Knox v Wingecarribee Council

[1998] NSWLEC 93

Land and Environment Court

of New South Wales

CITATION:	Knox v Wingecarribee Council [1998] NSWLEC 93
PARTIES:	APPLICANT Knox RESPONDENT Wingecarribee Council
FILE NUMBER(S):	10316; 40126 of 1997
CORAM:	Lloyd J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, ss 76, 109(1), 124 Wingecarribee Local Environmental Plan 1989
CASES CITED:	Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157; CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270; Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185.; F Hannan v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306
DATES OF HEARING:	02 - 06/02/98
DATE OF JUDGMENT:	03/03/1998
LEGAL REPRESENTATIVES:	APPLICANT S B Austin QC & P R Clay Knox Wight & Strickland, Mosman RESPONDENT D P Wilson B Bilinsky & Co, Bowral

JUDGMENT:

1 There are two proceedings before the Court:

(1) 40249 of 1997 (Athe Class 4 proceedings@) in which the applicant (Wingecarribee Council) seeks a declaration that the respondent (Mrs J Knox) has carried out development on land in Range Road, Glenquarry, without consent having been obtained therefor, contrary to the provisions of s 76 of the Environmental Planning and Assessment Act 1979 (Athe Act@) and for consequential relief including demolition of the development which has been carried out; and

(2) 10316 of 1997 (Athe Class 1 proceedings@) in which Mrs Knox appeals under ss 96(1) and 97(1) of the Act against the deemed refusal by the Council of a development application for the development which is the subject of the Class 4 proceedings.

2 The Registrar made an order that both proceedings be heard together and the evidence in one matter shall be evidence in the other. For convenience I will refer to the Council as Athe applicant@ and to Mrs Knox as Athe respondent@.

3 The land on which the development has taken place is known as AMarracloon@, being Lot 3 in Deposited Plan 860819, and having an area of about 65.48 hectares. The land is owned by Mrs Knox and is used by her and her husband, Mr J Knox, for the two-fold purposes of their dwelling house and for the breeding of cattle.

4 The development which is the subject of these proceedings comprises an earth mound or bank about 750 metres in length, 2.5 metres in height, about 6 metres in width at its base and about 0.5 metre in width at its apex. It comprises about 7,000 cubic metres of earth. It has been constructed from material excavated from the subject land for the purposes of constructing a dwelling house and a dam. The mound has been constructed adjacent to the western boundary of the land along its frontage to Range Road. The mound has now been grassed and a row of columnar conifers ALeightons Green@ (cupressocyparis leylandii) has been closely planted at the base of the mound adjacent to Range Road. One of the consequences of the erection of the mound is the obstruction of extensive north-easterly views previously available from Range Road across the subject land.

5 After the commencement of these proceedings the applicant refused to grant its consent to a development application for the earthworks for the following reasons:

A1. The earthen wall is inappropriate within the existing landscape as the wall represents a regular physical mass which intrudes into the natural landscape, and obstructs previously available views.

Condition of Refusal imposed having regard to matters listed for consideration under Section 90(b), (c), (e), (h) and (m1) of the Environmental Planning and Assessment Act 1979.

2. The earthen wall and associated plantings of Leyandii Leytanb will be visually prominent and as such represent the introduction of an artificial and degraded landscape which is in conflict with the existing natural landscapes within the locality.

Condition of Refusal imposed having regard to matters listed for consideration under Section 90(c) and (h) of the Environmental Planning and Assessment Act 1979.

3. The earthen wall and associated plantings of Leyandii Leytanb conflict with the Council=s overall objective of preserving landscapes of notable scenic and aesthetic significance.

Condition of Refusal imposed having regard to matters listed for consideration under Section 90(h) and (o) of the Environmental Planning and Assessment Act 1979.

