Mosman M.C. v Sahade

[1999] NSWLEC 44

Land and Environment Court

of New South Wales

CITATION:

Mosman M.C. -V- Sahade [1999] NSWLEC 44

PARTIES

Applicant:
Mosman Municipal Council

Respondent:
Anthony Victor Sahade

NUMBER:

40171 of 1998

CORAM:

Talbot J

KEY ISSUES:

:-

Development consent - breach of conditions
Building approval - breach of conditions
Evidence - allegation obtained illegally - onus
Evidence - effect of respondent electing not to call evidence

LEGISLATION CITED:

Development consent - breach of conditions
Building approval - breach of conditions
Evidence - allegation obtained illegally - onus
Evidence - effect of respondent electing not to call evidence

DATES OF HEARING:

03/01/1999; 03/02/1999

DATE OF JUDGMENT DELIVERY:

03/05/1999

LEGAL REPRESENTATIVES:

Applicant:
Ms S Duggan (Barrister)

Solicitors:
Hill Thompson Sullivan

Respondent:
Mr M Sahade (Barrister)

Solicitors:
n/a

JUDGMENT:

IN THE LAND AND MATTER No. 40171 of 1998
ENVIRONMENT COURT CORAM: Talbot J
OF NEW SOUTH WALES DECISION DATE: 5 March 1999

MOSMAN MUNICIPAL COUNCIL
Applicant


v

ANTHONY VICTOR SAHADE
Respondent

REASONS FOR JUDGMENT

1. The council alleges that the respondent is operating or permitting or suffering to be operated a car wash and café at 612 Military Road, Mosman in breach of the conditions of development consent and building approval granted by the council and seeks a declaration to that effect with consequential orders.

2. The case has been conducted by the respondent on the basis that the council is required to prove its case and that in so doing it has not been shown that the respondent is carrying on the operations. Notwithstanding a concession by the respondent that he is the owner of the premises and prima facie evidence from council officers to that effect, the respondent elected not to give evidence and instead made a submission that, on the evidence given, judgment for the applicant could not be supported.

3. Only one of the council witnesses was required for cross examination.

Objections to evidence

4. The respondent objected to the council relying on a number of affidavits that were filed otherwise than in accordance with directions made by the Registrar or alternatively, sought an adjournment to enable the evidence to be considered and proper instructions to be taken. After reading the affidavits and hearing submissions from both parties, the Court considered that the material in the affidavits filed out of time was such that there was no prejudice which could not be readily dealt with by allowing oral evidence in reply.

5. It was also asserted from the bar table that certain evidence was obtained by council witnesses entering the subject property illegally. The respondent made no attempt to support this allegation with evidence of any kind. The onus is on the party seeking exclusion of evidence to prove that it was improperly or illegally obtained. It is only after that onus is met that the other party is required to satisfy the Court that the desirability of admitting such evidence outweighs the un-desirability of admitting it as provided in s 138 of the Evidence Act. The respondent’s objection to the admission of the evidence on this ground was rejected.

The status of the respondent

6. The primary contention on the part of the respondent is that he is not carrying on the business of the car wash and café and that the council’s failure to investigate the true identity of the operator of the business should lead to dismissal of the application.

7. The council relies on the provisions of s 697 of the Local Government Act which provides that proof of the fact that a defendant is, or at any relevant time was, the owner or occupier of any land in question is not required until evidence is given to the contrary.

8. Some attempt was made in cross examination of the council witness to establish that a large sign and the wording on clothing of employees referring to Crystal Car Wash Café should have alerted the council that the entity running the business was someone other than the respondent, at least to the extent of making further inquiries.

9. The respondent was in Court during the hearing and no explanation was offered as a reason for his failure to give evidence except that, according to his counsel, he was maintaining his right to silence.

10. Apart from any inference, there is direct evidence from the council’s Building Surveyor/Planner that the respondent is the registered proprietor of the property. This evidence is not disputed and accordingly, in the absence of any evidence to the contrary, the Court is entitled to infer that the business being carried on at the property is either under his control or is being conducted with his concurrence. The circumstance that the respondent, while asserting that the business is carried on by someone other than himself, might have proved that fact had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference that he is responsible for the activity on the land ( Jones v Dunkel (1958-1959) 101 CLR 298).

