Warringah Council v Franks
[1999] NSWLEC 65
•03/19/1999
Land and Environment Court
of New South Wales
CITATION:
Warringah Council V Franks & Ors [1999] NSWLEC 65
PARTIES
APPLICANT
Warringah CouncilRESPONDENTS
Franks, P.
Welsh, P.
Antoun. R.
NUMBER:
40123 of 1997
CORAM:
Bignold J
KEY ISSUES:
:- declaratory and injunctive relief. Judicial discretion. Mandatory injunction disproportionate to nature of breach
LEGISLATION CITED:
declaratory and injunctive relief. Judicial discretion. Mandatory injunction disproportionate to nature of breach
DATES OF HEARING:
02/15/1999; 02/17/1999
DATE OF JUDGMENT DELIVERY:
03/19/1999
LEGAL REPRESENTATIVES:
APPLICANT:
Mr D. Wilson, BarristerSolicitors:
Wilshire WebbRESPONDENTS:
Solicitors:
In Person
N/A
JUDGMENT:
Introduction1. On 26 May 1997 the Applicant (the Council) commenced these Class 4 proceedings claiming a prohibitory injunction against each of the respondents restraining them from carrying out earthworks and the erection of a seawall on the land known as Nos. 2 and 2A Goodwin Street Narrabeen and on the adjoining Crown Reserve forming part of the Collaroy/Narrabeen beachfront, unless and until consent therefor had been obtained under the Environmental Planning and Assessment Act 1979 (the EP&A Act) and the Local Government Act 1993 and a mandatory injunction against each of them requiring them within 21 days to demolish the partially constructed rock boulder wall to remove the boulders and to reinstate the land upon which the wall was constructed.
2. The filing of the Class 4 proceedings (which also claimed interlocutory relief) had been preceded by the Council obtaining from the Court on 23 May 1997 an ex parte interim injunction against all three respondents requiring them “to forthwith cease carrying out earthworks including the construction of a rock boulder seawall” on the aforesaid properties.
3. On 19 May 1998 the Chief Judge delivered judgment in respect of Contempt Motions brought against the Respondents by the Council finding the First and Third Respondents to be each guilty of contempt of Court by virtue of their disobedience of the interim injunction. (The Contempt Motion brought against the Second Respondent was abandoned by the Council).
4. In her subsequent judgment on penalty delivered on 24 July 1998 the Chief Judge imposed a fine of $15,000 on the First Respondent and a fine of $5,000 on the Third Respondent. She also ordered the contemnors to pay the Council’s costs of the contempt proceedings (in the respective proportions of ¾ to ¼).
5. On 3 December 1998 the Council filed an amended class 4 application against each of the three Respondents. Although the amended application claimed the same prohibitory and mandatory injunctions as had been claimed in the original class 4 application, paragraph 3 sought the suspension of the mandatory injunction until December 2003 upon the following conditions:
“a) the Respondents by themselves and their agents and contractors keep, maintain and repair the rock boulder wall to the satisfaction of the Council, and
b) the Respondents provide security by deposit for guarantee to the Council for $33,500 urgent interim protection works including removal, reinstatement, repair or demolition o the rock boulder wall or any part thereof (such works to be determined in the absolute discretion of the Council) in respect of the rock boulder wall, the adjoining public beach or adjoining or nearby properties which may be affected by the rock boulder wall.”
6. Ancillary relief was also claimed in paragraphs 4 and 5 of the amended application.
7. When the amended class 4 application came on for hearing on 15 February 1999 the Council announced that its claims against the Second and Third Respondents had been settled and the Court, by consent, made orders against the Second and Third Respondents (a copy of each order being annexed hereto and marked respectively with the letters “A” and “B”).
8. The Court was informed that the Council maintained its claims against the First Respondent in respect of whom an open offer to settle the case had been made by the Council on 8 February 1999 in similar terms to the consent orders settled between the Council and the Second and Third Respondents (a copy of which draft orders is annexed hereto and marked with the letter “C”).
9. The First Respondent, who at this stage was no longer legally represented, thereupon asked the Court to entertain his adjournment application (notice of which he had given to the Council’s Solicitors the previous week). The application was supported by the affidavit sworn by the First Respondent on 15 February 1999. The Council opposed the adjournment application, but did not wish to cross examine the First Respondent on his affidavit which was read.
