Pittwater Council v Bolitho

[2007] NSWLEC 355

Land and Environment Court

of New South Wales

CITATION:

Pittwater Council v Bolitho [2007] NSWLEC 355

PARTIES:

APPLICANT
Pittwater Council

RESPONDENT
Kim Bolitho

FILE NUMBER(S):

40310; 40311 of 2007

CORAM:

Preston CJ

KEY ISSUES:

Civil Enforcement :- statutory orders to remove horses - injunctions sought to enforce statutory orders - Court has discretion to grant or withhold relief - not proper exercise of discretion to enforce a statutory order that should not have been issued - keeping of horses in an inappropriate manner - relief should be proportionate response - appropriate order is to require measures to be taken to keep horses in appropriate manner not removal of horses - costs

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 (NSW) s76A, s121B, s121ZK, s122(a), b(v), s123(1), s124(1)
Land and Environment Court Act 1979 s69(2)
Local Government Act 1993 (NSW) s124, s180, s672(a), (b)(ii), s673(1), s676(1)
Local Government (General) Regulation, cl 92, cl 21(4), Part 5 of Schedule 2

CASES CITED:

F Hannan v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306;
Cachia v Hanes (1994) 179 CLR 403;
Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd (1991) 74 LGRA 265;
Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd (No.2) (1992) 75 LGRA 210;
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGERA 173;
Royal Agricultural Society of NSW v City of Sydney Council (1987) 61 LGRA 305;
Shire of Perth v O'Keefe (1964) 110 CLR 529;
Warringah Shire Council v Raffles (1978) 38 LGRA 306;
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

DATES OF HEARING:

25 May 2007
29 May 2007
30 May 2007

 
DATE OF JUDGMENT: 

1 June 2007

LEGAL REPRESENTATIVES:

APPLICANT
R Lancaster (Barrister)
SOLICITORS
Mallesons Stephen Jaques

RESPONDENT
Kim Bolitho (in person)
SOLICITORS
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

1 JUNE 2007

40310 OF 2007
40311 OF 2007

PITTWATER COUNCIL V BOLITHO

JUDGMENT

1 HIS HONOUR: Pittwater Council seeks injunctive relief requiring Ms Bolitho to remove two horses from her residential property at Clareville and to take certain remedial steps to clean up the area used by the horses.

2 The Council moved the Court on 18 May 2007 for interlocutory injunctive relief for the removal of the horses. Talbot J declined to grant interlocutory injunctive relief but instead expedited the final hearing of the proceedings, listing them before the duty judge one week later on Friday, 25 May 2007.

3 The work commitments of both the duty judge and other judges of the Court on that day, together with the fact that a final hearing of the proceedings clearly would take in excess of one day, meant that it was not possible to complete any hearing of the proceedings on the day fixed for trial. Nevertheless, it was possible for the hearing of the proceedings to be commenced before me in the afternoon of 25 May 2007 and thereafter for the hearing to be continued on 29 and 30 May 2007.

4 At the conclusion of the hearing, the Council requested that judgment in the matters be rendered quickly, consistent with the expedition given to the matters by Talbot J. Accordingly, I have acted expeditiously to consider the case and to deliver judgment. The expedition in delivering judgment, however, has meant that I have not been able to give the matters as full consideration as I would otherwise prefer to have given and that I must deliver my reasons orally without the advantage of being able to review and craft these reasons.

5 As I will indicate later in my reasons, I will need the assistance of the parties to finalise the orders I consider appropriate to be made.

The facts in outline

6 On 3 January 2007, Ms Kim Bolitho brought her two horses, Sugar and Roxy, to her residential property at 57 Hilltop Road, Clareville. The horses have resided at her property since that date.

7 To facilitate the keeping of the horses on her property, Ms Bolitho progressively carried out some works. She erected a fence around an area of her property adjacent to a common driveway on a right of way that bisects her property and is adjacent to a carport on her property. Ms Bolitho cleaned out household goods that she had been storing in half of the carport. She laid on the floor of the carport, in order, a plastic tarpaulin, fibro cement boards treated with waterproofing material, wood shavings and straw. She then allowed the two horses to walk in and out of the carport and to use it as an occasional shelter. Ms Bolitho also laid wood shavings in the area outside around which she had erected a fence.

8 Immediately after the two horses were brought to Ms Bolitho’s property, the immediate neighbours, particularly those residing at 55, 59 and 61 Hilltop Road, found the presence of the horses objectionable and complained to Pittwater Council.

9 The complaints ranged over a number of topics but the main ones concerned the odour of manure and urine which the neighbours found to be offensive and the escape of waste materials, including wood shavings and straw on to the common driveway on the right of way and part of the neighbouring property to the north, 55 Hilltop Road.

10 The complaints of the neighbours were particularly numerous throughout January 2007.

11 Around the end of January 2007, Ms Bolitho erected a sturdier fence in replacement of the fence that she had first erected and carried out the steps to open the carport to the horses in the manner I have earlier described. Ms Bolitho also adopted more rigorous management measures.

12 Nevertheless, even after these steps were taken by Ms Bolitho, the complaints of the neighbours have continued, although with less frequency than in January.

13 In response to the neighbours’ complaints, the Council made numerous inspections of Ms Bolitho’s property. On many occasions when the Council officers visited, they did not observe offensive odours. Nevertheless, on some occasions they did detect odours. The Council resolved to respond to the neighbours’ complaints by issuing two statutory orders.

14 The first order, given on 13 February 2007, was pursuant to s 121B of the Environmental Planning and Assessment Act 1979. The order required Ms Bolitho, as the owner of the property, to comply with the terms set out in Schedule 1 to the order within the time specified in the Schedule. The Schedule required Ms Bolitho, in summary terms, to cease using the property in contravention of existing development consents; obtain and submit to the Council a report of a geotechnical engineer assessing the risk of geotechnical failure and landslip on the site and identifying any recommended necessary works; demolish the animal enclosure; restore the vehicular access, car parking arrangements and carport areas and clean the affected areas of the property; dispose of materials associated with the cleaning and restoration works in an appropriate manner; obtain and submit a further report of the geotechnical engineer confirming compliance with any recommendations in the first report; and maintain the use of the property in accordance with existing development consents.

15 Time periods were specified for each of the actions ranging from 3 days up to 14 days.

16 Ms Bolitho did not comply with the terms of the order within the time period specified and, except for the requirement for submission of a geotechnical engineer’s report, such non-compliance continues to date.

17 The second order, given on 23 March 2007, was pursuant to s 124 of the Local Government Act 1993. The order required Ms Bolitho, as the owner of the property, to comply with the terms set out in Schedule 1 to the order within the time specified in the Schedule. The Schedule required Ms Bolitho, within 14 days, to cease keeping horses on the property and, within a further 7 days, to clean the area previously used as a stable and enclosure for the horses.

18 Ms Bolitho did not comply with the terms of the order within the period specified and such non-compliance continues to date.

19 On 12 April 2007, the Council commenced two proceedings in the Court seeking declaratory and injunctive relief. One proceeding (No 40310 of 2007) relates to the non-compliance with the order under s 124 of the Local Government Act. The other proceeding (No 40311 of 2007) relates to the non-compliance with the order under s 121B of the Environmental Planning and Assessment Act and otherwise to the carrying out of development on the property by constructing enclosures for the keeping of horses without development consent in breach of s 76A of the Environmental Planning and Assessment Act.