11. The respondent’s counsel has made much of the claim that the council has not proved the respondent is carrying out the operations of the car wash and the café. There is no evidence sufficient to support a contention that any other person is carrying on the business. The council is not under any obligation to make further inquiries in that respect merely because a particular business sign is displayed on the premises or because employees are wearing a uniform bearing a name other than that of the respondent.

12. The established facts in relation to the respondent’s relationship with the property and hence the operations conducted on it are as follows:-

1. The respondent was the applicant for development consent.

2. The notice of determination of development application was addressed to the respondent.

3. The respondent was the applicant for building approval.

4. The approval of the building application under the provisions of s 378 of the Local Government Act 1993 was notified to the respondent.

5. On 24 August 1998, following an inspection carried out on 14 August 1998, a letter was addressed by the council to the respondent setting out details of matters which it was alleged remained outstanding and required his urgent attention.

6. There is no evidence by the respondent or any other person to the effect that the respondent has at any time disavowed the responsibility for complying with the council’s requirements.

7. The council’s building surveyor/planner conferred with the respondent on the premises when the respondent confirmed that he was aware of the allegations of breach. Although it was suggested that the respondent considered there was no breach, there is no evidence of any claim by him that compliance was the responsibility of a third person.

8. In addition to evidence of council witnesses and the effect of s 697 of the Local Government Act 1993 the respondent has expressly conceded that he is the owner of the premises.

The evidence

(a) The Relevant Conditions of Consent and Approval
13. By notice pursuant to s 92 of the Environmental Planning and Assessment Act dated 13 May 1997, the council informed the respondent that his development application had been determined by granting of consent for redevelopment of “existing service station site to carwash cafeteria, subject to the conditions specified” in the notice. The following conditions are relevant to the present proceedings:-

1. The development is to be carried out in accordance with the submitted plans, reference No. 9611.a1 dated 18 November, 1996, prepared by John Dimopoulos, Architect, and Landscape Plan Issue A dated 10 December, 1996, prepared by Pots and Villas Landscape Architects, and Stormwater Concept Plan No. 9641-H1 dated 18 November, 1996, prepared by D.Wolfe, Engineer, as amended, with respect to entry/exit on Sketch Plan No. A01/1A, and excepting any variations required by conditions of this consent.

2. The following amendments be made to the proposed development and included on the plans submitted with the building application to the satisfaction of Council’s Director Environment and Planning to ensure appropriate consideration of existing heritage items on the adjoining properties:-
…
i. The existing boundary wall on the eastern boundary with Boronia shall be raised in height to approximately 1800mm above the ground level of the Boronia garden for a distance of 18 metres behind the general line of the front of the front of the new building to screen the heritage site from the commercial activity. Details of proposed finishes and costs are to be submitted for consideration with the application to build.

…

9. The café is to be used by carwash patrons in conjunction with, and ancillary to, the approved carwash in accordance with the application as submitted.

10. The floorspace occupied by the customer seating area is not to exceed that shown on the approved plans and contained within the proposed café building. No outdoor seating is to be provided.

…

21. The discharge of any waste water to or placement of matter or waste water in a position which is likely to enter Council’s stormwater system is prohibited.

22. All waste water must to be discharged (sic) to the sewerage system and must be the subject of a Sydney Water Trade Waste Agreement. A copy of the Agreement must accompany the application to build.

…

27. The Stormwater Concept plan submitted is satisfactory in principle with respect to Council’s engineering requirements. Building Approval will only be issued upon submission of a design in accordance with Council’s Policy for On-site Detention and to the satisfaction of the Director Environment and Planning. A positive covenant shall be placed on the property title advising of the existence of an on-site detention system and that it needs to be maintained in working order. Such covenant shall be prepared and registered on the property title to the satisfaction of Council’s Solicitors at the applicant’s expense.

14. Building Application No. 269/97 was approved on 14 October 1997. The following conditions remain relevant to the proceedings:-

11. No person shall use or occupy the building or portion which is the subject of this approval until it is completed in accordance with the approved plans and specifications and Council has given formal approval to occupy or use the building or portion.

…

16. All conditions of Council’s Development Consent No. 392/96 dated 13 May, 1997, shall be complied with.

…

29. The vehicular access point from Military Road is to be restricted for use as entry only, the vehicular access point from Cowles Road is to be restricted for use as exit only, and vehicular usage of the site is to operate in a one-way direction (anti-clockwise) from the access point on Military Road until the egress point onto Cowles Road.

