence on the side boundary and the clipboard extension on the rear boundary were not erected in accordance with the Prevention Notice.

46. Mrs Cmunt’s allegations concerning dilatory conduct and Council officers have no bearing on the question. There was no reason for the primary judge to deal with such matters.

47. The other matter concerning procedural fairness arises out of two occasions during the hearing when it was recorded that Mrs Cmunt was not present in Court. On the first occasion, the proceedings were halted to accommodate her absence. There is a question as to the extent to which that occurred on the second occasion, during the Council’s closing submissions. On the second occasion, the interpreter informed his Honour that Mrs Cmunt was not present. However, his Honour was not asked to wait until she returned. Nevertheless, the transcript records that his Honour addressed Mrs Cmunt some 10 lines later in the transcript, suggesting that he may well have waited for her to return. In any event, very little took place between when the interpreter notified his Honour that Mrs Cmunt had left the Courtroom and when his Honour addressed Mrs Cmunt shortly thereafter. There is no basis for concluding there was any practical injustice or lost opportunity for Mrs Cmunt to advance her case arising from any temporary absence.

48. The complaint about lack of documents appears to be misconceived. The primary judge provided Mr and Mrs Cmunt with a detailed explanation of the process that was to be followed, including the need for them to inform him what documents they wanted the Court to consider. Mr and Mrs Cmunt were shown the documents that had been extracted from the Court file and asked whether they were the documents that they wanted to rely on. Mrs Cmunt said that she did not have anything else. Mrs Cmunt subsequently confirmed that all the documents that she intended to rely upon were before his Honour. His Honour proceeded to identify one by one each of the documents on which Mrs Cmunt sought to rely. In the course of the hearing before this Court, Mrs Cmunt was unable to identify any documents that were not taken into account by his Honour. There is no substance in Ground 4.

Ground 5A

49. Ground 5A is that the general manager of the Council was illegally in that position and was not elected. There is no substance in the complaint that the relevant officers were not authorised. The matter is addressed above.

Ground 5B and Ground 5C

50. These grounds relate to enforcement of the August Orders after notice of intention to appeal had been filed. Ground 5B is that the Council sought to enforce the August Orders notwithstanding that notice of intention to appeal had been lodged. Ground 5C is that the Council executed the August Orders to demolish the structures notwithstanding that the appeal was on foot. They are not capable of constituting grounds of appeal. In any event, as indicated above, on 12 February 2018, the President refused to stay the August Orders.

51. On 31 August 2018, Sheahan J found Mr and Mrs Cmunt guilty of contempt. However, the Council has undertaken that it will not seek to enforce the orders made by Sheahan J until 14 days after this Court has disposed of the appeal.

Conclusion

52. The appeal is without merit. It must be dismissed with costs.

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SCHEDULE 1

Declarations and Orders

(1) Declares that the first and second respondents have failed to comply with the Prevention Notice given to them by the applicant pursuant to s 96 of the Protection of the Environment Operations Act 1997 dated 7 August 2015 in relation to Lot 21 DP 250314, known as 12 Kiparra Drive, Berridale NSW 2628 (the Premises).

(2)   Orders the respondents, within 60 days, to cease keeping dogs on the Premises.

(3) Declares that the respondents have failed to comply with Order 0008/2016 given to them by the applicant pursuant to s 121B of the Environmental Planning and Assessment Act 1979 dated 12 November 2015 to remove the identified structures (first Order).

(4)   Orders that the respondents comply with the first Order within 60 days by:

(a)   removing the additional wooden structure (greater than 1.8m in height) separate to the existing fence along the side boundary (between 10 and 12 Kiparra Drive);

(b)   removing the additional structure (greater than 1.8m in height) separate to the existing fence along the side boundary (between 12 and 14 Kiparra Drive);

(c)   removing the additional structure (greater than 1.8m in height) separate to the existing fence along the rear boundary (between 12 and 18 Kiparra Drive);

(d)   removing the wooden pole at the side boundary (between 10 and 12 Kiparra Drive);

(e)   removing the pole within the Premises (near the side boundary between 12 and 14 Kiparra Drive); and

(f)   removing the “Laser light” fencing attached to the fence along the side boundary (between 10 and 12 Kiparra Drive) at the front of the Premises.

(5)   Orders that, should the respondents fail to comply with order 4 above, the applicant is to exercise its functions under s 121ZJ(1) of the Environmental Planning and Assessment Act 1979 to do all such things as are necessary or convenient to give effect to the terms of the first Order, including the carrying out of any work required by the first Order.

(6) Declares that the respondents have failed to comply with Order 0007/2016 given to them by the applicant pursuant to s 121B of the Environmental Planning and Assessment Act 1979 dated 12 November 2015 to remove the identified advertisements and advertising structure (second Order).

(7)   Orders that the respondents comply with the second Order within 60 days by:

(a)   removing the advertisements displayed on the advertising structure; and

(b)   removing the advertising structure from the Premises.

(8)   Orders that, should the respondents fail to comply with order 7 above, the applicant is to exercise its functions under s 121ZJ(1) of the Environmental Planning and Assessment Act 1979, to do all such things as are necessary or convenient to give effect to the terms of the second Order including the carrying out of any work required by the second Order.

(9)   Declares that the first respondent has carried out the following development on the Premises in breach of the Environmental Planning and Assessment Act 1979:

(a)   the erection of the structures which the respondents were required to remove by the first Order, and

(b)   the erection of the advertising structure which the respondents were required to remove by the second Order.

(10)   Orders the respondents to pay the applicant’s costs of these proceedings.

Endnotes

Decision last updated: 22 October 2018