Breaches of the Acts

20 As I noted, Ms Bolitho has failed to comply with each of the statutory orders. Both the Local Government Act and the Environmental Planning and Assessment Act provide that a failure to comply with an order issued under either Act constitutes a breach of the Act: see s 672(a) and (b)(ii) of the Local Government Act and s 122(a) and (b)(v) of the Environmental Planning and Assessment Act. The Council may bring proceedings in this Court to remedy or restrain a breach of either Act: s 673(1) of the Local Government Act and s 123(1) of the Environmental Planning and Assessment Act. The Court, where satisfied that a breach of either Act has been committed or will, unless restrained by order of the Court, be committed, may make such order as it thinks fit to remedy or restrain the breach: s 676(1) of the Local Government Act and s 124(1) of the Environmental Planning and Assessment Act.

21 The statutory orders issued by the Council under each Act are valid unless and until set aside by the Court. Although Ms Bolitho had a right to appeal to the Court against each of the orders (see s 180 of the Local Government Act and s 121ZK of the Environmental Planning and Assessment Act), Ms Bolitho did not exercise the right of appeal. Nor did Ms Bolitho bring proceedings by way of judicial review in the Court challenging the legal validity of the statutory orders.

22 Accordingly, the position is that statutory orders have been issued and are effective and Ms Bolitho has failed to comply with the orders. Such failure constitutes a breach of each of the statutes pursuant to which the orders were issued.

Relief for breaches

23 The finding that Ms Bolitho is in breach of the Local Government Act and the Environmental Planning and Assessment Act is a necessary but not sufficient condition for the Court to make the declaratory and injunctive relief sought by the Council in each of the proceedings.

24 The Court retains a wide discretion under the Local Government Act and the Environmental Planning and Assessment Act to make and to withhold relief. The Court may mould the manner of intervention in such a way as will best meet the practicalities as well as the justice of the situation before it. This includes making no order if the Court decides that there is no order fit or just to meet the case: see F Hannan v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306 at 311 and Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-341, 342.

25 It is to be remembered that the discretion to grant or to withhold relief in relation to any breaches of the Local Government Act or Environmental Planning and Assessment Act, is itself a legitimate and integral part of the statutory scheme under those Acts: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 342.

26 Guidelines for the exercise of the Court’s discretion have been given in the cases: see, for example, Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 349-341. Such guidelines have not “unduly circumscribed” the Court’s discretion and the Court properly must have regard to the individual circumstances and the justice of each case: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 342.

27 I will deal with the proper exercise of the Court’s discretion in relation to each of the breaches of the statutes.

Relief under the Environmental Planning and Assessment Act

28 According to the terms of the order issued by the Council under s 121B of the Environmental Planning and Assessment Act¸ the Council issued the order on the basis of the circumstances in paragraphs 1(b), 2(a), 8(a), 12(a) and 15 of Column 2 of s 121B of the Environmental Planning and Assessment Act. These circumstances are as follows:

· 1(b): “Premises are being used for which development consent is required but has not been obtained”.

· 2(a): “The building is erected without prior development consent of consent authority in a case where prior development consent is required or erected without prior development consent of a consent authority and a prior construction certificate in a case where both prior development consent and prior construction certificate are required”.

· 8(a): “The activity constitutes or is likely to constitute a life-threatening hazard”.

· 12(a): “The building has been unlawfully erected, and an order No 2 has been given requiring the building to be demolished or removed”.

· 15: “The development consent is not being complied with”.

29 As to circumstance 1(b), the Council stated in the order issued that the purpose for which Ms Bolitho’s property was being used was “the keeping of horses”. Use for that purpose in the Residential 2(a) zone in which Ms Bolitho’s property is located was said by the Council to require development consent. The existing development consents authorise the use of the property for the purpose of a dwelling house. Hence, the Council contended, the property was being and continues to be used for a purpose for which development consent is required, namely the keeping of horses, but which has not been obtained.

30 However, contrary to the Council’s argument, Ms Bolitho’s keeping of her two horses on her residential property has not caused a change in the purpose of the use from that of dwelling house.

31 In planning law, use must be for a purpose: Shire of Perth v O’Keefe (1964) 110 CLR 529 at 534-535 and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGERA 173 at 188. The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued: Shire of Perth v O’Keefe (1964) 110 CLR 529 at 534.

32 The nature of the use needs to be distinguished from the purpose of the use of the land. Uses of different natures can still be seen to serve the same purpose: see Shire of Perth v O’Keefe (1964) 110 CLR 529 at 534, 535 and Warringah Shire Council v Raffles (1978) 38 LGRA 306 at 308.

33 The characterisation of the purpose of the use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes: Royal Agricultural Society of NSW v City of Sydney Council (1987) 61 LGRA 305 at 310.

34 Use of land for the purpose of a dwelling house encompasses a variety of activities and uses of different natures. The keeping of domestic animals by the residents is one such activity. If a resident keeps one or more pet dogs, cats, guinea pigs, rabbits, birds, fish or other domestic animals, such activity does not constitute a use of the residential property for an independent purpose of the keeping of those particular animals or even of the keeping of animals generally. The end to which the residential property would serve would remain that of dwelling house. No different conclusion is to be drawn depending upon the size of the domestic animal. A horse might be larger than a dog but the keeping of a pet horse by a resident does not constitute use for an independent purpose of keeping a horse on the land.

35 The Council, unsurprisingly, was unable to cite any authority supporting the proposition either that keeping a horse is a recognised planning purpose of a use of land or that the keeping of a horse on residential land constitutes a use for an independent purpose of keeping a horse.

36 Accordingly, there was no foundation under circumstance 1(b) for the issue by the Council of the order under s 121B of the Environmental Planning and Assessment Act.

37 As to circumstance 2(a), the evidence does not establish that the work done by Ms Bolitho to remove the stored household goods from the carport and to place various temporary materials on top of the existing constructed floor of the carport constitutes the erection of a building. Circumstance 2(a) does not apply to those works.

38 In relation to the erection of the fence to enclose an area for the horses, development consent would not be required if such development is exempt development. Clause 55(1) of Pittwater Local Environmental Plan 1993 provides that development of minimal environmental impact listed as exempt development in Development Control Plan No 22: Exempt and Complying Development (“DCP 22”) is exempt development, despite any other provision of the plan (such as Clause 9 and the Development Control Table thereto). Development is exempt development only if it complies with the requirements applicable to that development in DCP 22: see clause 55(3) of Pittwater Local Environmental Plan 1993.

39 DCP 22 provides that the development of fences (except for certain types of fences not of relevance to this case) are exempt development. The DCP lists certain requirements for exemption for fences.

40 The fence erected by Ms Bolitho answers the description of being the development of “fences” and complies with the “Requirements for Exemption” for fences in column 3 of the table to Part B of DCP 22. This was accepted in evidence by Mr Dunbar, a senior planner employed by the Council who was called to give evidence at the hearing.

41 Furthermore, there is no evidence to suggest that the fence erected by Ms Bolitho does not comply with each of the requirements for exempt development in Part B of DCP 22 so far as they are relevant to development of a fence.

42 As a consequence, the erection of the fence is exempt development and development consent was not required.

43 The Council nevertheless contended that because the fence enclosed an area on Ms Bolitho’s property in which the horses were kept, it constituted an animal enclosure and that such animal enclosure did not comply with the requirements for exemption for animal enclosures under DCP 22. Accordingly, the Council contended that the animal enclosure was not exempt development and would require development consent.