10. Following reception of the competing argument I adjourned the hearing to the third day of the fixture ie. 17 February 1999, in the anticipation that the parties would in the meantime attempt to resolve the case by entering into settlement negotiations.
11. Upon resumption of the hearing on 17 February 1999 the Court was informed that the parties had not engaged in any settlement negotiations but that the First Respondent had made an open offer of settlement in writing to the Council (which was declined), a copy of which is annexed hereto and marked with the letter “D”.
12. Upon resumption of the hearing the First Respondent who continued to be unrepresented informed the Court that he was willing and able to present his own case and that he wished the proceedings to be concluded.
13. Ultimately as will be seen presently, the only issue in dispute requiring adjudication concerns the proper exercise of the Court’s discretion to grant or to withhold the mandatory injunction claimed by the Council.
The Relevant Facts
14. On 10 and 11 May 1997, there was a significant storm event affecting extensive areas of the New South Wales coastline including the Narrabeen/Collaroy Beach.
15. In a report of the storm event prepared by the Department of Land and Water Conservation, damage to Collaroy/Narrabeen is described as follows:
“extensive erosion in Goodwin Street areas with some property damage and damage to dune fencing. Also, rock and gabion revetments which were placed during previous storm events have been exposed in this area.”
16. The Departmental Report concluded:
“Erosion of several beaches has left coastal development in a particularly vulnerable state. Continued storm activity over winter may result in damage to or loss of development or emergency works at a number of sites, the most likely being: Collaroy/Narrabeen, Bilgola, Wamberal, Jimmys Beach, Wooli and Belongil Spit. Relevant councils are being encouraged to develop and/or implement management plans to deal with the problem.”
17. During this storm event, the first Respondent (the owner of the property known as No. 2 Goodwin Street which is situated 10m from Goodwin Street where it terminates on the beachfront) contacted Mr Jack Hodgson, a practising civil, geotechnical and structural engineer. The latter thereafter visited the Respondent’s property observing that sand had been eroded from the beachfront and the surrounding properties leaving a steep escarpment. Mr Hodgson formed the opinion that “if some form of seawall was not urgently constructed in front of the property and the surrounding properties, sand would have continued to be eroded away and the front garden area of the properties would have eroded into the sea, the palm trees in the first Respondent’s garden would have collapsed and the surrounding houses would have been endangered.” (paragraph 3 of affidavit sworn 10 July 1998).
18. Following his inspection, Mr Hodgson spoke to the first Respondent’s contractor Robert Antoun (the third Respondent) and described to him a design for the seawall consisting of three layers of stone boulders.
19. During the construction of the seawall by Mr Antoun in the days that followed, Mr Hodgson frequently inspected the construction process.
20. In his affidavit, he describes in detail the completed seawall (paragraph 7) and provides his opinions that the seawall is stable and has a high factor of safety as a retaining wall supporting the sand under the properties and with no tendency to tilt forward” (paragraph 8) and that further erosion caused by storm events which may occur to a depth of RL - 1.0A.H.D. would be accommodated by the seawall by the process of settlement which might eventually require the boulder wall to be topped up to maintain the desired crest height (paragraph 9).
21. The facts concerning the circumstances in which the Respondent caused the seawall to be erected as recorded at pp.3 and 4 of the Chief Judge’s judgment on the Contempt Motions brought against the Respondents are as follows:
“10-11 May 1997:
During the night, there was a significant storm in the Narrabeen/Collaroy beach area
12 May 1997:
Mr Franks telephoned Mr Len Thompson, general manager of the council, to complain that the storm had caused damage to his property.
14 May 1997:
Mr Franks engaged Mr Antoun to carry out work on the site.
16 May 1997:
Mr Antoun arranged material and machinery to carry out the work.
17 May 1997:
Work commenced.”
19 May 1997:
Mr Stewart Cook, a council officer, visited the site and observed machinery on the site and works occurring.
20 May 1997:
Mr Cook, Mr Hudson and other council staff visited the site. Mr Cook spoke to Mr Antoun and asked him to stop work. Mr Antoun said that was a matter for Mr Franks as the owner of the site. Mr Franks arrived at the site and told Mr Cook and the persons accompanying him to leave the site.