4. The earthen wall and associated plantings of Leylandii Leytanb are considered to be visually obtrusive and as such will shield views previously enjoyed by tourists from public places. This loss of public views and their containment for the exclusive enjoyment of individuals is contrary to Council=s policy of promoting the Shire=s landscape for the benefit of the community generally.

5. Approval of the earthen wall is not in the public interest, as:

(a) The earth banks are unsightly, especially in an Environmental Protection (Landscape Conservation) zone which seeks to identify, protect and retain scenic values and recognise the value of rural scenic landscape.

(b) The earth banks adversely affect the scenic qualities of the area.

(c) The earth banks constitute a traffic hazard and a danger to both vehicular traffic and pedestrians using the narrow road, as evidenced by a complaint dated 19 May 1997 which is annexed hereto and marked with the letter >Y=.

(d) The earth banks have a propensity to pollute local streams, especially in the Water Catchment zone which acts as a catchment for the Wingecarribee and Wollondilly Rivers and, eventually, Warragamba Dam, as well as the Cordeaux/Avon Dams System.

Condition of Refusal imposed having regard to matters listed for consideration under Section 90(r) of the EP&A Act.@

6 In response to these issues, Mr S B Austin QC, who with Mr P R Clay appears for the respondent, submits that development consent is not required for the construction of the mound since it is used for the purpose of agriculture, such use being an existing use of the land within the meaning of s 109 of the Act or alternatively is a use which may be carried out without consent over at least part of the land.

The Relevant Planning Controls

7 The land is subject to the Wingecarribee Local Environmental Plan 1989 (Athe LEP@). Part of the land (and thus part of the mound) is within a Special Uses (Water Catchment) 5(c) zone. The remaining part of the land (and thus the remaining part of the mound) is within an Environmental Protection (Landscape Conservation) 7(b) zone.

8 The aims of the LEP relevantly include the following (cl 2(2):

A(b) Ensure that growth and development in the Shire of Wingecarribee occur in a way which preserves existing environmental qualities and minimises adverse environmental impacts;

Y

(d) Protect the agricultural production potential of rural land and prevent fragmentation of viable agricultural holdings, particularly where land is designated as being of prime crop and pasture potential;

(e) Protect areas of high landscape value as well as both natural and man-made areas of conservation and recreation significance;

(f) Provide for the continued needs of tourism and to concurrently introduce measures to protect and preserve both the scenic qualities of prime agricultural land and those existing scenic and environmental features which are likely to promote tourism, including inland waterways and wetlands, lakes, escarpments and prominent mountain ranges;

Y

(p) Conserve the environmental heritage of the Shire of Wingecarribee.@

9 Clause 9 of the LEP prohibits the granting of consent to the carrying out of development on land to which the Plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.

10 The objective of the 5(c) zone is: Ato protect land which is designated as being part of a water catchment from incompatible land uses@. Development for the purposes of >agriculture= and >dwelling houses= (inter alia) may only be carried out with development consent.

11 The objectives of the 7(b) zone are relevantly:

A(a) to identify and protect areas of particular scenic value and to ensure the preservation of their cultural, heritage, aesthetic and environmental significance;

(b) to recognise the value of the rural scenic landscape to the local tourist economy;

(c) to permit development and land use activities which are compatible with the heritage and scenic qualities of the key cultural landscape;

Y@

Development for the purpose of >agriculture= may be carried out without development consent. Dwelling houses require development consent. Certain kinds of development associated with agriculture, however, Aplant nursaries@, Astables@ and Astock and sale yards@ require development consent.

12 Clause 16B of the LEP applies to development in zone 7(b). It provides:

A16B. The Council shall not grant consent to an application to carry out development on land within zone 7(b) unless it has taken into consideration the extent to which the carrying out of the proposed development will affect the heritage significance and visual quality of the land.@

The Mound=s Purpose

13 The assessment of the mound=s purpose will determine whether its construction requires development consent. There is no doubt that the mound is Adevelopment@ within the meaning of the word as defined in s 4 of the Act.