Signs in this regard are to be designed in consultation with Council’s Manager Assets and Services and placed to the satisfaction of Council’s Director Environment and Planning prior to occupancy.

…

51. The existing boundary wall on the eastern boundary with “Boronia” shall be raised in height to approximately 1800mm above the ground level of the “Boronia” garden for a distance of 18 metres behind the general line of the front of the new building to screen the heritage site from the commercial activity. Sandstone blocks are to be used to match the existing wall, and samples of stone showing tooling work are to be submitted for consideration with at least three (3) quotes. Details of proposed finishes and costs are to be finalised in consultation with Council prior to the release of approved building plans.

(b) Vehicular Access
15. Sketch plan A01/1A had the effect of restricting entry to the premises to a single point off Military Road so that vehicles pass through the property in an anti-clockwise direction and exit into Cowles Road. The approved crossing design was the result of negotiations between the RTA and council to ensure a one way traffic flow on the site. Inspection by council officers show that the vehicular crossing for the property at Military Road is between twelve metres and nine metres wide which will allow vehicles to enter and exit from Military Road.

16. The failure of the respondent to construct the vehicular crossing in accordance with the approved plans contrary to condition 1 of the development consent also gives rise the alleged breach of condition 29 of the building approval.

17. The election by the respondent not to give evidence means that the Court does not have the benefit of any explanation for the non-compliance. Furthermore, there is no contraversion to the applicant’s evidence.

(c) Outdoor Seating and Unauthorised Use of the Café
18. Tables and chairs erected beyond the confines of the café building were observed by the council’s building surveyor/planner on 14 August 1998 and 1 September 1998 and by another planner on 23 October 1998 and 27 October 1998. On the latter dates the planner gave evidence that she was able to purchase a cup of coffee notwithstanding she did not have a car wash. Photographs taken on 3 September 1998 show that a number of tables and chairs with umbrellas are set on the driveway apron adjacent to the drying area outside the café building.

19. The Court is satisfied that outdoor seating has been provided contrary to condition 10 of the development consent.

20. Apart from obvious difficulties with the construction of condition 9 which does not, in the Court’s view, necessarily dictate use of the café solely by car wash patrons as contended for the council, the breaches alleged in regard to serving cups of coffee are so inconsequential and unsupported as a continuing pattern of behaviour that no order should be made in respect of the alleged breach of condition 9.

(d) The Discharge of Waste Water
21. On 14 August 1998 the applicant’s building surveyor/planner attended the property and observed that waste water was entering council’s stormwater drainage system from the following sources:-

· Water was being squeezed from drying cloths by staff directly onto the drying area;

· Vehicles being driven out of the bunded rinse area were discharging large volumes of water onto the drying area;

· The sprays used in the rinse section of the carwash were spraying soapy water beyond the bunded area and onto the drying area.

22. He also observed on 1 September 1998 that waste water was leaving the property and entering council’s stormwater drainage system which leads to Middle Harbour.

23. On 2 September 1998 council’s Environmental Officer observed water from the car washing process entering the stormwater drain in Cowles Road adjacent to the property. Three samples of waste water leaving the property were taken at the following locations:-

Sample A - Water in stormwater drain in Cowles Road outside 91 Cowles Road.

Sample B - Water from stormwater outlet adjacent to the property in Cowles Road.

Sample C - Water from the grated stormwater drain across the carwash exit to Cowles Road.

24. Another officer obtained a sample of water from the grated stormwater pit on the forecourt to the property.

25. Two further samples were taken on 7 October when waste water was observed leaving the property and entering council’s stormwater drain in Cowles Road.

26. A principal officer with the Environment Protection Authority told the Court that if the liquid in any of the samples had entered the waters of Middle Harbour or Sydney Harbour then that liquid would be likely to pollute those waters for the following reasons:-

(a) The phosphorous levels in all six samples are high and have the potential to cause an algal bloom. Algal blooms are visually intrusive and also affect oxygen levels in water which can lead to the death of fish, shellfish and/or oysters and the consumption of such fish, shellfish and oysters can cause illness and even death in humans.

(b) The MBAS results are also high in all six samples and could cause foaming of waters. Foaming of waters is visually intrusive and can affect the oxygen levels in water which has an adverse impact on marine life.

27. The council’s Environmental Officer also gave evidence that the stormwater drain in Cowles Road does drain to Middle Harbour.