44 This argument contains an illogicality. As I have noted, cl 55(1) of Pittwater Local Environmental Plan provides that development of minor environmental impact “listed as exempt development” in DCP 22 (and that complies with the requirements for exemption for that type of listed development) “is exempt development”. Hence, once development can be seen to fall within one of the types of development listed in DCP 22 as exempt development, it is exempt development. It cannot lose that status as exempt development because it does not satisfy the requirements for exemption of another type of development that is listed as exempt development. The non-satisfaction of the requirements of exemption for that other type of development listed as exempt development simply means that it cannot be that type of development. However, that still leaves the development being the first kind of exempt development and, accordingly, exempt development for the purposes of Pittwater Local Environmental Plan and the Environmental Planning and Assessment Act.

45 For this reason, if it were to be assumed that the erection of the fence around part of Ms Bolitho’s property adjacent to the carport and the keeping of the horses within that fence resulted in an “animal enclosure” (which I do not find) and the area so enclosed does not comply with the requirements for exemption listed for animal enclosures in DCP 22 (notably the maximum area of 6 square metres), this would simply mean that the development of the fenced area is not exempt development by reason of it being an animal enclosure. That conclusion has no effect on the earlier conclusion that the development of the fenced area is exempt development by reason of its being the type of development of fences which is separately listed as exempt development in DCP 22.

46 In the alternative, if I am wrong in the above conclusion, I would not construe the term “animal enclosures” in the context of the collocation of words in which it occurs (“Bird aviaries, coups, animal enclosures and the like (see also Fowl houses)”) or the requirements for exemption for that type of exempt development (including the maximum area of 6 square metres), to include the fencing of an area in which to contain a domestic, non-avian pet. The fencing of a residential allotment to keep a pet dog, for example, from straying off the premises does not convert the allotment into an animal enclosure within the meaning of that term in that type of listed exempt development. If it did, every allotment would fail the requirements for exemption, notably that the requirement for the maximum area enclosed be 6 square metres.

47 For this reason also, the type of listed exempt development of an animal enclosure is not applicable to the area enclosed by the fence and carport on Ms Bolitho’s property. The non-satisfaction of that area with requirements for exemption of an animal enclosure in DCP 22 does not cause the development not to be exempt development or require development consent to be obtained.

48 For these reasons, there was no foundation under circumstance 2(a) for the issue by the Council of the order under s 121B of the Environmental Planning and Assessment Act.

49 As to circumstance 8(a), neither the activity of keeping the horses constitutes an activity that is, or is capable of being the subject of a development consent, nor, even if it were to be such an activity, is there any evidence to establish that that activity constitutes or is likely to constitute a life threatening hazard. I note that the Council no longer pressed this circumstance upon which the s 121B order was issued by the Council.

50 Accordingly, circumstance 8(a) was not a foundation for the issue by the Council of the order under s 121B of the Environmental Planning and Assessment Act.

51 As to circumstance 12(a), it is to be noted that the circumstance has two requirements: first, that a building has been unlawfully erected and, second, that an order No 2 “has been given” requiring the building to be demolished. For the reasons I have given above, the first requirement has not been satisfied with respect to either the carport (the evidence does not establish that the works done constitute the erection of a building) or the fence (the erection of the fence is exempt development). Moreover, there was not a foundation for the issue of an order No 2 for the reasons I have given in relation to circumstance 2(a). Hence, the foundation for an order No 12, consequent on an order No 2, would also not exist.

52 Accordingly, there is no foundation under circumstance 12(a) for the issue by the Council of the order under s 121B of the Environmental Planning and Assessment Act.

53 Finally, as to circumstance 15, the Council stated in the order that the respect in which the existing development consent is not being complied with is that “an animal enclosure” has been constructed “across the entire length of the vehicular access and car parking platforms and therefore prohibits all designated vehicular access onto and within the premises”. The Council continued in its statement of reasons in the order that “A review of Council records has revealed that a carport and associated parking for two cars is required to be provided at the site in conjunction with previously approved deemed consent (Building Approval) no: 259/89 and the consent is now not being complied with”. No other development consent is referred to by the Council in the order.

54 Building Approval No 259/89 is dated 27 January 1989. The work in that building approval concerned limited internal works within the existing dwelling house. The works did not concern the carport, car parking or vehicular access to the carport. Accordingly, the only consent referred to in the order under s 121B did not concern and did not impose any requirements in relation to the carport, car parking or vehicular access.

55 The actions of Ms Bolitho in relation to the carport, car parking and vehicular access cannot, therefore, involve any non-compliance with, to use the Council’s words in the s 121B order, “previously approved deemed consent (Building Approval) no 259/89”. The Council’s stated reason for circumstance 15 being enlivened, therefore, was incorrect and did not provide a foundation for the issue by the Council of an order under s 121B of the Environmental Planning and Assessment Act.

56 The consequence of the above analysis of each of the circumstances under s 121B and the reasons relied on by the Council stated in the s 121B order is that there were not circumstances upon which the Council could properly have issued the order under s 121B of the Environmental Planning and Assessment Act.

57 Of course, as a matter of fact, the Council did issue the order on the basis of the circumstances and for the reasons it stated in the order. The order was not appealed and has not been set aside. Whilst it remains in force, Ms Bolitho was obliged to comply with it. Her failure to do so involved a breach of the Environmental Planning and Assessment Act. However, it would not be a proper exercise of the Court’s discretion to restrain that breach by enforcing the order in circumstances where the order ought not properly ever to have been made. That would not meet the justice of the situation.

58 Accordingly, the Court will not make either the declaratory or injunctive relief relating to the breach of the s 121B order sought by the Council in its Class 4 Application.

59 The Council also claimed declaratory and injunctive relief for a reason independent of the failure to comply with the s 121B order. The first prayer for relief in the Council’s Class 4 Application sought a declaration that Ms Bolitho “has carried out development on the Property by constructing enclosures for the keeping of horses without development consent in breach of s 76A of the Environmental Planning and Assessment Act 1979”. That prayer for relief is quite particular in describing the development, the carrying out of which is said to constitute a breach of the Environmental Planning and Assessment Act; it is “constructing enclosures for the keeping of horses”.

60 For the reasons I have given above, the only action involving the “constructing of enclosures for the keeping of horses” was the erection of the fence. The development of erecting the fence was exempt development and did not require development consent. Accordingly, the development of constructing enclosures for the keeping of horses was not in breach of the Environmental Planning and Assessment Act.

61 In closing submissions at the hearing, the Council sought to argue that Ms Bolitho was also in breach of s 76A of the Environmental Planning and Assessment Act in that she was in breach of condition 15 of Building Approval No 3215/86 dated 16 December 1986. I do not consider that it would be just for the Court to grant declaratory or injunctive relief in relation to such an alleged breach for four reasons.

62 First, the Council has not previously raised such an allegation. Such an allegation was not made in the s 121B order issued by the Council. As I have noted above, the only approval referred to in the s 121B order issued by the Council as not having being complied with by Ms Bolitho, was Building Approval No 259/89. Such an allegation of breach was also not made in the Council’s Class 4 Application. The only two breaches alleged in the Class 4 Application are the alleged non-compliance with the s 121B order issued by the Council (prayer for relief 2) and the alleged carrying out of development on the property by constructing enclosures for the keeping of horses without development consent (prayer for relief 1). The hearing has been conducted on the basis of these alleged breaches.

63 It is not in the interest of justice to allow the Council to amend its Class 4 Application in closing submissions so as to raise a fresh allegation of breach of the Environmental Planning and Assessment Act based on the alleged breach of condition 15 of Building Approval no 3215/86 dated 16 December 1986.