14 Evidence on this issue was given for the applicant by Mr AD Smith, an urban planner; Mr NF Mackay, a cattle farmer from the Southern Highlands area; and Mr WP Cowman, an agricultural consultant.

15 Further evidence on this issue was given for the respondent by Mr Neil Ingham, a consultant town planner; Mr SJ Buchanan, the manager of an architectural, town planning and environmental consultancy; Mr AJC Sendall, the principal of a property management and rural advisory services business; and Mr J Knox, the respondent=s husband.

16 The evidence given for the applicant on this question may be summarised as follows:

(1) The construction of an earth mound such as this for the purpose of a windbreak is an irregular agricultural practice. The mound at AMarracloon@ is the only such structure in the Southern Highlands (Mr Cowman and Mr Mackay).

(2) The mound is ineffective as a windbreak, and may in fact create wind turbulence on its lee side (Mr Mackay).

(3) The mound affords privacy to the respondent and Mr Knox (Mr Cowman and Mr Smith); and also provided for convenient disposal of the quantity of earth uncovered after the construction of the respondent=s dam and excavation for her dwelling house (Mr Cowman).

17 The evidence given for the respondent on this question may be summarised as follows:

(1) The mound operates as an effective wind break (Mr Sendall, Mr Ingham and Mr Knox); and has aided pasture growth on its lee side (Mr Sendall). Mr Sendall produced photographic evidence of cattle grazing in the area sheltered by the mound.

(2) A windbreak is necessary to shelter cattle on the property from south-westerly and westerly winds (Mr Sendall and Mr Knox).

(3) The mound serves the purpose of channelling excess water from Range Road onto the respondent=s property (Mr Ingham).

It was also suggested that there is one other mound in the Southern Highlands of similar dimensions to the subject mound.

18 In assessing the purpose of the mound, it is instructive to note that Mr Ingham indicates on page 2 of his report that the mound Ahas at least three purposes to it@. The purposes which he mentions are: i) a windbreak; ii) a visual screen which provides privacy and the opportunity for landscaping; and iii) the channelling of stormwater. Mr Buchanan also conceded in his oral evidence that the mound serves the dual purposes of providing privacy for the dwelling house and a windbreak.

19 Mr Ingham=s intimation that the mound may have further purposes than those he mentions is, perhaps, a reference to the convenience provided by the mound for the disposal of the earth excavated in the construction of the dam on the subject property, and the excavation in preparation for the construction of the dwelling house.

20 The importance to the respondent of categorising the mound=s purpose as agricultural differs for the two zones in which the mound is situated. In the Special Uses (Water Catchment) 5(c) zone, s 109(1) of the Act prima facie obviates the need for development consent to be obtained if the particular use to which the land is put exists prior to the relevant planning instrument coming into force. It is Mr Austin=s submission that for that portion of the mound in the Special Uses (Water Catchment) 5(c) zone, the fact that the mound serves an agricultural purpose operates to bring it under the protection of s 109(1) of the Act because that purpose is an existing use of the land, and the mound therefore does not require development consent.

21 Mr Austin contends that for that portion of the mound in the Environmental Protection (Landscape Conservation) 7(b) zone, the fact that agricultural work is permissible without development consent in that zone indicates that development consent for this portion of the mound is also not required.

22 If it is held that the mound serves an agricultural purpose, it follows that development consent is not required therefor. However, Mr D P Wilson, for the applicant, submits that if a work has two purposes, neither of which is subservient to the other, and one of those purposes requires development consent while the other does not, then the work will require development consent. In particular, development consent is required for development undertaken for the purposes of providing privacy to the dwelling house. In support of this proposition Mr Wilson cites Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157. In that case Glass JA at 161 held as follows:

AWhere the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant@.