In the afternoon, Mr Franks attended an appointment with Mr Raymond Kent, director-service group, at the council. Mr Kent asked Mr Franks to stop work on the site pending a meeting on the site arranged for the following day. Mr Franks agreed to stop work.
21 May 1997:
Mr Franks, Mr Kent and other persons met at the site. There was a discussion about the respective responsibilities of the council and the Department of Land and Water Conservation, and about the lodgment of a development application.
22 May 1997:
Mr Cook inspected the site at about 8:30am and saw that no work was being carried out.
The council’s solicitors wrote to Mr Franks’ solicitors seeking, amongst other things, an undertaking not to carry out work on the site until development approval and building approval had been obtained, and notifying their instructions to seek an ex parte injunction if work recommenced. According to the transmission report, that letter was sent by fax at 13:56pm.
23 May 1997:
Work recommenced on the site (at about 1:30pm, according to Mr Antoun) and continued under floodlights until approximately 11:00 pm.
22. The seawall is some 60m in length extending across the combined widths of the three residential lots (including the first Respondent’s land) immediately to the south of Goodwin Street. The average depth of the seawall is 10m and its maximum height is 6m. It is entirely covered by sand and so covered, has the appearance of a sand dune.
23. There was in evidence a number of expert opinions concerning the engineering qualities of the seawall.
24. Supporting Mr Hodgson’s opinion that I have earlier referred to, is the opinion of Mr Christopher Miller, a practising engineer specialising in coastal and marine engineering, environmental studies, hydrology and hydrodynamics.
25. Opposing opinions are expressed in the affidavits of Mr Gregory Davis, a coastal engineer employed in the Department of Land and Water Conservation and by Mr Greg Britton, a practising engineer specialising in coastal, maritime and environmental engineering.
26. I should, at this point note that none of the expert witnesses were cross-examined. I should also note that I allowed the first Respondent to read the affidavits of Mr Hodgson and Mr Miller, over the Council’s objection on account of their not being available for required cross-examination. I took the course of granting leave pursuant to Part 38 Rule 9(3) of the Supreme Court Rules (adopted by the Rules of this Court) because (i) the first Respondent was no longer represented and had not appreciated the legal significance of the Council’s notice requiring the deponents to be available for cross-examination, (ii) the first Respondent did not have the financial wherewithal to retain the experts for attendance at the hearing (iii) the manifest prejudice to the Respondent’s case, if he were to be denied the benefit of the affidavits of the experts which had been filed in Court some eight months earlier in the proceedings; and (iv) the fact that the Council’s experts were not themselves to be made available to the Court.
27. Mr Davis inspected the seawall during its construction in May 1997. In his opinion, “the wall has not been constructed in accordance with accepted coastal engineering standards” (paragraph 7 of his affidavit).
28. Mr Britton also inspected the seawall during the course of its construction in May 1997. He too was of the opinion that the wall “does not conform with accepted coastal engineering practice for seawall structures on the open coast” (paragraph 12 of his affidavit). He opines that “over time, the wall will suffer damage, principally in the form of excessive total and differential settlement of the wall and loss of sand from behind the wall”.
29. He also expresses the opinion that being an “isolated seawall”, it will cause increased erosion (“end effects”) of neighbouring properties, including the land forming the termination of Goodwin Street.
30. In a later affidavit, Mr Britton modifies his opinion concerning his prognostication of damage to neighbouring properties by “end effects” erosion caused by the fact that the subject seawall is “isolated”. For example, he states that “properties along Collaroy/Narrabeen beach (including the Respondent’s property) would have been subjected to increased erosion risk due to the end effects of existing walls (comprising dumped rock) occurring in the late 1960’s and 1970s”.
31. He also states that it is difficult to say that any suggested increased erosion risk caused to neighbouring properties of the subject seawall “will ever be reached in practice”.
32. In any event, he suggests that while the seawall remains in place, an “emergency response strategy” should be adopted by the Council and he provides a cost estimate of the contemplated emergency response actions. (It is his cost estimates that form the basis for the financial obligations imposed on the second and third Respondents in the consent orders made against them.)
