Wilkie v Blacktown City Council

[2002] NSWCA 284

Reported Decision: (2002) 121 LGERA 444

New South Wales

Court of Appeal

CITATION:	Wilkie v Blacktown City Council & 3 Ors [2002] NSWCA 284
FILE NUMBER(S):	CA 41026/01
HEARING DATE(S):	14/08/02
JUDGMENT DATE:	30 August 2002
PARTIES :	Misty Wilkie (Appellant) Blacktown City Council (First Respondent) Mark Reid (Second Respondent) Graveyard Recycling Pty Ltd (Third Respondent) Mario Constantine (Fourth Respondent)
JUDGMENT OF:	Heydon JA at 1; Young CJ in Eq at 2; Davies AJA at 15

LOWER COURT JURISDICTION :	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	LEC 40025/01
LOWER COURT JUDICIAL OFFICER :	Pearlman CJ

COUNSEL:	T F Robertson SC/L M Byrne (Appellant) M G Craig QC/D R Parry (First Respondent) N/A (Second & Third Respondents) J S Wheelhouse (Fourth Respondent)
SOLICITORS:	Roderick Storie (Appellant) Houston Dearn O'Connor (First Respondent) Dennis & Co (Second & Third Respondents) Delaney Lawyers (Fourth Respondent)
CATCHWORDS:	LOCAL GOVERNMENT - Town Planning - Breach of Planning Instrument - Whether s 124 of the Environment Planning and Assessment Act authorised a rectification order directed to a person who was not a party to the breach - Permitted or suffered - whether these terms provide a sufficient basis for a rectification order - whether the power granted by s 124 is unlimited once a breach has been established. D
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, ss 76A(1), 76(3), 121B, 122, 123, 124 Trade Practices Act 1974 (Cth), s 75B Fair Trading Act 1987, s 61 Corporations Act, s 79 Land and Environment Court Act 1979, s 55
CASES CITED:	Giorgianni v The Queen (1985) 156 CLR 473 Yorke v Lucas (1985) 158 CLR 661 Ashfield Municipal Council v Andrews (1986) 60 LGRA 248 Macquarie University v Ryde Municipal Council [1977] 1 NSWLR 304 Minister Administering The Crown Lands Act v New South Wales Aboriginal Council (1977) 42 NSWLR 641 Holroyd City Council v Murdoch (1994) 82 LGERA 197 Parramatta City Council v Stonewill Pty Ltd (Land & Environment Court, 22 February 1991, unreported) Botany Council v Tsolakis (Land & Environment Court, 30 November 1988, unreported) Murdoch v Hollroyd City Council (NSWCA, 20 November 1996, unreported) Albury City Council v Maxwell (Land & Environment Court, 3 September 1988, unreported) Sydney City Council v Zizza [1999] NSWLEC 25 Sahade v Mosman Municipal Council [2000] NSWCA 251 WD & HO Wills (Australia) Ltd v State Rail Authority of NSW (1998) 43 NSWLR 338 Harris v James (1876) 45 LJ QB 545 Smith v Scott [1973] Ch 314 Wright and Romeyko v Corporation of City of West Torrent (1996) 91 LGERA 197 Rochford Rural District Council v Port of London Authority [1914] 2 KB 916 Barton v Reed [1932] 1 Ch 362
DECISION:	See paragraph 69.

CA 41026/01
LEC 40025/01

HEYDON JA
YOUNG CJ in EQ
DAVIES AJA

Friday 30 August 2002

MISTY WILKIE v BLACKTOWN CITY COUNCIL & 3 ORS

Judgment

1 HEYDON JA: I agree with Davies AJA.

2 YOUNG CJ in EQ: I agree with the reasons of Davies AJA which I have read in draft. I should make a few additional comments.

3 It was most singular that in so many of the cases cited to us on the property construction of s 124 of the EPA decided in the Land and Environment Court, nowhere near a complete conspectus of the previous cases were cited. In particular there is virtually no mention of the Court of Appeal's decision in Murdoch v Holroyd City Council, 20.11.1996.

4 The Land and Environment Court is a court with a limited ambit. I would have hoped that counsel before it would always present the Court with a full view of the applicable authorities. This should include the results of research as to whether any cases cited to the Court have been considered on appeal.

5 If Davies AJA's analysis of s 124 was incorrect (which it is not), there would be great difficulty in mapping the limits of its operation.

6 Her Honour found liability in Ms Wilkie because she "permitted or suffered" the site to be used in breach of the EPA Act. However the other cases to which we were referred employ various other terms all of which are similar, but which have different shades of meaning.