Glass JA follows this formulation in the following terms: Aif any one purpose operat[es] in a way which is independent and not merely incidental@ to the other(s), and that purpose is prohibited, it is of no consequence that that prohibited purpose may be overshadowed by the other purpose(s) (at 161).

23 Mr Austin, in reply to this submission, contends that the provision of privacy is axiomatic in the construction of a windbreak. The inference is that the provision of privacy in this instance is a purpose which subserves and is merely incidental to the mound=s agricultural purpose.

24 It is apparent, however, that the purpose of providing privacy to the dwelling house does not subserve the mound=s agricultural purpose, nor is it merely incidental to that purpose. Rather, it is a separate purpose. In CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270, Hope JA held that an activity can have a Adouble character@ of agriculture and non-agriculture (at 272). It seems clear to me that the mound exists to serve several purposes, and that the mound serves as an effective windbreak, as a visual screen and an effective means of channelling stormwater. These are the three purposes identified by Mr Ingham. In the present matter a relevant question which arises from that conclusion is whether the various purposes of the mound fit into more than one category of use. The answer to that question must be in the affirmative.

25 Since at least one of the separate purposes of the mound requires development consent being for a purpose other than agriculture, it follows that development consent for the mound is required in both the Special Uses (Water Catchment) 5(c) zone, despite the protection afforded by s 109(1) of the Act for the continuance of the agricultural use, and in the Environmental Protection (Landscape Conservation) 7(b) zone, despite the fact that in the latter zone the undertaking of agricultural work may be carried out without such consent.

Should Development Consent be Granted?

26 Having found that the mound requires development consent, the question which now arises is whether that consent should be granted by the Court. Two principal merit issues arise in the determination of this question, the first of which is the mound=s visual impact on the Southern Highlands= landscape and on the previously available views from Range Road. The second issue is the mound=s impact on the traffic conditions of Range Road.

27 Evidence on these questions was given for the applicant by Dr R J Lamb, a senior lecturer in architecture and heritage conservation at the University of Sydney; Mr J E Sherborne, a Wingecarribee Shire councillor and local school teacher; Mr G J Barnsley, a local solicitor and chairman of the Bradman Foundation; Ms K A Murray, a local resident; Mr C Hallam, a traffic engineer; Mr Smith and Mr Mackay.

28 Evidence on these questions was given for the respondent by Miss N W Sonter; Mr M J Bridgeman, a traffic planning and engineering consultant; Mr Ingham; Mr Buchanan and Mr Knox.

29 The evidence given for the applicant on these questions may be summarised as follows:

(1) The mound is alien to the Southern Highlands= landscape (Dr Lamb and Mr Smith).

(2) Range Road has a low visual absorption capacity for such a development due to the openness of its view and the proximity of the mound to the road (Dr Lamb). It creates a Aclaustrophobic effect@

along Range Road (Mr Barnsley and Mr Sherborne).

(3) The views from Range Road are some of the rarest (Mr Smith) and most impressive in the Southern Highlands (Ms Murray, Mr Mackay and Mr Barnsley). Dr Lamb (on page 5 of his report) opines that the views are Aindispensable@ to the Range Road visual experience.

(4) Range Road is a likely tourist route, and the mound Acompletely expunges@ the existing view (Dr Lamb).

(5) The priority for Range Road regarding traffic safety is not to exacerbate existing dangers, and while the mound does not restrict sight distance at the critical point to below the minimum recommendation in the RTA=s Road Design Guide, it does reduce it to a level below the intermediate recommendation of that Guide. Moreover, the Guide is based on the assumption of a two lane road. The mound constitutes an exacerbation of the danger to traffic and pedestrians presented by the single lane width of Range Road (Mr Hallam)

30 The evidence given for the applicant on these questions may be summarised as follows:

(1) The Southern Highlands= landscape is the result of human intervention in many respects, and within this context the mound is consistent with that landscape (Mr Ingham and Mr Buchanan).

(2) Earth mounds are not uncommon in rural landscapes (Miss Sonter).