28. During cross examination of the council’s building surveyor/planner a suggestion was raised to the effect that an incision had been made in a concrete wall or bund around the rinse area to permit the redirection of flow of water from the drying area away from the stormwater pit back into the rinse area for treatment prior to discharge to the sewer. The witness was not able to confirm the effect of the incision. In any event it is clear that any remedial action has not been successful as the evidence confirms the presence of run off in the stormwater drain in Cowles Road.

29. If works had been completed and were capable of remedying the breach of conditions 21 and 22 of the development consent, then it was always open for the respondent to call evidence to prove that fact. This was not done and accordingly the Court accepts the evidence of council witnesses that the breach is continuing.

(e) The Positive Covenant on the Title
30. There is no dispute to the assertion by the council’s building surveyor/planner that the positive covenant referred to in condition 27 of the development consent has not been registered on the property title.

(f) The Boundary Wall
31. There is no direct evidence about the ownership of the property Boronia referred to in condition 2(i) of the development consent and condition 51 of the building approval. Nevertheless there is evidence that council has resolved to contribute up to half the cost of additional sandstone coursing to the existing boundary wall between Boronia and the subject property required by the condition of development consent.

32. It is not disputed that the existing boundary wall has not been raised in height as required by the conditions.

33. The council’s building surveyor/planner agreed during cross examination that there are practical difficulties with building an extension on top of the existing boundary wall and that it may be necessary to demolish and rebuild it. He also agrees there are ongoing negotiations with the respondent and that three quotes required by council were being obtained.

34. However, there is no evidence of any agreement with council. Nor is there evidence of any application by the respondent to erect a new boundary wall or to amend the conditions of the development consent or building approval in order to accommodate any practical problems with implementing the conditions.

35. The extension of the height of the wall is not the subject of the development application or the application for building approval and accordingly, as a matter of construction, condition 11 of the building approval could not be applied to the failure of the respondent to comply with conditions 2(i) and 51 respectively. The council accepts that this is so and that a breach of these conditions will not lead to a prohibition against the use and occupation of the site. Notwithstanding this concession, the council seeks a formal order that the respondent remedy the breach of the conditions relating to the eastern boundary wall. It is appropriate in the circumstances that any order be framed to take account of what is clearly a joint enterprise between the respondent and the council.

(g) Use and Occupation

36. It is not contended by the respondent that the site is not being used and occupied for the purpose of a car wash and café. Indeed submissions have been made by counsel that there will be significant economic loss if the business is required to cease operations.

37. While ever the building or any portion of it has not been completed in accordance with the approved building plans and specifications, it cannot be used or occupied except contrary to the provisions of condition 11 of BA 269/97.

38. This condition also requires that council give formal approval as a prerequisite to any use or occupation. The latter requirement no doubt reflects a desire on the part of the council to be given the opportunity to check beforehand that the works have been carried out pursuant to the approved plans.

39. The approved development plans include the stormwater concept plan referred to in condition 1 of the development consent.

40. The approved building plans refer to hydraulic consultant drawings for all stormwater details. This reference is not explained by the evidence.

41. The approved development plans include Sketch Plan No. A01/1A which contains the amended plan of the proposed new entry from Military Road.

42. Although condition 29 of the building approval refers to the restrictions on access reflected by Sketch Plan No. A01/1A, the plan itself does not appear to be expressly the subject of the building approval.

43. The conditions of development consent are to be complied with as required by condition 16 of BA 269/97.

44. The effect of condition 16 of the building approval does not extend the meaning of “the approved plans” in condition 11 to the plans referred to in condition 1 of the development consent.

45. Accordingly in the Court’s view the stormwater concept plan and Sketch Plan No A01/1A are not part of the approved plans for the purpose of the building approval.

46. That does not mean that the building approval does not, by its conditions, require the stormwater and waste water to be disposed of in accordance with the development consent, nor that the entry and exit to the site be provided by any means other than as shown in the development plans approved by the council. It merely brings the Court to the conclusion that condition 11 of the building approval does not have effect to prohibit use or occupation of the site by reason of the building not being completed in accordance with the approved plans.

47. However, in the absence of evidence of the council giving its formal approval to occupy or use the building or portions of it, condition 11 prevents use and occupation.

48. Accordingly, the council is entitled to a declaration that the building is being occupied and used in contravention of condition 11 and an order effectively restraining the use until the formal approval has been obtained.