64 Second, even if leave were to be granted, the Council has not established at the hearing that a breach of condition 15 of Building Approval 3215/86 issued under Part 11 of the former Local Government Act 1919 on 16 December 1986 is a breach of the Environmental Planning and Assessment Act. It is true that there are various transitional regulations which can deem, in certain circumstances, an approval granted under the former Local Government Act 1919 or its replacement Local Government Act 1993, to be a development consent granted under the Environmental Planning and Assessment Act. However, the Council has not, either by evidence or submissions, discharged the burden on it as an applicant in proceedings seeking declaratory and injunctive relief of establishing that any such transitional regulations, in the facts of this case, make Building Approval No 3215/86 a development consent with the consequence that any breach of the building approval constitutes a breach of the Environmental Planning and Assessment Act.

65 Third, again, even if leave were to be granted to amend the Class 4 Application, the Council has not established that Ms Bolitho’s conduct constitutes a breach of condition 15 of Building Approval 3215/86. Building Approval 3215/86 was for “the erection of additions”. These additions involved “an extension to the existing cottage”. The additions are said to relate, by condition 13, only to the additions “coloured on the Council approved plan”. The photocopy of the plan tendered in evidence is not clear as to whether the carport structure is coloured. However, making the assumption that the carport is coloured on the approved plan, the Building Approval authorised the erection of the free standing structure that constitutes the carport.

66 Condition 15 of the Building Approval states:

“The two (2) level car parking spaces are to be a minimum of 2.5m x 5.4m as indicated in red on the plans.”

67 The plans show the carport floor being bisected in width by a line so as to create two car parking spaces. Two handwritten curved lines are drawn, each originating in a car parking space and extending to a hand written note stating “2 car parking spaces 2.5m x 5.4m as shown”.

68 After the text of the 15 conditions of the Building Approval are a number of notes, one of which states:

“Garage and/or other non-residential section of the building not being used for human habitation or occupation or let out for such purposes”.

69 Having regard to the nature of the building approval; its stated content as being additions to an existing cottage; the terms of condition 15 and the hand written annotations on the plans and in particular their focus on the dimensions of the car parking spaces; and the note after the conditions on the one hand expressly prohibiting the use of the garage for human habitation or occupation or letting out for such purpose and on the other hand not expressly prohibiting any other use or, conversely, not expressly requiring the garage only to be used for the parking of cars, condition 15 of the Building Approval should not be construed as imposing an obligation either prohibiting the carrying out of any activity in the carport other than the parking of cars or of prohibiting the erection of a fence outside the carport which might impede vehicular access to the carport.

70 Accordingly, the use of the carport by the horses as an occasional shelter and the erection of a fence outside but removed from the carport, do not constitute a breach of condition 15 of the Building Approval properly construed.

71 Finally, even if I am wrong in the above conclusion that there was and is not a breach of condition 15 of the Building Approval, if there were to be a breach, it has not caused any harm of the kind intended to be avoided by the imposition of condition 15. Condition 15 is intended to enable the occupants of the dwelling house to park their cars in the two car parking spaces of the carport. Ms Bolitho does not own a car and therefore does not park in or around her property. The non-availability of the car parking spaces in the carport does not, therefore, have any consequence of relevance to condition 15 of the Building Approval.

72 The Council did not state as a reason for issuing the s 121B order that, as a matter of fact, Ms Bolitho has parked cars other than in the car parking spaces and so as to cause an interference. The Council’s reason for the issue of the s 121B order is simply the fact that the carport was not available to be used for car parking, not that that fact has caused parking elsewhere and inconvenience.

73 In circumstances where, therefore, any breach of condition 15 has not caused the relevant harm of car parking elsewhere and consequential interference, and any order remedying the breach could not alleviate harm that has not been caused, it would not be a proper exercise of the Court’s discretion to enforce condition 15 of the Building Approval.

74 For these reasons, the Council has not established that the Court should make the declaratory and injunctive relief sought on the basis of any alleged breach of condition 15 of Building Approval 3215/86.

75 In conclusion, the Council has failed to establish that the Court should grant the relief sought in the Council’s Class 4 Application in proceedings no 40311 of 2007 in relation to any breach of the Environmental Planning and Assessment Act. These proceedings should therefore be dismissed.

Relief under Local Government Act 1993

76 According to the terms of the order issued by the Council under s 124 of the Local Government Act 1993, the circumstance relied on by the Council to issue the order was that stated in paragraph 18 of the Table to s 124. This circumstance is that:

“Birds or animals kept on premises are:
(a) in the case of any premises (whether or not in a catchment district) – of an inappropriate kind or number or are kept inappropriately”.

77 In the Council’s s 124 order, the Council states that:

“The two horses being kept at 57 Hilltop Road, Avalon are,
1. an inappropriate kind of animal for the site; and
2. being kept inappropriately”.

78 Of the three circumstances specified in paragraph 18 (namely inappropriate kind, inappropriate number and inappropriate keeping), the Council has selected the first and third, but not the second (inappropriate number).

79 As to the first circumstance (inappropriate site), the reason the Council gave in the s 124 order was as follows:

“The subject premises is located in an area subject to Pittwater Council’s Geotechnical Risk Management Policy. Under an Order, issued to you under s 121B of the Environmental Planning & Assessment Act 1997 on 13 February 2007, the submission of geotechnical documentation is required. A satisfactory report has not been received and therefore Council cannot form the view whether the subject premises is an appropriate site for the keeping of horses, having regard to the stability of the land and structures and the safety of persons and the horses”.

80 As I have noted above, the only works done by Ms Bolitho involved the erection of a fence in the area adjacent to the right of way and outside the carport and the placing of temporary materials (plastic tarpaulin, fibro-cement boards treated with waterproofing material, wood shavings and straw) on the existing constructed floor of the carport. The two horses stand and walk in the area enclosed by the fence and on the floor of the carport.

81 The carport was approved by the Council under Building Approval 3215/86 dated 16 December 1986 presumably as a proper, safe and sound structure to be erected on the land and to support the weight of two cars and the number of persons that those cars can accommodate. To suggest that the placing of the temporary materials on the floor of that carport and the standing and walking of two horses of significantly less weight than the two cars and their occupants on that floor could pose any geotechnical risk to the stability of the land or the carport or to the safety of persons or horses, is fanciful. The Council has adduced no evidence to support this allegation of geotechnical risk.

82 In relation to the fence, Mr Jack Hodgson, a geotechnical engineer engaged by Ms Bolitho, produced and submitted to the Council on 30 January 2007 (before either of the statutory orders were issued by the Council in this case), a report stating:

“On 23 January 2007, we inspected the partly completed timber post and rail fence being erected on the western side of the ROW at the subject address.
The fence is located immediately adjacent to the ROW and at the top of the stable slope down to the road that is well vegetated. The posts are all concreted into the ground and the rails have been bolted in place.
It is our opinion that the fence will be structurally adequate and that it will have an Acceptable Risk Level in accordance with the June 2003 Interim Geotechnical Risk Management Policy for Pittwater”.

83 The Council has not adduced any evidence to the contrary of this evidence establishing that the erection of the fence poses any geotechnical risk to the stability of the land or to the safety of persons or horses.

84 The Council did tender at the hearing a geotechnical assessment of Mr Davies. However, that geotechnical assessment does not assert that the fence poses any geotechnical risk. Indeed, it does not even address the fence. The only aspect of relevance to the area used by the horses that was addressed by Mr Davies is the area which Mr Davies refers to as “the slope modifications at the downhill edge of the ROW, and on the steep slope between the ROW and Hilltop Road”.

85 These areas are on the northern and western sides of the fenced area. Mr Davies describes these slope modifications as being “relatively small-scale”. Mr Davies concludes:

“Consequently, the slope risk issues associated with these recent works are initially assessed to be of relatively minor concern, due mainly to the Minor to Insignificant consequences (reference 2) should these fill areas fail”.