(3) Range Road is not a tourist road (Mr Ingham); and there is little opportunity for recreational activities such as cycling or horse riding along it (Mr Knox).

(4) There is little opportunity to experience the views whilst driving along Range Road, as there is no opportunity to park a vehicle off the road, and the views are only in fact passing and intermittent whilst travelling in a vehicle (Mr Buchanan).

(5) The mound can be overlooked in certain parts (Miss Sonter and Mr Buchanan).

(6) The road is of poor quality whether or not the mound is in place. The mound=s existence does not either add or detract from the standard of road safety on Range Road (Mr Bridgeman).

31 Of the expert evidence offered on these matters I prefer that of Dr Lamb and Mr Hallam, both of whom are highly qualified and experienced in their respective fields. In particular, the opinions of Dr Lamb emphasise the non-conformity of the mound with the objectives of the planning controls described in paras 8-12 of this judgment and to which I now turn.

32 The relevant question is whether the mound is compatible with the aims of the LEP and those of zone 7(b). Clause 2(2)(b) of the LEP requires development to preserve existing environmental qualities and to minimise environmental impact; cl 2(2)(e) requires development to protect areas of conservation and recreation significance; cl 2(2)(f) requires development to provide for the continuing needs of tourism, and to protect and preserve both the scenic quality of agricultural land and also the existing scenic environmental features likely to promote tourism; and cl 2(2)(p) requires development to conserve the environmental heritage of the Wingecarribee Shire.

33 The objectives of zone 7(b) para (a) require the identification and protection of areas of particular scenic value and the preservation of those areas of cultural, heritage, aesthetic and environmental significance; para (b) requires development to recognise the value of the rural landscape to tourism; and para (c) requires development to be compatible with the heritage and scenic qualities of the key cultural landscape.

34 Clause 16B of the LEP requires the Council, when assessing whether development consent should be granted in zone 7(b), to afford consideration to the effect of development on the visual quality of the land.

35 In determining the question of the mound=s compatibility with the general objectives of the LEP and the specific objectives of zone 7(b), it is pertinent to refer to the decision in Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185. Two conclusions of Clarke JA in that case assume importance in the context of submissions made on behalf of the respondent in this matter. The first is his Honour=s rejection (at 192) of the contention on behalf of the council that owing to the fact that the conflict of the development with the objectives of the LEP was only for a temporary period and was thereafter only marginal, the development was more likely to be compatible with the objectives of the LEP. This is important in the context of Mr Austin=s submission on behalf of the respondent that the mound will be obscured by ALeightons Green@ c. leylandii plantings within two to three years.

36 The second holding of Clarke JA which assumes importance to the present matter is his conclusion as follows:

AWhatever is their precise ambit the paragraphs [of the LEP] do not permit an antipathetic development@ (193).

This approach indicates that regardless of the respondent and Mr Knox=s attempts to minimise the environmental impact of the mound, if the mound is found to be antipathetic to the above mentioned objectives of the LEP and zone 7(b), development consent should not be granted.

37 The conclusion to which I am drawn is that the mound does not preserve existing environmental qualities. It has an adverse impact on the visual quality of the land and is as described by Dr Lamb alien to the landscape of the Southern Highlands. Range Road is an area of particular scenic value and the existence of the mound detracts from that value, and hence the mound is antipathetic to the objectives outlined in cl 2(2)(b) of the LEP, to the objectives of zone 7(b) and to the test propounded by cl 16B. In this conclusion I am reinforced by what I saw on the view which was conducted in the presence of the parties and their representatives, upon which I am entitled to rely (s 54 of the Evidence Act 1995).