33. The preponderance of the expert opinion, which I accept, is that the seawall, in its present condition, does not pose a public danger as it has been soundly constructed and will provide a measure of protection against damage by the sea to the properties on the landward side of the wall. While it remains in place, it will generally not be observed because it will be generally covered by sand. It does present a risk of erosion of neighbouring properties by virtue of “end effects” erosion but realisation of this risk is not readily ascertainable or predictable.
34. In addition to the expert engineering opinion evidence, there is considerable documentary evidence concerning the development, at State and Local Government levels, of a Management Plan for Coastline Hazards for Collaroy/Narrabeen beach. This evidence includes the Coastline Management Plan for Collaroy/Narrabeen adopted by the Council in August 1997 (Exhibit 3) after a number of years of public and community consultation.
35. That Plan recognises the long history of storm coastal erosion damage experienced by Collaroy/Narrabeen Beaches and beachfront properties with its ranking as the third most at risk area in Australia of damage by coastal processes.
36. The Plan adopts a number of management strategies, including in the first phase (due for completion in 1998) a survey and assessment of existing seawalls.
37. A subsequent Management Strategy (Action A-2) contemplates completion in 2001/2002 of preparatory action for the selective reconstruction of existing seawalls and filling gaps in existing seawalls.
38. The ultimate reconstruction of the seawalls is scheduled for commencement in 2003. (It is this programmed date that has been factored into the consent orders made against the second and third Respondents.)
39. Preliminary costs estimates for the seawall upgrading are noted to be $10.9 million and sources of funding are noted to include defraying some 50 per centum of overall costs by special levies imposed on affected beachfront owners.
40. At the time of hearing the present case, the Council had not yet considered a report that it had commissioned in February 1998 from the Manly Hydraulics Laboratory of the NSW Department of Public Works for a detailed survey of the existing seawalls located in the Study Area (comprising Precincts 2 and 3 of the Council’s Coastline Management Plan, being the coastal strip situate between Devitt Street, South Narrabeen and Birdwood Avenue, Collaroy).
41. The Council’s commissioned brief included the following statements:
“Collaroy Narrabeen shoreline has a history of storm damage and property losses, especially in the last 50 years. More severe storm damage was prevented by the emergency dumping of thousands of tonnes of fill and rock over the years. In 1967 and 1974 Council and individual land owners, in response to major storm activity, constructed rock sea walls in an effort to reduce the impact of erosion on back beach developments. The sea walls are located at Collaroy Beach and the southern end of Narrabeen.
The formation of sea walls, however, due to the urgency of installation, was not based on an engineered concept. Warringah Council is concerned about structural integrity of the walls in their present configuration. Partial collapse/scour of the sea walls from coastal processes has been observed on a number of occasions.
Warringah Council has recently adopted a Coastline Management Plan to provide a sound basis for current and future management of coastal hazards affecting Collaroy Narrabeen Beach and adjacent reserves and residential areas. The plan consists of undertaking a number of protective works, environmental planning measures, development control conditions and dune management works for different precincts of the beach over a period of time. The first task of the management plan is to undertake survey and assessment of the existing sea walls.”
42. The draft Report (dated December 1998) prepared by Manly Hydraulics Laboratory was tendered in evidence (Exhibit 10).
43. According to the affidavit of Craig Tucker sworn 16 February 1999, the Draft Report was considered by the Council’s Coastal Management Committee (comprising local Councillors, State Government representatives and community representatives) on 11 February 1999. Mr Tucker expects the final Report from the Manly Hydraulics Laboratory will be considered by the Council’s Coastal Management Committee early in April 1999 with the prospect of consideration by the Council towards the end of April.
44. In paragraph 4 of his affidavit, Mr Tucker states that the “draft report concludes from the survey work carried out on the “walls” along the Collaroy/Narrabeen Beach (including the wall the subject of these proceedings) that these existing walls are all in inadequate and that they could not be incorporated into a wall to be constructed by the Council”.
45. Unfortunately, I have not been able to find these “conclusions” in the text of the Draft Report (Exhibit 10). (It is, of course, possible that there is another version of the draft report and it is that other version that Mr Tucker is referring to. However, as far as I can see, the draft Report that is in evidence does not express the conclusions attributed to it by Mr Tucker.)