86 Reference 2, to which Mr Davies referred, is stated to be Practice Note Guidelines for Landslide Risk Management 2007 [and Commentary], Australian Geomechanics, Vol 42, No 1, March 2007.

87 Hence, the Council’s own geotechnical evidence provides no evidentiary foundation for the Council’s assertion of geotechnical risk, either of the carport or the fence.

88 The geotechnical engineer engaged by Ms Bolitho, Mr Hodgson, also addressed the access steps and associated landscaping on the downhill side of the right of way (to the west of the fenced area). Mr Hodgson concluded in his letter dated 22 May 2007 that:

“This work has been carried out to an acceptable standard with minimal disturbance to the trees and other vegetation. In our opinion the work has enhanced the stability of the slope.
The part of the subject site down hill of the ROW is assessed as having an Acceptable Risk Level in accordance with the June 2003 Interim Geotechnical Risk Management Policy for Pittwater”.

89 Accordingly, the Council’s stated reason for the site being inappropriate for horses, namely the geotechnical instability of the land and the structures, was and still is without evidentiary foundation. This reason did not provide a foundation under circumstance 18 for the issuing of the Order under s 124 of the Local Government Act.

90 The Council at the hearing submitted that the site was inappropriate for horses by reason of its size and topographical and vegetative characteristics.

91 The allotment is approximately 1400 square metres, it is steeply sloping and heavily vegetated. The area available for use by the horses is constrained by the topography and vegetation to the area adjacent to the right of way and the carport. The outside area, which has been fenced, is approximately 17 metres long by 4.5m (on the northern side) to 6 m (on the southern side) wide. The part of the carport currently used by the horses is about 3m by 4m. Hence, the total area is in the order of 100 m2.

92 Notwithstanding these facts about the site, there is no evidence that the horses’ health or welfare is in any way affected. To the contrary, the evidence is that the horses are healthy, well fed, well groomed, well cared for and loved.

93 The RSPCA has been notified by the neighbours, has visited the horses, has seen their environment and has held discussions with Ms Bolitho. The RSPCA has concluded that no breaches under the Prevention of Cruelty to Animals Act can be substantiated. The RSPCA has not taken and has not indicated that it will take any action.

94 Ms Bolitho has tendered written evidence of a vet who has attended the two horses, Dr Matthew Murphy. Dr Murphy has expressed no concern as to the health or welfare of the animals. Ms Bolitho has also tendered dozens of affidavits, statements and letters by persons who have visited the property and observed the horses’ health and welfare and Ms Bolitho’s care and treatment for the horses. All have made positive observations concerning the horses’ health and welfare and the attention, care and love Ms Bolitho bestows on the horses.

95 An important factor that needs to be taken into account in assessing the appropriateness of the site for the horses is that Ms Bolitho regularly exercises the horses off the property. Ms Bolitho takes the horses for walks and rides on a regular basis. Accordingly, whilst the area comprising the fenced area and the carport might be seen, by itself, to be relatively constrained, this does not represent the total environment of the horses. In the same way that horses stabled at Moore Park exercise in Centennial Park and the horses of the Mounted Police Force that are stabled in urban barracks exercise in open spaces outside those barracks, Ms Bolitho’s horses exercise outside her property.

96 For these reasons, the Council has not established that the horses are an inappropriate kind of animal for this particular site, notwithstanding its constraints.

97 The other reason given by the Council in issuing the order under s 124 of the Local Government Act was that the horses are being kept inappropriately. The manner in which the Council stated in the s 124 order that the horses were being kept inappropriately was, first, that the Council’s Policy No 28 – Horses on Private Premises was not being complied with in specified ways, and, second, that the horses were not being kept in accordance with the requirements of cl 21 of Schedule 2 to the Local Government (General) Regulation 2005 in certain specified ways. I will first deal with the Local Government (General) Regulation 2005.

98 Clause 92 of the Local Government (General) Regulation provides that for the purposes of issuing an Order No 18 (i.e. an order under s 124 of the Local Government Act based on the circumstances in paragraph 18), the standards for the keeping of birds or animals set out in Part 5 of Schedule 2 are relevant standards referred to in Column 2 of the Table to s 124 of the Act.

99 The note to cl 92 of the Regulations states that an Order can be made requiring compliance with these standards if they are not being complied with.

100 In Part 5 of Schedule 2 to the Local Government (General) Regulation, the only clause of relevance to horses is cl 21. That clause specifies certain standards for the keeping of horses. However, the standards in the clause apply to a person only if the Council has served an order under s 124 of the Act to that effect on the person: see cl 21(4) of the Regulation. As the Council properly conceded, it has not served on Ms Bolitho an order under s 124 specifying that the standards in cl 21 will apply to her and need to be complied with. Accordingly, the standards in cl 21 of the Local Government (General) Regulation do not apply to Ms Bolitho and could not be used as a basis for making an Order No 18 against Ms Bolitho.

101 In any event, even if the Council had served an order specifying that the standards in cl 21 were to apply to Ms Bolitho, the order that properly would be made under Order No 18 would be an order requiring that Ms Bolitho keep the horses in compliance with the standards. The Council’s order did not require Ms Bolitho to keep the horses in compliance with the standards in cl 21. Rather, the Council’s order required Ms Bolitho not to keep horses on the property at all.

102 However, even if the standards in cl 21 were to be applied to Ms Bolitho, the Council has not established at the hearing that Ms Bolitho is keeping her horses otherwise than in compliance with the standards in cl 21. The three standards in cl 21 of relevance are:

(a) Horses must not be kept within 9 m (or such greater distance that the Council may determine in a particular case) of a dwelling;

(b) The floors of stables must be paved with concrete or mineral asphalt or other equally impervious material and must be properly graded to drain; and

(c) Horse yards must be so enclosed as to prevent the escape of horses.

103 As to the first standard, the Council has not established that the horses are kept within 9 m of any dwelling (The Council has not determined or notified Ms Bolitho of any determination that a greater distance than 9 m should apply in the particular case of Ms Bolitho’s property.) The closest dwelling to the horses is Ms Bolitho’s dwelling and it is in excess of 9 m. The dwellings on the neighbouring properties of 55, 59 and 61 Hilltop Road are all in excess of 30 m away.

104 As to the second standard, the Council has not established at the hearing that the carport is a “stable”. It is a carport that serves as an occasional shelter for the horses who are able to walk in and out of the carport at their leisure. The carport is fully open to the east (the side where vehicular access could occur) and is partially open to the west. The Council has not established that the floor of the carport, with the originally constructed hardwood floor and the overlays of plastic tarpaulin and fibro-cement sheets treated with waterproof material, is not an “equally impervious material”. Finally, the Council has adduced no evidence as to the grade of the floor of the carport and hence has not established that the floor is not properly graded to drain as required under the second standard.

105 As to the third standard, the horse yard is fenced and hence enclosed so as to prevent the escape of the horses. There is no evidence that the horses have escaped at any time since the fence has been built. Indeed, Ms Bolitho’s evidence is that notwithstanding an event that terrified and panicked the horses (namely the dropping of a dishwasher from an upper storey of a house at 55 Hilltop Road which caused considerable noise and frightened the horses), the fence withstood the panicked press of the horses.

106 For these reasons, cl 21 of the Local Government (General) Regulation did not and still does not provide a foundation for the Council issuing an order under s 124 of the Local Government Act 1993 to Ms Bolitho that she not keep horses on the property.

107 I turn now to the second document relied upon by the Council in its order under s 124 of the Local Government Act. This is the Council’s Policy No 28 – Horses on Private Premises.