38 Neither does the mound provide for the continued needs of tourism in the Southern Highlands. Simply because a road does not have specific provision for tourists by way of road-side amenities and the like does not resolve the question of whether that road is a tourist attraction, or is of conservation or recreation significance, as pointed out by Mr Smith in his evidence. There is undoubtedly attraction for tourists and local residents in the rustic feel of Range Road and its panoramic views. The north easterly view on some days reaches as far as Sydney, according to Mr Mackay. The construction of the mound detracts from the scenic quality of Range Road and obscures the view from anyone proceeding along that road. In this way the development can be seen as antipathetic to the objectives outlined in cl 2(2)(e) and (f) of the LEP, the objectives of para (b) of zone 7(b) and the requirements of cl 16B.

39 A further consideration relevant to the objectives set out in cl 2(2)(e) and (f) of the LEP and para (b) of zone 7(b) is that of the impact of the mound on traffic safety along Range Road. Having found the evidence of Mr Hallam to be persuasive, I also find his conclusions persuasive. This factor alone would not necessitate the removal of the mound in its entirety, but it adds further weight to the conflict of the mound with the objectives of the LEP and the objectives of zone 7(b).

Discretionary Considerations

40 Section 124(1) of the Act provides that when a breach of the Act is proven or a breach will be committed but for the Court=s intervention, the Court Amay make such order as it thinks fit to remedy or restrain the breach@. That subsection, in addition to the normal extant discretion when deciding whether to grant equitable relief, furnishes the court with a discretion as to whether to grant or withhold the relief sought by the applicant, notwithstanding my above findings.

41 In Warringah SC v Sedevcic (1987) 10 NSWLR 335; 63 LGRA 361, Kirby P mentions nine factors which may guide the Court in the exercise of its discretion. It is apposite to examine those factors, in so far as they are relevant to the present application. This is an approach which has been adopted in this Court previously; see, for example, Wilson v Iron Gates Pty Ltd (Land and Environment Court of NSW, Stein J, 2 December 1996, unreported).

42 Kirby P initially highlights the width of the discretion of the court under s 124 and the fact that it is unfettered by either statute or case law (at 339).

Kirby P then examines some further considerations relevant to the exercise of the discretion, being whether the breach which is the subject of complaint is purely technical in nature; whether there was delay by the applicant in making the application for relief; or whether the breach had a positive effect on the environment (at 339). In the present case the respondent=s breach could not be described as merely technical in nature; there is no issue of delay by the applicant; and the preceding section of this judgment indicates that the final of the matters mentioned by Kirby P does not assist the respondent.

43 The matter to which Kirby P refers under the fourth guideline in Sedevcic is the need to ensure the equality of individuals before the courts in matters where a public duty is sought to be enforced. His Honour also held that the s 124 discretion should give efficacy to the desire to secure the Aintegrated and co-ordinated nature of planning law@ where parliament has indicated such an intent (at 340). He also highlights the possibility of damage being done to the environment which is antithetical to the operation of the relevant planning laws as a relevant consideration when exercising the discretion. I consider that the argument of the respondent to have the discretion exercised in her favour fails on each of the grounds mentioned by Kirby P under the fourth guideline in Sedevcic.

44 Under his fifth guideline Kirby P expands upon his previous guideline and states:

ABut the obvious intention of the [Environmental Planning and Assessment] Act is that, normally, those concerned in development and use of the environment will comply with the terms of the legislation. Otherwise, if unlawful exceptions and exemptions became a frequent occurrence, condoned by the exercise of the discretion under s 124, the equal and orderly enforcement of the Act could be undermined@. (at 340)

45 It is important to understand that the duty sought to be enforced by the applicant is a public duty. The respondent has failed to observe a relevant planning instrument. The exercise of the Court=s discretion in favour of the respondent in this instance would undermine the objective of encouraging members of the community to observe relevant planning laws, an objective which is clearly in the public interest; see The Hon Justice Paul L Stein AM, >Discretion-Private Interests and Public Law=, Series of Seminars on Judicial Review and the Public Interest, The New South Wales Chapter of the Australian Institute of Administrative Law, pp 4-9.