46. In Section 5 “Conclusions” the draft Report includes the following statements:
“This has been confirmed from the field inspection of the existing structures undertaken for this investigation. While a continuous tipped rock seawall is present over virtually the whole beach front from Devitt Street to Jenkins Street, the nature and construction of the seawall is extremely variable. In all cases the revetment which exists is not satisfactory to satisfy current design standards and could not be certified by a qualified coastal engineer as providing adequate protection to development behind the beach”
“The existing revetments are not adequate to secure the future of beach front development through the study area. The design section and alignment presented are intended as typical designs. Careful consideration of the final alignment in particular is required prior to any commitment to a detailed design. The likely impact of an upgraded structure on the present and future beach amenity must be thoroughly considered and understood by the local community.”
47. On the prospect of utilising the existing sea walls, the draft Report includes the following passages (which are inconsistent with Mr Tucker’s attributed conclusion):
“A preliminary design section for an upgraded seawall at Narrabeen/Collaroy Beach has been prepared. The design is for a conventional rock revetment using readily available sandstone armour stone, similar to that provided recently for emergency remedial works adjacent to Wetherill Street. This design provides some flexibility in comparison to a rigid (concrete or pile structure) or a revetment employing pattern placed proprietary armour units. The opportunity is there to reuse sections of the existing revetments with a consequent saving in cost to the overall structure. Depending on the location, nature and extent of the existing wall this could comprise simply trimming the existing face material to provide a suitable sub-strate for placement of the primary armour stone, or salvage and reuse of suitable existing armour stones in the final design. The extent of reuse possible and the additional filing requirements (to reach the required alignment) will be determined by the final revetment alignment selected. A preliminary recommendation on the alignment is included in Section 4.”
………
………
………
“The nature of in-situ materials and their suitability for recycling in an upgraded sea wall design is varied throughout the study area. It is estimated that little of this material would be suitable for use in the primary armour layer of an upgraded sea wall, with at maximum about 10% of the primary armour layer being sourced from in-situ rock. However, existing material will be able to be used within the secondary armour layer in varying quantities at different locations along the beach.”
48. Another fact to be noted concerns the dumping by the Council of some 3,000 tonnes of rock on the Collaroy beachfront between Wetherill and Stuart Streets as an emergency response to a storm event occurring in August 1998. (Those rocks are located some 400m south of the subject seawall.) The first Respondent obtained an engineering opinion from Mr Miller comparing the seawall that the first Respondent had constructed and the seawall formed by the deposition of rocks and boulders on the beachfront between Wetherill and Stuart Streets. Mr Miller’s written opinion (which is annexed to Mr Frank’s affidavit sworn on 15 February 1999) was that the seawall caused to be constructed by the first Respondent had been constructed to a higher standard. The report also noted that the storm event experienced in August 1998 had not caused any damage to the seawall constructed by the first Respondent.
49. Two further facts are to be noted. The first concerns the nature of the existing residential development on the first Respondent’s land and on the adjoining lot owned by Mr Welsh. Each lot is developed by a dual occupancy residential development. The first Respondent, who is a property developer, estimates the value of each of the adjoining lots in the order of $1.5 million. Whereas he is not qualified to give evidence of value, I would hold that the residential developments on each of the first Respondent’s lot and Mr Welsh’s adjoining lot are obviously of considerable value, not only because of the extent and condition of the developments, but because of their beachfront locations.
50. The other fact to be noted concerns the first Respondent’s attempt to obtain ex post facto consent from the Council for the seawall. In this respect, on 11 January 1999, he lodged a development application with the Council for the retention of the seawall. On 9 February 1999, the Council notified the first Respondent that his application had been refused for the following reasons (none of which involves an appraisal on the planning merits of the proposal):
“1. Pursuant to the provisions of the Environmental Planning and Assessment Act the application is incomplete as consent has not been submitted on the land on which the development is situated.
2. Pursuant to the provisions of the Environmental Planning and Assessment Act the proposed development is considered prohibited on land zoned 6(a) Existing Recreation under Warringah Local Environmental Plan 1985.
3. Pursuant to the provisions of the Environmental Planning and Assessment Act Council does not have the power to issue a retrospective approval for works already carried out.”