108 The Policy, according to the searches by Mr Dunbar, a senior planner with the Council, of the Council’s policy register, was adopted by the Council on 3 March 1997.

109 The Policy states in the first paragraph that it was made in “[i]mplementation of the powers outlined in Local Government (Orders) Regulation 1993”. That regulation is no longer in force. It was repealed and was ultimately replaced by the Local Government (General) Regulation. The Local Government (General) Regulation now regulates the making or orders under s 124 of the Local Government Act 1993, including specifying the relevant standards for making an Order No 18 relating to the keeping of birds or animals on premises. As I have stated above, cl 92 of the Local Government (General) Regulation 2005 states that the relevant standards are the standards in cl 21 of Part 5 of Schedule 2 of the Regulation.

110 As a consequence, Council’s Policy No 28 – Horses on Private Premises has no legal status in prescribing relevant standards for the issuing of an Order No 18 for the keeping of animals on premises.

111 Nevertheless, I will refer to each of the Policy’s provisions as a guide to assessing whether the keeping of horses on Ms Bolitho’s property is being carried out in an inappropriate manner.

(a) “That Council agrees on a general policy in zonings other than Non-Urban…”.

112 The Policy accepts that horses can be kept on private premises in zonings other than non-urban, which would include residential zonings. Hence, the Council’s Policy does not prohibit the keeping of horses in residential zones or state that horses are inherently inappropriate in residential zones. There is nothing in the Council’s Policy which makes inherently inappropriate Ms Bolitho’s keeping of horses on her property which is in the Residential 2(a) zone.

(b) “Unless special circumstances exist that horses be limited to one per allotment”.

113 Ms Bolitho has two horses on her allotment. Yet that fact, as I have noted previously, was not the basis for the Council issuing its order No 18. The Council relied in its Order on the horses being an inappropriate kind of animal for the site and the horses being kept inappropriately, not on the number of horses being kept on the site.

114 Accordingly, this provision of the Policy does not provide a foundation for the order issued by the Council.

115 In any event, Ms Bolitho has explained in evidence the special circumstances for keeping two horses on her property. One of the horses, Sugar, was abused whilst at its former place of agistment and needs special care and attention. The other horse, Roxy, has been the companion for Sugar for four years and it is beneficial for the two horses’ health and welfare that they be kept together.

(c) “No horse to be kept closer than 9 m from any dwelling or other specified building or such greater distance as the Council may be [sic] resolution may require in the circumstances”.

116 As I have noted above, the Council has not passed any resolution requiring in the circumstances of Ms Bolitho’s premises or horses that a greater distance than 9 m be specified. Accordingly, the minimum distance between horse and dwelling is the 9 m specified in the Policy. The closest dwelling to the horses is Ms Bolitho’s dwelling and it is not closer than 9 m. The dwellings at 55, 59 and 61 Hilltop Road are in excess of 30 m.

117 This provision of the Policy does not provide a foundation for the Council’s order.

(d) “Provision of a stable be not insisted upon and that reasonable alternative shelter be accepted, but that where a stable is provided, such to be provided with impervious floor and drained to Council’s satisfaction and be the subject of a building application”.

118 The first part of this provision of the Council’s Policy makes clear that a stable is not required and that it is acceptable to have a reasonable alternative shelter. Accordingly, the fact that Ms Bolitho does not have a stable, but rather allows the carport to be used as an alternative shelter, is acceptable under the Council’s Policy.

119 The second part of the provision only applies where a stable is provided. The carport is not a stable and hence this part of the provision of the Policy is not applicable.

120 In any event, the Council has not established that the floor of the carport is not an “impervious floor”, for the reasons that I gave when dealing with the second standard in cl 21 of the Local Government (General) Regulation 2005. The carport has been the subject of a building application, namely Building Application 3215/86 issued on 16 December 1986. It is true that that was for a carport, not for a stable, nevertheless the structure has been approved by the Council.

121 Accordingly, this provision of the Council’s Policy does not provide a foundation for the order issued by the Council.

(e) “Provision of a space approximately in dimensions in area to 15 m x 7.5 m for each animal”.

122 An area with dimensions of 15 m x 7.5 m would be 112.5 square metres. The outside fenced area on Ms Bolitho’s property is approximately 17 m long by 4.5 to 6 m wide. In addition, the part of the carport that is able to be used by the horses currently is about 3 m by 4 m. Hence, the space provided is approximate in dimensions and area to that specified for one animal in the Policy. However, in Ms Bolitho’s case, two horses are using that space, rather than one as specified by the Policy. Nevertheless, in the circumstances of this case, that is an acceptable departure from the provision of the Policy.

123 First, the Council does permit, in special circumstances, more than one horse being allowed per allotment. In this case, the Council has not raised any issue about the keeping of two horses on the allotment. Furthermore, there are special circumstances in relation to these two horses.

124 Second, for the reasons I have given earlier, the smaller size of the area in which the two horses are enclosed on the property has not lead to any adverse effect on the health or welfare of the horses.

125 Third, the Council has not established that a doubling of the area on the property for use by the horses would lead to any measurable change in impacts either on the horses or on neighbours.

126 In these circumstances, although the keeping of the two horses on Ms Bolitho’s property does not comply with this provision of the Council’s Policy concerning the space to be provided for each animal, such a non-compliance is acceptable in the circumstances.

(f) “Yard and premises to be sufficiently fenced to prevent the escape of animals and drained to Council’s satisfaction”.

127 In relation to the first part of this provision, the yard in which the horses are kept has been fenced. For the reasons that I have stated earlier, such fencing is sufficient to prevent the escape of the horses. Ms Bolitho has stated that she did not complete the fencing to the standard she would desire. Ms Bolitho has indicated that she would wish to continue placing more rails to complete the hard wood post and rail fence in lieu of the wire strands. In addition, she wishes to install a double gate which would allow cars to come off the right of way and park in front of the carport.

128 Such completion of the fencing would be desirable. However, the fact that the fencing has not yet been completed to that standard does not cause the fence to not answer the description of being sufficient to prevent the escape of the horses.

129 In relation to the second part of this provision, the Council asserted in its reasons for the issue of the s 124 order that the enclosure is not properly drained. The Council states that on the inspection by the Council on 16 January 2007, the Council observed that there was a lack of waste water and solid waste drainage within the enclosure which the Council considered was likely to cause further nuisances.

130 Ms Bolitho states that she has written to the Council requesting advice about drainage but has not received a response from the Council.

131 The horse yard primarily drains to the west onto Ms Bolitho’s property. However, the grade of the ground and the construction of the yard means that there is the possibility of drainage onto the bitumen on the right of way and around onto part of the adjoining property to the north, 55 Hilltop Road, where the occupants of 55 Hilltop Road park their car. Photographs have been tendered which show both during rainfall events and subsequently sediment and sawdust material on the right of way and on the ground where the car parking area is on 55 Hilltop Road.

132 The current regime for drainage is inadequate and should be improved. However, the proportionate response to the current inadequacies of the drainage of the yard is not to order that no horses be kept on the property at all but rather that steps be taken to adequately drain the yard and the premises.

(g) “Provision of waterproof and fly proof manure receptacle”

133 The Council asserts in its reasons for the s 124 order that the manure receptacle within the enclosure is not waterproof or fly proof. Ms Bolitho has given evidence that all manure is collected and bagged a number of times daily. The plastic bags are tied and sealed. The bags therefore form the manure receptacle. They are waterproof and fly proof.

