Ku-ring-gai Municipal Council v Ebeid

[2003] NSWLEC 139

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Land and Environment Court

of New South Wales

CITATION:

Ku-ring-gai Municipal Council v Ebeid [2003] NSWLEC 139

PARTIES:

PROSECUTOR
Ku-ring-gai Municipal Council

DEFENDANT
Michael Maged Ebeid

FILE NUMBER(S):

50015 of 2003

CORAM:

Cowdroy J

KEY ISSUES:

Practice and Procedure :- application to strike out class 5 proceedings - whether charge is bound to fail - issues of fact and law arising

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 76A(1), 96(2)(a), s 125(1)

CASES CITED:

Dey v Victorian Railways Commissioners (1948-1949) 78 CLR 62;
General Steel Industries Inc. v Commissioner For Railways (NSW) and Ors (1964) 112 CLR 125;
Jago v The District Court of New South Wales and Others (1989) 168 CLR 23;
Logwon Pty Limited v Warringah Shire Council (1993) 33 NSWLR 13;
Rogers v The Queen (1994) 181 CLR 251;
Tynan and Others v Meharg and Newcastle City Council (1998) 101 LGERA 255;
Walton v Gardiner; Walton v Herron; Walton v Gill (1992-1993) 177 CLR 378;
Woolmington v The Director of Public Prosecutions [1935] AC 462

DATES OF HEARING:

12/06/2003

DATE OF JUDGMENT:

06/19/2003

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr M. Wright (Barrister)

SOLICITORS
Deacons Lawyers

DEFENDANT
Mr P. Clay (Barrister)

SOLICITORS
McKees Solicitors

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50015 of 2003

Cowdroy J

19 June 2003

Ku-ring-gai Municipal Council

Prosecutor
v

Michael Maged Ebeid

Defendant

Judgment

Facts

1 By notice of motion filed on 16 April 2003 the defendant seeks an order that the summons issued in these proceedings be dismissed.

2 The summons which was filed on 5 March 2003 seeks an order that the defendant answer a charge that between 6 September 2002 and 22 October 2002 he committed an offence under s 125(1) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) in that he caused development to be carried out at 50 Ada Avenue, Wahroonga without obtaining development consent, as required pursuant to the Ku-ring-gai Planning Scheme Ordinance. Section 76A(1) of the EP&A Act forbids development to be carried out if an environmental planning instrument requires consent.

3 The charge has arisen because the defendant constructed a swimming pool (“the pool”) otherwise than in accordance with a development consent granted to the defendant by the prosecutor on 6 September 2002 (“the consent”). The consent authorised a proposed development for alterations and additions to a dwelling “plus swimming pool”. One of the conditions to the consent provided as follows:-

The development to be in accordance with Development Application No 930/02 and Development Application plans prepared by Allan Hobbs , reference number SAM1/2002 – SAM62002, SAM8/2002 , dated May 2002 and lodged with Council on 8 July 2002 .

The plans which accompany the consent show that the pool is to be constructed parallel to the eastern boundary of 50 Ada Avenue, Wahroonga.

4 Section 76A(1) of the EP&A Act provides:-

s 76A Development that needs consent

(1) General
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, and

(b) the development is carried out in accordance with the consent and the instrument.

5 Section 125 of the EP&A Act makes it an offence against such Act if anything is done under the Act which is forbidden to be done. The prosecutor alleges that the pool has been constructed in a location which does not accord with the development application plans referred to in the consent. The pool was actually built perpendicular and not parallel to the eastern boundary of such property. As a result, a breach of the requirements of s 76A(1) of the EP&A Act is alleged.

The Defendant’s submissions

6 The defendant submits that the pool was constructed pursuant to the consent which was current at the date of the alleged offence. The consent will not expire until the 7 September 2004. The defendant submits that the charge alleges that the defendant carried out development for which no development consent had been obtained or was in force as required by the provisions of s 76A(1) of the EP&A Act. The charge does not allege that development was carried out otherwise than in accordance with the consent. The defendant submits that any failure to comply with conditions of a consent cannot be equated with the failure to obtain consent as alleged in the charge.