The Exercise of the Court's Discretion
51. It is well established that the Court has a very wide and salutary discretion to grant or to withhold the mandatory injunctive relief claimed in respect of a breach of the EP&A Act: see Warringah Shire Council v. Sedevcic (1987) 10NSWLR 335.
52. As I have earlier noted, it is not in dispute that the erection of the seawall involved a breach of the EP&A Act. More precisely, the relevant breach in the present case was the carrying out of development (being the erection of the seawall) without the consent of the Council as required by the Warringah Local Environmental Plan 1985 (the LEP). Such a conclusion is premised upon the fact that the erection of the seawall involved the carrying out of development “for the purposes of recreation areas” within the meaning of cl.9 of the LEP insofar as it applies to Zone No. 6(a) (Existing Recreation) which is the relevant zoning designated by the LEP for the Collaroy/Narrabeen beach areas.
53. I note that this conclusion is contrary to the view expressed by the Council in its notification to the first Respondent refusing his recent development application. That view was that the development was for a “prohibited” purpose within the Zone No. 6(a).
54. In my judgment, the Council’s contrary opinion is untenable, and as I pointed out in the course of argument, it would be quite extraordinary if seawalls and similar developments, designed to protect and enhance the beachfronts, were “prohibited” purposes of development on beachfront lands within the Council’s area.
55. The circumstances concerning the commission of the breach have been earlier noted. They obviously involved an emergency situation where a severe and significant storm was causing damage to the beachfront and posing a significant threat to the first Respondent’s land and to neighbouring lands. During the course of the storm, the first Respondent obtained the professional opinion of Mr Hodgson, which was to the effect that there was an urgent need to protect the first Respondent’s land by the erection of a seawall. This was done, originally only after contact had been made with the Council, but where discussions broke down and thereafter, the first Respondent caused the seawall to be completed (the finishing stages being undertaken despite the existence of the interim injunction in circumstances outlined in the Chief Judge’s judgment on the Council’s contempt Motions against the Respondents).
56. Putting aside the circumstances concerning the disobedience of the interim injunction (which are concluded by the Chief Judge’s earlier judgment), the first Respondent in so acting to protect his property, was doing no more than what other beachfront owners had apparently done to protect their properties from damage by avulsion by the sea during the significant storm events experienced at Collaroy/Narrabeen beaches in the 1960s and 1970’s. Indeed, the Council itself was to act in similar emergency fashion in August 1998 when it took protective action in respect of beachfront properties located between Wetherill and Stuart Streets that I have earlier mentioned. I infer that all such emergency actions were undertaken without regard to the relevant planning law.
57. In my opinion, the first Respondent’s action in causing the erection of the seawall in emergency conditions in order to protect his valuable property, cannot reasonably be regarded as reprehensible conduct or conduct flouting the Council’s authority under environmental planning laws or conduct calculated to cause, or causing, public injury. In so acting in such circumstances, I do not consider the first Respondent to be subjectively morally culpable to any significant degree. His wrongful action, was to fail to obtain the requisite development consent from the Council Yet the fate of his ex post facto development application suggests that the Council probably would not have granted the application in any event. (I emphasise that all my findings in this respect are to be understood as being independent of the Court’s earlier finding of contempt of Court committed by the first Respondent.)
58. In terms of objective environmental consequences, the erection of the seawall has not caused environmental harm to the beachfront, visually, aesthetically or otherwise.
59. Nonetheless the evidence raises some doubt concerning the effectiveness of the seawall in terms of its coastal engineering qualities and in terms of its capability of providing protection from coastal hazards of beach and land erosion and avulsion by the sea.
60. However, there is no basis for concluding that the seawall presents any immediate or foreseeable public danger or that its stability is immediately at risk.
61. Moreover, my evaluation of the expert evidence adduced by the Council in criticism of the coastal engineering qualities or deficiencies of the seawall is that it is primarily directed to the long term solutions for contemplated coastal hazards protection for the entire beachfront of Collaroy and Narrabeen. In other words, the expert opinions adduced by the Council in relation to the seawall tend to be influenced or subsumed by the wider picture presented by the Council’s Coastline Management Plan addressing the entire beachfront of Collaroy/Narrabeen.