Conclusion

49. The Court is satisfied that it is appropriate to make orders restraining the respondent, his servants and agents from operating or permitting or suffering to be operated a car wash and café in breach of conditions of development consent No. 392/96 and building approval No. 269/97.

50. The Court agrees with the respondent’s submission that the orders should be specific, rather than framed in general terms that could arguably attract liability for breach of conditions that are not the subject of these proceedings.

51. Not only is there the general public interest in ensuring compliance with conditions of consents and approvals, but there is also a real threat of harm to the environment by allowing the illegal discharge of waste water to continue. Furthermore the constraints on ingress to and egress from the site were obviously imposed to provide safe movement of vehicles to and from the site and therefore should be maintained. An unsubstantiated claim from the bar table that a further unspecified development application has been made to council in an attempt to overcome some perceived difficulty with the existing conditions cannot justify deferring the effect of the orders the Court proposes in order to abide the outcome of the consideration of the development application.

52. Any financial detriment arising out of compliance with the Court’s orders is a direct consequence of commencing commercial operations before the council’s requirements were satisfied.

Costs

53. Counsel for the respondent submits that there is nothing to displace the presumption that if his client is the successful party the Court will exercise its discretion to make an order in his favour. On the other hand, if the council is successful, he says his client should not suffer an order against him because of the council’s dereliction of the Court’s orders in regard to the filing of affidavits. Accordingly, the respondent was entitled to defer filing and serving any affidavits until the whole of the council case had been disclosed. The reason no affidavits were sworn in the defence was because there was not sufficient time to do so after the last affidavit was served by council.

54. The primary affidavit relied upon by the applicant was served with the application on 9 September 1998. Three further affidavits were served on 30 November 1998 and 17 December 1998. Two corroborative affidavits, together with one further affidavit, were served on 1 February 1999.

55. The last affidavit, filed in Court with leave on 1 March 1999, was made available to the respondent immediately prior to the commencement of the hearing.

56. The final direction for the filing and service of affidavits required the applicant to do so by 4 December 1998. By that date the council’s case was clear from the affidavits served. The three affidavits provided on 17 December 1998, and two of the affidavits served on 1 February 1999, related only to the taking of samples of wastes and the results of the analysis. The third affidavit delivered on 1 February 1999 merely corroborated affidavit evidence made available to the respondent in December.

57. The final affidavit confirmed the continuation of the alleged breaches of the waste water conditions as at 18 February 1999.

58. The conduct of the council in the circumstances did not justify the lack of action by the respondent. If there had been any real prejudice, it would have been reasonable to expect the respondent to make an application for directions and orders regarding the filing and serving of affidavits, including leave to file his own evidence out of time. Instead the respondent adopted a tactic, no doubt with the benefit of advice, which insisted that the council prove its case. The tactic failed.

59. The evidence of council witnesses has remained uncontested except for a limited cross examination of one witness. The respondent was present in Court throughout the hearing and could have applied for leave to give oral evidence. An election was made not to call any evidence on behalf of the respondent.

60. Having regard to the whole of the circumstances, the Court is satisfied that it should properly exercise its discretion to make an order for costs in favour of the council as the successful party.

Orders

61. The formal orders of the Court are:-

1. A declaration that the respondent is operating or permitting or suffering to be operated a car wash and café at 612 Military Road Mosman (the property) in breach of conditions 1, 2(i), 10, 21, 22 and 27 of development consent No. 392/96 granted to the respondent by the applicant.

2. A declaration that the respondent is operating or permitting or suffering to be operated a car wash and café at the property in breach of conditions 11, 29 and 51 of building approval No. 269/97 issued to the respondent by the applicant.

3. That the respondent his servants and agents be restrained from operating or permitting or suffering to be operated a car wash and café at the property until each of conditions 1, 10, 21, 22 and 27 of development consent No. 392/96 and each of conditions 11 and 29 of building approval No. 269/97 have been complied with or otherwise satisfied or dispensed with in accordance with the provisions of the Environmental Planning and Assessment Act 1979 and the Local Government Act 1993.

4. That the respondent forthwith take and continue to take all reasonable steps to satisfy the requirements of condition 2(i) of development consent No. 392/96 and condition 51 of building approval No. 269/97.

5. That the respondent pay the applicant’s costs.

6. The exhibits may be returned.

I hereby certify that this and the preceding 16 pages are a true and accurate record of the reasons for judgment herein of the Honourable Justice R N Talbot.

Associate