134 There was an incident where Ms Bolitho stored temporarily bags of manure beside the fenced area and the right of way whilst they were awaiting collection. One or more of the bags apparently became untied. Neighbours complained about the bags being in that condition and at that location. However, Ms Bolitho has said that that practice has not continued. She now stores the bags of manure before they are removed on another location well inside her property and obscured from the neighbours’ view. Ms Bolitho’s evidence and the evidence of other persons who have given statements, including Ms Anderson and Mr Vidler, is that Ms Bolitho regularly removes the bagged manure from the property, at least once every seven days.

135 Accordingly, this provision is satisfied and does not provide a foundation for the order issued by the Council.

(h) “All manure to be removed from the yard and paved areas daily, and from the premises one [sic] at least in every seven consecutive days”.

136 The Council in its reasons for issuing the s 124 order asserted that “there is no evidence that all manure is being removed from the enclosure daily”. Ms Bolitho has given evidence that she removes manure from the fenced area and the carport at least daily, in fact, it is removed more than three times daily. The manure is collected and bagged in plastic bags which are tied and sealed. The bagged manure is removed from the premises at least once every seven consecutive days, according to both Ms Bolitho and persons who have used the manure, including Ms Anderson and Mr Vidler.

137 Accordingly, this provision of the Council’s Policy is being complied with by Ms Bolitho and it does not provide a foundation for the issue of an order under s 124 of the Local Government Act.

(i) “All feed receptacles to be vermin proof and fly proof”

138 The Council asserts in its reasons for issuing the order under s 124 that “the feed receptacle within the enclosure is not fly proof”. Ms Bolitho’s evidence is that feed receptacles are in plastic bins with fitted lids. The feed receptacles are both vermin proof (a point not contested by the Council) and fly proof.

139 On this evidence, this provision of the Council’s Policy is being complied with and does not provide a foundation for making of an order under s 124 of the Local Government Act.

(j) “Premises to be maintained free from nuisance, flies, vermin and offensive odour at all times”.

140 The Council sets out in its reasons for the issue of the s 124 order that the premises are not maintained “free from nuisance, flies and offensive odour at all times”. The Council does not assert that the premises have vermin. The assertion that the premises are not free from nuisance, flies and offensive odour, is the main basis for the complaints made by neighbours about the keeping of horses on Ms Bolitho’s property and for the Council’s subsequent action.

141 In relation to flies, there is considerable evidence that, especially during the hotter more humid months of January and February 2007, there were flies in and around the horse yard. The Council’s evidence does not establish, however, that the horses are the breeding source of the flies observed. Ms Bolitho tendered a statement by Associate Professor David Emery, an expert in veterinary immunoparasitology and entomology. Dr Emery noted on 5 March 2007 that the onset of recent rains and humid weather in the previous 1-2 weeks had caused fly populations to have increased around Sydney generally. The flies are the common housefly and not the biting stable fly which breeds on animal manure. The common housefly is able to travel well over one kilometre per day. Dr Emery notes that, therefore, no matter what deterrent or traps Ms Bolitho might use, there would be extra flies arriving. Dr Emery recommended that to prevent any local breeding in the horse enclosure, Ms Bolitho would need to remove all dung and change bedding weekly to ensure that fly lifecycles could not be completed if eggs were laid. Dr Emery noted that with the departure of the then current moist and humid conditions around late March the flies would go as well. Certainly, the number of flies has abated in subsequent months although not disappeared.

142 As I have noted earlier, Ms Bolitho’s evidence is that she undertakes a regular regime of removing manure many times daily and of bagging the manure to ensure that it is fly proof. Ms Bolitho also gave evidence that she washes the floor of the carport used by the horses with 75°C hot water and perfumed soap wash. She uses lime on the floor and places fresh wood shavings and straw on the floor. Any wet shavings are scooped up twice each day.

143 The Council did not call any evidence on this issue. It contented itself to calling evidence as to observations of flies.

144 In the circumstances, the Council has not established that the keeping of the horses is a relevant breeding source for the flies that have been observed.

145 In relation to odour, the Council has adduced significant evidence from the neighbours and to a lesser extent some observation by Council officers that odours associated with the manure and waste products have been experienced and have been found to be offensive. The odours particularly were experienced regularly and were found to be offensive throughout January 2007. In this period, Ms Bolitho had not carried out the works in relation to the fencing or the carport. It may also be that her practices in relation to the collection and storage of manure and cleaning were different to what she currently does. For example, I have noted earlier that Ms Bolitho had on one occasion bagged and stored the bagged manure next to the right of way near the boundary of 55 Hilltop Road. That seems to have been a source of odour and discomfort to the neighbours. Subsequently, Ms Bolitho has changed that practice and now stores the bagged manure well into her property and removed from sight of the neighbours. Ms Bolitho has also given evidence of her regular manure collection and bagging and cleaning of the carport regime.

146 There is also evidence that on many occasions no odour has been experienced. There were many inspections by Council officers, particularly Mr Ives, when he observed and recorded his observations that there were no offensive odours being experienced at the property. Many of the persons who have given witness statements tendered by Ms Bolitho speak of the fact that no odours have been experienced and certainly none that are unpleasant.

147 Nevertheless, I find on the evidence that odours which might be considered to be offensive have been experienced particularly by neighbours since the horses started being kept at the premises.

148 The issue is what is the appropriate and proportionate response to this problem. The Council’s (and the neighbours’) submission is that the response should be to prevent Ms Bolitho from ever keeping any horse on the property.

149 However, I am not satisfied that that is a proportionate response. The measures that Ms Bolitho is currently taking for the proper collection, bagging and removal of manure; the collection of wood shavings and straw soiled by waste products and their replacement with clean materials; and cleaning of the carport, if formalised, are an appropriate response to reducing sources of offensive odours. In addition, if appropriate measures to drain the premises are taken as set out earlier, which measures would include ensuring discharge in an appropriate manner and on to an appropriate place on Ms Bolitho’s property, such measures would also mitigate sources of offensive odour. The taking of such measures would also reduce a source of attraction for household flies from the geographical area.

150 Accordingly, although I find that the keeping of horses by Ms Bolitho on her property may not be in compliance with this last provision of the Council’s Policy in that, from time to time, there have been offensive odours emitted, this fact does not justify making an order that no horse ever be kept on the property. Instead, the proper order should be that Ms Bolitho take certain steps to reduce the likelihood of offensive odours being emitted from the property.

151 In conclusion, the evidence establishes that there are certain aspects of the manner in which Ms Bolitho has kept the horses on her property in the past which are inappropriate and ought to be improved. These aspects are, first, the completion of the fence and the installation of the double gate to allow vehicular access off the right of way and in front of the carport; second, the installation of an adequate system to drain the horse yard including appropriate disposal of waste water collected by the drainage system on Ms Bolitho’s property; and third, the formalisation of an appropriate management and cleaning regime for minimising sources of offensive odour. As I have noted, the appropriate order under s 124 to deal with these aspects is not for Ms Bolitho not to keep any horse on the property, but rather that Ms Bolitho take measures to deal with these aspects.

152 Because the Council in both its statutory orders and in its conduct of the case maintained that the only appropriate measure was for Ms Bolitho to not keep horses on the property, the Council has not adduced evidence on the appropriate measures that should be taken to address these aspects that I have identified as being inadequate as to the manner in which the horses are currently kept on the premises.

153 The Court is not prepared to grant the injunctive relief sought by the Council in its Class 4 Application in proceedings 40310 of 2007 because such orders go further than what is proportionate to the non-compliance that I have identified. Instead, the Court would be minded to make orders requiring Ms Bolitho to carry out appropriate measures which address the aspects of inadequacy that I have identified above.