62. Placed in this wider context, it is, in my opinion, extremely difficult to justify the remedial action sought by the Council in these proceedings in respect of the seawall caused to be erected by the first Respondent. In objective terms, the circumstances in which this seawall came into existence, namely in emergency circumstances, is indistinguishable from the circumstances in which most of the seawall constructions along the entire Collaroy/Narrabeen beachfront have come into existence. Even in subjective terms, what the Respondent did in causing the seawall to be erected (and is to be held responsible for) appears to be indistinguishable from what other beachfront land owners have done over the past decades to protect their valuable properties from storm damage caused by the sea, inasmuch that in the emergency conditions then prevailing, seawalls have been erected without regard to the relevant planning laws.
63. In my judgment, to grant the Council’s claim in its amended class 4 application to a mandatory injunction requiring the immediate removal of the seawall would involve a manifestly disproportionate remedy for the admitted breach of the EP&A Act, and may involve an outcome that is unintended (namely the restoration of the beachfront to its threatened and damaged state caused the storm which prompted the first Respondent to cause the seawall to be erected).
64. In this respect, it is to be recalled that the Respondent’s attempt to obtain ex post facto consent to the seawall has recently been rejected by the Council on grounds that did not engage the Council in any appraisal on the planning merits of the proposal that the seawall be retained. Moreover, the Council’s response to the Respondent’s development application effectively ousts the opportunity for the exercise in the present case of the separate discretion conferred by s.124(3) of the EP&A Act.
65. The erection of the seawall without the requisite development consent involves a breach of the EP&A Act in respect of which public detriment is presumed in law to result. However, in the absence of demonstrated environmental damage and in the light of my findings on (i) the circumstances in which the breach was committed; and (ii) the engineering nature of the seawall, leads me to conclude that a case for mandatory relief has not been substantiated.
66. My conclusion that in the exercise of discretion I should decline to grant the mandatory injunction claimed in the Council’s amended class 4 application means that it is not necessary to consider the appropriateness of the solution proffered in the Council’s “consent orders” (which, as noted earlier, have been accepted by the second and third Respondents). However, even if the relief therein formulated were to be considered in respect of the first Respondent (who does not accept the consent orders), I am not persuaded by the evidence (i) that the seawall caused to be constructed by the first Respondent will ultimately require demolition and rebuilding as part of the Council’s implementation of any initiatives contemplated by its Coastline Management Plan, or (ii) if rebuilding is ultimately to be undertaken that the materials of the subject seawall will not be adapted in whole or part. In any event, any such contemplated future remedial action will require massive public funding and at least, at this stage, contemplates levying special rates on beachfront land owners to raise 50% of the anticipated costs. In this context, it would appear to me to be unduly burdensome on the first Respondent to now require of him additional payments or the provision of financial security for future payments. In this respect, I do not think my conclusion can be affected by the fact that the second and third Respondents have accepted the Council’s suggested consent orders.
67. For similar reasons, my conclusions as to how to exercise the judicial discretion in the present case means that it is not necessary or appropriate for me to consider the first Respondent’s settlement proposal which contemplated further works being undertaken to the seawall to eliminate the possibility of “end effects” erosion of land situate to the north of the seawall. That proposal contemplated development consent being granted for such works. My decision in these proceedings does not preclude the parties from taking any such action in the future.
68. Finally, it is not to be forgotten that the seawall in the present case, has been erected on the beachfront, comprising a public reserve, the care, control and management of which is vested in the Council. In that capacity, the Council has other options in relation to the continuing existence of the seawall, quite apart from the mandatory injunction remedy it claims under the EP&A Act, which for all the foregoing reasons, in my opinion should be declined in the exercise of the discretion vested in the Court under s.124(1) of the EP&A Act.
Conclusions and Orders
69. For all the foregoing reasons, I make the following orders:
1. Proceedings against First Respondent be dismissed.
2. Proceedings against the second and third Respondents be concluded by the consent orders made on 15 February 1999 in accordance with Annexures A and B respectively.
3. No order as to costs in the proceedings against the first Respondent.
4. Exhibits be returned.
I HEREBY CERTIFY THAT THIS AND THE PRECEDING 24 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF HIS HONOUR MR JUSTICE N R BIGNOLD.
Associate
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