7 In Holroyd City Council v Murdoch (1994) 82 LGERA 197, Stein J seems to have found liability because the landowner knew or was made aware of the situation and took no steps to prevent its recurrence.

8 In Wright v West Torrens Corp (1996) 91 LGERA 197, the South Australian Full Supreme Court found that a landlord was liable for suffering an illegal use because he had power to prevent it and did not exercise that power. The Queensland Court of Appeal declined to follow that approach in Evans v Accident Insurance Mutual Holdings Ltd [1998] 2 Qd R 350. However "fails to prevent" recurred in Sahade v Mosman MC [2000] NSWCA 251.

9 Other sets of words that crop up in this connection are "acquiesces in" or "aids and abets"; see eg Ex parte Parker; Re Brotherson (1956) 57 SR (NSW) 326.

10 In Rochford RDC v Port of London Authority [1914] 2 KB 916, the words in the statute under consideration were "caused or suffered".

11 In the classic law of illegal and immoral contracts, the test was did the plaintiff contribute to the performance of the illegal act with knowledge: Pearce v Brooks (1866) LR 1 Ex 213, 217.

12 Statutes such as s 75B of the Trade Practices Act 1974 (Comm) employ the term "involved in a contravention".

13 It is idle to multiply further examples.

14 In view of these varieties of slightly different tests it is to my mind extremely difficult to attribute to the legislature an intention that one of them should apply.

15 DAVIES AJA: This is an appeal from a judgment of the Chief Judge of the Land and Environment Court, Pearlman J. Her Honour was considering Class 4 proceedings which the first respondent, the Blacktown City Council (“the Council”) had commenced against Ms Wilkie, the present appellant, and Mark Reid and Graveyard Recycling Pty Ltd (“Graveyard Recycling”) the second and third respondents. The fourth respondent, Mario Constantine, had been joined as a fourth respondent upon the application of Ms Wilkie.

16 Her Honour described the substance of the Council’s claim as follows:

“The council seeks a declaration that the four respondents have each carried out or permitted or suffered to be carried out development for the purposes of a tip, waste management facility, garbage depot, recycling yard or like use contrary to the provisions of the Environmental Planning and Assessment Act 1979 (‘the EP & A Act’). As against all four respondents the Council seeks orders that they:
(i) Cease using or causing, permitting or allowing the use of the site for that specified purpose;
(ii) Be restrained from causing, permitting or allowing the bringing of any soil, sand, gravel, bricks, other excavated or hard material or demolition material or any other waste on to the site; and
(iii) Remove from the site the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste presently situated on the site and have it transferred to a licensed waste management facility.”

17 The subject land was Lot 2 in DP 781151, which was situated at the corner of Grange Avenue and Richmond Road, Marsden Park. The trial Judge described the relevant development consent as follows:

“Mr Stockbridge’s investigation of the council’s records revealed the existence of only two development consents for the whole of lot 2. Only one is of relevance. It is dated 11 May 1988, and numbered 006798. It authorised the use of the land of which the site forms part for ‘dwelling and landscape supply business’. Condition 15 of that consent provided that the development was to be carried out in accordance with a letter submitted with the development application. The relevant letter contained a statement that the materials to be taken to the site were to be ‘sand, soils, compost etc’. Condition 17 provided, relevantly, that ‘[m]aterials stored on the site shall be limited to sands, soil, compost and other landscape supplies’. The notice of determination of that consent contains a notation that it was amended, and the amendment appears in a letter to the then owners dated 15 February 1989. The development for which consent had been granted was altered to ‘dwelling and plant nursery’, that latter term being defined to mean ‘…a building or place used for the growing or selling of plants, whether or not landscape supplies are sold on the premises.”

18 The owner of the land was Mr Constantine. He leased part of Lot 2 in Ms Wilkie. The permitted use under the lease was:

“Sales of Pools & Spas and sale of soil and sand.”

Ms Wilkie subleased part of the land to Mr Reid. The permitted use under the sublease was use as a:

“sand and soil yard.”

It was not contended by the Council that either of these uses would have contravened the consent.

19 Mr Reid and Graveyard Recycling in fact used the land the subject of the sublease as a tip and recycling yard, although in the course of that business they obtained and sold soil and sand.