154 It is appropriate that I give the parties the opportunity to adduce evidence (if any) and make submissions on the appropriate measures that should be taken, before the Court makes such orders. Accordingly, the Court will now ask the parties to address the options available for providing this assistance to the Court.

[The proceedings were adjourned to 22 June 2007 on which day the parties addressed on the appropriate orders and costs.]

155 During the course of the addresses by the parties, most of the differences in the parties’ respective draft orders were able to be agreed. The remaining difference concerned the Council’s contention that a new drainage system should be installed in the carport which would collect all liquid horse waste and pipe it to the Sydney Water sewerage network system. This would involve engineering and constructing effectively a new stable with a graded floor and drainage system. This goes beyond what is required in the circumstances and the relevant regulation and Council policy.

156 The current system, as I have described in the principal judgment, involves the collection, bagging and disposal of manure from the area used by the horses including the carport; the regular collection and disposal of the wood shavings and straw contaminated by urine or other horse waste in the carport; the washing of the floor of the carport with hot water and perfumed soap wash; the use of lime on the floor; and the placing of fresh shavings and straw on the floor. This is an adequate system for cleaning and maintaining the carport area used by the horses. It is not a proportionate response to replace this system with the engineering solution of collecting and disposing directly to the sewer, liquid horse waste. Instead, the current measures should be required to be continued by inclusion in the cleaning measures ordered by the Court.

Costs

157 In proceedings No 40311 of 2007 relating to the non-compliance with the order under s 121B of the Environmental Planning and Assessment Act and otherwise to an alleged breach of s 76A of that Act, I determined in the principal judgment that the Council has failed to establish that the Court should grant the relief sought in the Council’s Class 4 application in relation to any breach of the Environmental Planning and Assessment Act and, accordingly, the proceedings should be dismissed.

158 Ordinarily in Class 4 civil enforcement proceedings the usual exercise of the discretion under s 69(2) of the Land and Environment Court Act 1979 is that costs follow the event. This would mean that in proceedings no. 40311 of 2007, the Council being unsuccessful, should be ordered to pay Ms Bolitho’s costs.

159 Ms Bolitho was not legally represented and has not incurred professional legal costs in defending the Council’s action. Nevertheless, she has incurred some disbursements relating to expert reports (geotechnical reports and survey), photocopying and printing, telephone calls and freedom of information fees. Together, Ms Bolitho estimates these disbursements to total about $1050. The Council accepts that an order for costs in relation to these disbursements is appropriate. It also accepts that the Court should make an estimation of the costs rather than requiring a formal assessment. I accept the appropriateness of these disbursements and that a total amount of $1050 is reasonable. Ms Bolitho also claimed costs of travel to the Court to attend the hearing and delivery of judgment. The Council submits these costs should be disallowed, citing Cachia v Hanes (1994) 179 CLR 403 at 417. I agree and do not include these costs in the order.

160 Accordingly, the Court will order the Council to pay Ms Bolitho’s costs in the amount of $1050.

161 In proceedings No 40310 of 2007 relating to the non-compliance with the order under s 124 of the Local Government Act, I determined in the principal judgment that:

(a) all of the grounds upon which the Council relied to issue the order were not sustainable except for the ground that the horses were being kept inappropriately, in particular, that offensive odours had, from time to time, been emitted from the premises; and (b) a proportionate response to this inappropriate keeping of horses is not to require the permanent removal of the horses as sought in the Council’s Class 4 application, but rather to require the taking of measures to keep the horses in an appropriate manner such as installing adequate drainage of the horse areas and formalising the regime Ms Bolitho had already adopted for collection and disposal of horse wastes and cleaning of the horse area.

162 At no time did the Council ever order the taking of, or otherwise give Ms Bolitho the opportunity of taking, such measures to keep the horses in an appropriate manner. The Council’s intractable position was always that the horses should be removed permanently. Ms Bolitho’s evidence was that she had indicated to the Council her willingness to undertake the installation of appropriate drainage in the yard, complete the post and rail fence and erect the double gate and indeed she sought the Council’s guidance on these measures. The Council declined to assist. Had the Council pursued with Ms Bolitho the implementation of those measures for appropriately keeping the horses rather than requiring the removal of the horses, the proceedings may well not have been necessary. As I have noted above, when it came to settling the orders in relation to the measures for appropriately keeping the horses, there was no significant disagreement except as to one issue which was able to be shortly resolved.

163 The consequence is that the Council has largely been unsuccessful in the claim it made in its class 4 application. The Court will not grant the particular relief sought by the Council of permanent removal of the horses and has not upheld the particular grounds alleged by the Council that would be necessary to found that particular relief sought by the Council.

164 The mere fact that Ms Bolitho is in breach of the order under s 124 of the Local Government Act, and hence the Local Government Act itself, is not sufficient by itself to characterise the Council as having been successful in the litigation. In proceedings to civilly enforce a breach of a planning or environmental law, an applicant must not only prove the breach but must also obtain substantive relief: see Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd (1991) 74 LGRA 265 at 277-281 and Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd(No. 2) (1992) 75 LGRA 210 at 212 where the Court ordered the applicant to pay the respondents’ costs in circumstances where the Court found the respondents were in breach of the Environmental Planning and Assessment Act but declined in its discretion to grant substantive relief in relation to the established breach.

165 In this case, the Court is minded to grant some injunctive relief but not the relief sought by the applicant. In these circumstances, the appropriate order, in the exercise of the Court’s discretion, is to order each party to pay their own costs of the proceedings. This form of order takes into account both the fact that the Council has been largely unsuccessful (and hence it should not receive an award of costs in its favour) and the fact that Ms Bolitho has not succeeded in persuading the Court that there should be no substantive relief granted (and hence she should not receive an award of costs in her favour).

Orders

166 In proceedings No 40311 of 2007, the Court makes the following orders:

1. The proceedings are dismissed.

2. The applicant is to pay the respondent’s costs in the amount of $1050.

167 In proceedings No 40310 of 2007, the Court makes the following orders:

In these Orders:

“Property” means Lot A in Deposited Plan 415058, known as 57 Hilltop Road, Avalon.

“horse area” means the area on the Property used for the keeping of horses, including that part of the carport used for the shelter of horses.

Drainage

1. The respondent must install, within 45 days of the date of this Order, and thereafter maintain, in and around the horse area on the Property, a drainage system that is effective to prevent the escape from the horse area of any horse waste on to adjoining premises or the constructed driveway on the right of way running across the Property.

2. The respondent must, within 60 days of the date of this Order:


(a) install a double gate in the line of the fence adjacent to the right of way across the Property that is effective to permit vehicular access for two cars into the Property, and

(b) complete, by installing railings, the hardwood post and rail fence around the horse area,

and thereafter maintain the gate and fence in a usable condition.

Cleaning and Maintenance

3. The respondent shall take all reasonable steps to ensure that the horse area and the horses kept therein are maintained in a clean condition.

4. Without limiting the generality of Order 3, the respondent shall follow a regular cleaning and maintenance regime that is effective to:

(a) prevent the escape of horse waste on to the constructed driveway on the right of way running across the Property and/or on to adjoining premises; (b) collect all manure as soon as practicable and, if stored on the Property prior to disposal, store it in closed, fly-proof and waterproof receptacles away from the boundaries of adjoining premises and away from the right of way; (c) dispose of collected manure off-site within seven days of collection; (d) collect from the part of the carport used for the shelter of the horses, wood shavings, sawdust or other material contaminated by liquid horse waste and dispose of such material in a proper manner; and (e) clean the floor of the part of the carport used for the shelter of the horses.

5. Each party is to pay their own costs of the proceedings.

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