Duncan v Moore (No 2)
[2000] NSWLEC 28
•09/13/1999
Land and Environment Court
of New South Wales
CITATION: Duncan v Moore and Ors (No 2) [2000] NSWLEC 28 PARTIES: APPLICANT:
RESPONDENTS:
Duncan
Moore and OrsFILE NUMBER(S): 40061 of 1999 CORAM: Talbot J KEY ISSUES: Orders :- permanent stay of proceedings LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Electricity Supply Act 1995
Parliamentary Electorates and Elections Act 1912CASES CITED: DATES OF HEARING: 13/09/99 EX TEMPORE
JUDGMENT DATE :09/13/1999 LEGAL REPRESENTATIVES:
APPLICANT:
In person
SOLICITORS:
n/aFIRST RESPONDENT:
Mr P McEwen SC
SOLICITORS:
Makinson and d'ApiceSECOND RESPONDENT:
THIRD RESPONDENT:
Mr J Kildea (Barrister)
SOLICITORS:
Riley Lawyers
n/a (submitting)
JUDGMENT:
IN THE LAND AND Matter No. 40061 of 1999
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 13 September 1999
Third Respondent
1. HIS HONOUR: This is an application for a stay or dismissal of the proceedings which have been commenced by the applicant pursuant to an Application Class 4 filed on 18 March 1999 seeking, inter alia, a declaration that the fixing of campaign posters to power poles is in breach of the provisions of the Environmental Planning and Assessment Act 1979 (the EP&A Act) and other relief under the Parliamentary Electorates and Elections Act 1912 and consequential orders.
2. Judgments delivered by her Honour the Chief Judge and by myself respectively on 23 March 1999 and 30 June 1999 provide an insight into the history of the matter up to the point where the applicant filed a Further Amended Points of claim to reflect my findings in regard to the jurisdiction of this Court to entertain certain aspects of the application for relief, particularly under the Parliamentary Electorates and Elections Act and the Electricity Supply Act 1995.
3. Consequent upon my judgment of 30 June 1999 the applicant filed a Further Amended Points of Claim and after setting out the basis upon which the claim was brought, including particulars, the applicant alleges that development consent is required under cl 16(2) and cl 25(B2) of the Woollahra Local Environmental Plan (the LEP).
4. Much has been said about what the respondents have done to varying degrees in order to meet the complaint raised by the applicant to the effect that the posters were erected and have not been subsequently removed. There is now a concession that such posters as were erected within the Woollahra area by the first respondent have been removed. The same concession is not made in regard to the actions of the second respondent. Mr Duncan informs the Court from the bar table that there may be “ten'ish” remnants of posters which remain from the original posters erected by the second respondent and at the hearing he would seek to lead evidence to that effect.
5. Submissions have been made about the practice of the Court to confine its power to grant declaratory relief so that it is not involved in answering abstract or hypothetical questions. Generally circumstances might be identified where the only relief that is ultimately sought is a declaration and no orders flow from it.
6. Insofar as both respondents are concerned, the applicant seeks to maintain his application for relief that they be restrained in the future from erecting posters in contravention of the LEP.
7. The respondents have drawn on established authority to put the proposition that in order to restrain future actions there first must be shown a substantial hardship to the applicant. I am not sure that principle is necessarily applicable in proceedings of this nature where the Court is asked to enforce a public duty or an obligation which arises under a statute such as the EP&A Act which itself has regard to public rights and interests. Nevertheless, the hardship might be the detriment that could flow by way of injury to the environment if the practices which are here the subject of challenge are left unchecked. Mr Duncan also made some points about the ramifications of any decision in these proceedings extending beyond the Municipality of Woollahra and applying as a warning generally to other candidates in elections that they need to heed provisions such as those contained in the LEP.
8. There has been a lot of to-ing and fro-ing between the parties and at various times undertakings have been sought. Mr Duncan asserts that if the opportunity had been taken at some earlier time to remedy the situation, then the necessity for these matters to proceed would not now exist. All of those things may well be correct.
9. There are a number of flaws in the argument put forward by the applicant in support of his submission that the proceedings should be maintained on foot and these need to be dealt with. Firstly, there is no evidence, either of a substantive or even inferential kind, that would lead the Court to have the remotest inclination to find that either of the remaining two respondents are likely to offend again. The third respondent has entered a submitting appearance.
10. Secondly, the utility of making any orders is very much in question, even if the applicant was successful in obtaining a declaration to the effect that he seeks. This is so given that there are now, by admission, no relevant offending posters in existence so far as the first respondent is concerned and those that do remain in the case against the second respondent are, firstly, remnants and secondly, few in number. I do not accept that the existence of remnants beyond those identified by the applicant is a real possibility. On the evidence as it stands, surveys have been undertaken on behalf of both respondents. The surveys disclose that the direct evidence produced by the applicant is no longer in existence.
11. I do not mean to demean the ultimate argument that posters such as are the subject of these proceedings can cause environmental harm. I do not seek to make any judgment about the particular behaviour of the respondents in this particular case and the seriousness of the breach of the EP&A Act that may or may not have occurred.
12. The serious problem that the applicant has is that the Further Amended Points of Claim insist that the Court make a declaration that the erection of the posters requires development consent. In that respect I accept the strength of the submission made by both respondents and particularly by Mr Kildea in reply that the nature of the posters which are the subject of these proceedings is such that they should properly be regarded as temporary signs which prima facie fall within the terms of a temporary sign described in the table to cl 25B of the LEP. Applying the most basic rules of construction and addressing the words as they appear according to their ordinary meaning, a poster erected for the purpose of an election, be it of any kind, is of a temporary nature.
13. The election that was being held at the relevant time was a State election. Nevertheless, the State election involves candidates standing in various local electorates. The posters which are the subject of evidence relate only to the election of the local candidate. The event that was the catalyst for the erection of the posters was the election of a local member of parliament within the electoral district of Bligh which covers part of the Woollahra Municipality.
14. I do not have to make a final finding about that. Nevertheless my remarks must lead to an indication that there is a strong case in answer to the applicant's case. By way of defence, the provisions of cl 25(B1) can be raised on the basis that the erection of the posters was for the purpose of an advertisement described in the Table of that clause and thus could be carried on without consent. It is not alleged that the conditions under which such a notice can be erected have been breached. What is alleged is that there has been a breach of cl 16. I am not satisfied the applicant has established a strong case on the construction of the LEP in that respect.
15. Having regard to the circumstances and taking into account the whole of the evidence, together with the elaborate submissions presented by counsel for the two respondents and Mr Duncan himself, I am satisfied this is an appropriate case where the proceedings should be the subject of a permanent stay. I propose to make an order accordingly.
17. The exhibits may be returned. The proceedings are permanently stayed.16. Obviously there are matters that would need to be ventilated in addition to those which were raised before me today in regard to any question of costs. There has been a great deal of correspondence, negotiation and discussion which may or may not lead to a special order as to costs. I do not seek to reach any conclusion about that, nor to give any indication except to explain why it is that the question of costs may have to remain in abeyance. Hopefully the parties, having considered the reasons given for staying the proceedings, may be able to come to some conclusion in that respect without further hearing. It is nevertheless a relevant matter that the proceedings have a very small prospect of success. Notwithstanding, I reserve the question of costs.
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