46 Although principally concerned with the issue of standing, also relevant to this issue is the judgment of Street CJ in F Hannan v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306. The Chief Justice held that in the exercise of the Court=s discretion under s 124, regard must be had to the objects of the Act as outlined in s 5 (at 313). I do not consider that the exercise of the Court=s discretion in favour of the respondent in this instance would advance those objectives.

47 Kirby P=s sixth guideline raises the question of who it is that is attempting to enforce the relevant planning instrument. He states that it may militate against the exercise of the discretion in favour of a respondent if the application to enforce the Act is made by a council or the Attorney-General (at 340).

48 The seventh guideline relevant to the exercise of the Court=s discretion, according to Kirby P in Sedevcic, is in instances where Athe relief is sought against >static= development@ (at 340). If the development is static and can only be removed at substantial cost, these are factors which may encourage the Court to exercise the discretion in favour of the respondent.

49 The initial issue which arises from this item is whether the earth mound qualifies as >static= development. Kirby P=s example of static development is of a building, and Stein J was not required to answer the question of whether a road qualified as >static= development in Wilson v Iron Gates Pty Ltd (Land and Environment Court of NSW, Stein J, 2 December 1996, unreported at 16). In the final result I need not answer the question of whether an earth mound qualifies as >static= development in this matter, although it probably is.

50 Kirby P states that the consideration of whether a development is >static= development Adoes not amount to a hard and fast exception to the discretion@ (at 340), and it is only one factor of many which is worthy of consideration. I have considered the difficulty of removing the mound. It does not alter my view of the manner in which the Court=s discretion should be exercised in this matter.

51 Kirby P refers under guideline eight to the ability of the Court to Asoften@ an injustice which may otherwise be perpetrated in an individual case by the application of the rules or the law (at 341). This can be achieved by postponing the effect of injunctive relief. For the aforementioned reasons, I do not consider that the removal of the mound will produce an unjust result to the respondent if its removal is postponed for a period.

52 I am persuaded by the argument of Mr Wilson that the Court should not permit development which is not accordance with relevant planning laws merely because that development may be obscured by landscaping or by the planting of trees. I note that the applicant does not seek any relief in respect of the ALeightons Green@ c. leylandii plantings, and hence any issues arising from those plantings are not addressed in this judgment.

53 Moreover, in regard to this issue, there is evidence from Dr Lamb, albeit contradicted by Miss Sonter, that the lower branches of the ALeightons Green@ c. leylandii planted by the respondent may die or drop off over time, which would reduce branch density among the lower branches, and thus expose the mound to those who use Range Road.

54 The public interest in having planning instruments observed; the adverse effect of the continued existence of the mound on the landscape of the Southern Highlands along Range Road; the mound=s blocking of an important and rare view; and its exacerbation of traffic problems on an already substandard road all direct me toward the conclusion that the relief claimed by the applicant should be granted. The contention that the Court=s discretion should be exercised in favour of the respondent owing to the planting of ALeightons Green@ c. leylandii and the possible obscuring of the mound thereby, or on any other ground, must be rejected. The mound is antipathetic to the objectives of the LEP and to the objectives of zone 7(b), and there is nothing in the respondent=s case to indicate that the discretion under s 124 should be exercised in her favour.

Orders

In Matter No 10316/97

(1) Appeal dismissed.

In Matter No 40128/97

(1) Declare that the provision of an earth mound on Lot 3 of DP 860819 along its frontage to Range Road, Glenquarry is unlawful in the absence of development consent therefor.

(2) Declare that no development consent has been granted for the provision of an earth mound on Lot 3 of DP 860819 along its frontage to Range Road, Glenquarry.

(3) Order that the respondent remove the earth mound on Lot 3 in DP 860819 along its frontage to Range Road, Glenquarry within 60 days of this order.

(4) Reserve liberty to apply.

(5) Costs reserved.

(6) The exhibits may be returned.