7 The defendant acknowledges that the pool may have been constructed in breach of a condition of the consent because it was not constructed in the location identified in the relevant plans. The defendant has referred the Court to the decision in Tynan and Others v Meharg and Newcastle City Council (1998) 101 LGERA 255 in which the New South Wales Court of Appeal held that a breach of a condition of a development consent did not invalidate the consent.

8 The defendant therefore submits that because the prosecutor will be unable to prove that the defendant did not have development consent, the proceedings must fail and the summons should be dismissed as an abuse of process.

The Prosecutor’s submissions

9 The prosector submits that the defendant essentially relies upon a factual matter which should be determined at the trial. The prosecutor submits that the ultimate decision must abide by the factual inquiry, and relies upon (as does the defendant) the observations of Viscount Sankey L.C. in Woolmington v The Director of Public Prosecutions [1935] AC 462 at p 481.

10 The prosecutor submits that the consent did not authorise the construction of the pool in the current location. Although the defendant claims that he could have been granted a modification of the consent pursuant to s 96(2)(a) of the EP&A Act to permit the pool to be constructed in its current position, the prosecutor says that only the “consent authority” can determine such application. Accordingly, it is irrelevant that the defendant believes that the “consent authority” would be so satisfied. Accordingly, the prosecutor alleges that the works carried out by the defendant are not “substantially the same development as the development for which consent was originally granted”, to justify a modification application under s 96(2)(a) of the EP&A Act. The prosecutor therefore submits that a separate development application was required by the defendant, and that a breach as alleged in the summons has prima facie been committed by the defendant.

11 As to Tynan, the prosecutor submits that the primary issue in such decision was whether the trial judge’s discretion had miscarried and that the authority is irrelevant.

Findings

12 The defendant’s motion is made pursuant to the inherent power of the Court, as a superior Court of record. The extent of such power was considered by the New South Wales Court of Appeal in Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13. In Rogers v The Queen (1994) 181 CLR 251 Mason CJ at p 255 referred to the inherent power of the Court in the context of the grant of a stay to prevent an abuse of process of the Court. In the absence of any applicable provision under the Land and Environment Court Rules 1996 relating to summary dismissal of a summons, the Court will apply established legal principles.

13 The defendant’s motion assumes that the grant of the consent is a complete answer to the charge contained in the summons. However, it is apparent that other considerations are raised whether the breach of a condition of a consent results in a finding that the defendant’s conduct was unlawful. Such consideration gives rise to issues of fact and of law. In Dey v Victorian Railways Commissioners (1948-1949) 78 CLR 62 Dixon J at p 91 said:-

The application is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.

Such observations were adopted by Barwick CJ in General Steel Industries Inc. v Commissioner For Railways (NSW) and Others (1964) 112 CLR 125 at p 130. After citing part of the observations of Latham CJ in Dey , Barwick CJ continued:-

…in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.

14 In criminal cases applications have been made under the inherent power of the Court to prevent an abuse of its process: see Jago v The District Court of New South Wales and Others (1989) 168 CLR 23 at p 27 which was considered in Walton v Gardiner; Walton v Herron; Walton v Gill (1992-1993) 177 CLR 378 at pp 393.

15 Although the principles referred to in Dey and General Steel Industries Inc. related to civil proceedings, there is no reason why such principles are not applicable to class 5 proceedings. It follows that the issues of fact and of law arising in this prosecution should be determined at a hearing. These proceedings are not demonstrably groundless.

16 Tynan does not assist the defendant since it relates to a discretionary issue which cannot arise in this application although it may become relevant at a hearing. It follows that the defendant’s motion must be dismissed.

Orders

17 The Court orders:-

1. The defendant’s notice of motion be dismissed;

2. The defendant pay the prosecutor’s costs.