20 Ultimately, the amount of material dumped on the site constituted a mountain of waste. The trial judge said:

“There is no completely reliable estimate of the size of the waste material presently on the site. On his inspection on 7 May 2001, Dr Pells estimated that it was about 7 metres in height. Mr Lee, who is an environmental scientist in the employ of the Environment Protection Authority (‘EPA’), inspected the site on the same day and estimated the height as ‘6 metres above the wall’. Mr Sheehy’s estimate on 23 March 2001 was 7 to 9 metres in height. Mr Constantine’s estimate was 12 to 15 metres. As to volume, Mr S A Borg estimated 5 to 10 tonnes of waste material were on the site when he inspected it on 8 December 2000, and he considered that the volume had increased ‘upwards of 100 tonnes’ by early February 2001. I point out at this stage that Mr Borg is an environmental investigation officer in the employ of the Regional Illegal Dumping Squad (‘RIDS’). That squad is a joint venture between the EPA, the Western Sydney Waste Board a number of councils in the western region of Sydney, including Blacktown City Council. I shall return in some detail later as to the circumstances surrounding Mr Borg’s investigation of the site.
It is unnecessary to be precise about the height or volume of the waste material. It is clearly a large volume, and that is corroborated by the photographs tendered in evidence, which show a mountain of waste rising from ground level on the site.”

21 The trial Judge held that the use of the site for the deposit of waste materials was not within the description of use authorised by the development consent and that the use constituted a breach of s 76A(1) of the Environmental Planning and Assessment Act 1979 (“the EPA Act”) which provides:

“76A(1) If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.”

22 The issue which was debated below and in this appeal concerns remedial orders under s 124 of the EPA Act.

23 The trial Judge held that that Mr Reid and Graveyard Recycling had breached s 76A(1) of the EPA Act. She granted an injunction against the continuation of the unlawful use and held that a rectification order should be made. The rectification order made in respect of Mr Reid and Graveyard Recycling provided that:

“(5) ”The Second Respondent and the Third Respondent remove from the site the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste presently situated on the site and have it transferred to a licensed waste management facility. The removal of such waste shall commence within seven days of the date of this order and shall be completed within five weeks of the date of this order.”

24 The trial Judge found that Ms Wilkie had not breached s 76A(1) of the EPA Act but held that she had “permitted or suffered” the unlawful development of the land. The trial judge said:

“I am satisfied on the balance of probabilities that Ms Wilkie was the lessee of the site, and that she was in control of the site in the sense that she entered into and made the arrangements which constituted the subleases to Mr Ross and to Graveyard Recycling. I find that, by reason of the subleases, and in particular the permitted use specified under the sublease to Graveyard Recycling, that Ms Wilkie had the capacity to terminate the sublease to Graveyard Recycling and thereby to stop an unauthorised use of the site.
There is no evidence to establish that Ms Wilkie herself actually brought any waste material on to the site, nor that she had any direct involvement in the activity carried out on the site by either Mr Ross or Mr Reid and graveyard Recycling. But there is evidence which, when taken as a whole, establishes on the balance of probabilities that she permitted, and did not endeavour to prevent, that activity taking place.”

25 The trial Judge granted an injunction directed to Ms Wilkie and made the following rectification order with respect to her:

“(6) The First Respondent remove from the site the existing soil, gravel, bricks, demolition material and other excavated or hard material and waste presently situated on the site and have it transferred to a licensed waste management facility. This order is contingent upon the second and third respondents failing fully to comply with order 5 of these orders within the time therein specified. Accordingly, this order is postponed until the expiration of that time, and, unless there has been full compliance by the second and third respondents with order 5 within that time, this order shall operate and be of full force and effect after that time.”

26 That order was subsequently varied by inserting the following fourth sentence:

“The removal of the waste and its transfer to a licensed waste management facility in accordance with this order shall be completed within 35 days of the date of the insertion of this sentence into order 6.”

27 The principal issue debated in this appeal is whether the findings which the trial Judge made against Ms Wilkie were a sufficient basis for the rectification order made against her. It is not in dispute that the cost of removing the waste is likely to be very expensive. The only figure with respect to the cost which was mentioned in the evidence was $2,000,000, but that figure may be totally unreliable.

28 In further elaboration of her findings against Ms Wilkie, the trial Judge said:

“I have found that the first respondent, Ms Wilkie, did not bring the waste material on to the site, but she permitted or suffered the site to be used for the illegal purpose. She was the sublessor, and in control, through the subleases, of the use to which the site was being put. She took no action to stop that use. Her position, in my opinion, is analogous to that of an owner of land who permits an illegal use of the land and does not try to stop that use.
In my opinion, there is no relevant difference between the position of an owner of land who permits and suffers a breach of the EP&A Act and a person in the position of Ms Wilkie, who controlled the site as sublessor and permitted or suffered the site to be used in breach of the EP&A Act.”

