Warringah Council v Franks - [1999] NSWLEC 65

Land and Environment Court

of New South Wales

CITATION:

Warringah Council V Franks & Ors [1999] NSWLEC 65

PARTIES

APPLICANT
Warringah Council

RESPONDENTS
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, Barrister
Solicitors:
Wilshire Webb
RESPONDENTS:
In Person
Solicitors:
N/A

JUDGMENT:

Introduction

1. 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] NSWLEC 65
Decision Date: 03/19/1999

CaseChat Overview and Summary

The Land and Environment Court of New South Wales dealt with a case brought by Warringah Council against Franks, P. Welsh, and Antoun, R. The Council sought declaratory and injunctive relief due to the unauthorized erection of a seawall by the respondents on beachfront land. The central legal issue was whether the court should exercise its discretion to grant the mandatory injunction sought by the Council, considering the nature of the breach and the disproportionate impact of such an injunction.

The court considered the circumstances of the seawall's construction, which was erected in response to a severe storm that threatened the beachfront properties. The court acknowledged that while the erection of the seawall constituted a breach of the Environmental Planning and Assessment Act 1979, it was done in emergency conditions without malicious intent and did not result in immediate environmental harm. The court also noted the similar actions taken by other beachfront owners in the past and the council's own emergency measures.

In exercising its discretion, the court found that granting the mandatory injunction sought by the Council would be manifestly disproportionate to the breach committed. The court emphasized that the seawall, while potentially deficient in the long term, did not pose an immediate public danger or risk of collapse. Additionally, the court observed that the council had rejected an ex post facto development application for the seawall without considering its merits, effectively limiting the Council's discretion under the Act.

Consequently, the court declined to grant the mandatory injunction, concluding that it would not be an appropriate remedy in these circumstances. The court dismissed the proceedings against the first respondent and concluded the proceedings against the other respondents based on consent orders previously made. No costs order was made against the first respondent, and the exhibits were ordered to be returned.

Orders