29 The trial Judge found that, as Mr Constantine had taken positive steps, by way of complaints to the Council and to the Regional Illegal Dumping Squad, Mr Constantine did not himself breach s 76A(1) and did not “permit or suffer” the site to be used for the unlawful purpose. The trial judge held:

“My ultimate finding is that Mr Constantine did not himself use the site for the deposit of waste material, and he did not permit or suffer the site to be used for that purpose, nor did he acquiesce in that use. For this reason, it is not necessary nor appropriate for me to make any consequential orders against him.”

30 The trial Judge appears to have proceeded on the view that s 124 of the EPA Act enables the Court to make a remedial order, when satisfied that there has been a breach of the Act, against any party to the proceedings who has played a part in the relevant breach. On the view of the trial Judge, s 124 confers on the Court an unfettered discretion to make a remedial order, the Court may make such orders it sees fit and apportion responsibility as it sees fit and the Court may make an order against a person notwithstanding that that person has not contravened the EPA Act.

31 This interpretation is a surprising one for the EPA Act does not use the term “involved in a (the) contravention”, a term which is defined for example in s 75B of the Trade Practices Act 1974 (Cth), s 61 of the Fair Trading Act 1987 and s 79 of the Corporations Act. That expression can be found in many State and Federal Statutes. In the three statutes I have mentioned, it is defined to include aiding and abetting. Section 55 of the Land and Environment Court Act 1979 contains an aiding and abetting provision which applies in the prosecution of offences punishable in the summary jurisdiction of the Court. However, no such provision applies generally with respect to breaches of the EPA Act.

32 Even when the concept of “involvement in a contravention” applies, it has a limited application. In Giorgianni v The Queen (1985) 156 CLR 473, it was held that no one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, the person intentionally aided, abetted, counselled or procured the acts of the principal offender. Wilful blindness, that is to say the deliberate shutting of one’s eyes to what is going on, is equivalent to knowledge, but neither negligence nor recklessness is sufficient. That approach was adopted in relation to the term “involvement in a contravention” in s 75B of the Trade Practices Act. In Yorke v Lucas (1985) 158 CLR 661 at 670 Mason ACJ, Wilson, Deane and Dawson JJ said:

“In our view, the proper construction of par.(c) requires a party to a contravention to be an intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention.”


The approach taken in Giorgianni was applied.

33 The findings of the trial Judge against Ms Wilkie do not justify a finding that Ms Wilkie was “involved in the contravention”, giving that term a meaning I have discussed. As the term is not, in any event, adopted by the EPA Act, it is necessary to look with some care to see whether her Honour’s conclusion was well based on the authorities to which her Honour referred.

34 Division 2A of Part 6 of the EPA Act provides for orders which a council may give. Section 121B of the EPA Act provides, inter alia:

“ What orders may be given by a consent authority ?

(1) An order may be given to a person by:
(a) a council, or
(b) any other person who exercises functions as a consent authority, except in relation to complying development for which a complying development certificate has been issued,
to do or refrain from doing a thing specified in the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.

Column 1	Column 2	Column 3
To do what?	In what circumstances?	To whom?
1. To cease using premises for a purpose specified in the order 12. To do such things as are specified in the order to restore premises to the condition in which they were before building was unlawfully erected or before work was unlawfully carried out	(a) Premises are being used for a purpose that is prohibited (b) Premises are being used for a purpose for which development consent is required but has not been obtained (a) Building has been unlawfully erected, and an order No 2 has been given requiring the building to be demolished or removed (b) Work has been unlawfully carried out	Owner of premises, or person by whom premises are being used for the purpose specified in the order The owner of the premises, any person entitled to act on a development consent or complying development certificate or any person acting otherwise than in compliance with a development consent or complying development consent

No such order is relied upon in the present case. Although a notice from the Council, not an order, was directed to Ms Wilkie in February 2001, it may not have been served on her. In any event it was not enforced.

35 Division 3 of Part 6 of the EPA Act provides for orders which the Land and Environment Court may make. Relevant provisions are:

“122. Definitions
In this Division:
(a) a reference to a breach of this Act is a reference to:
(1) a contravention of or failure to comply with this Act, and
(ii) a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act, and
(b) a reference to this Act includes a reference to the following:
(i) the regulations,
(ii) an environmental planning instrument,
(iii) a consent granted under this Act, including a condition subject to which a consent is granted,
((iv) a complying development certificate, including a condition subject to which a complying development certificate is granted,
(v) an order under Division 2A.
123 Restraint etc of breaches of this Act
(1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.
…
124 Orders of the Court
(1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such orders as it thinks fit to remedy or restrain the breach.
(2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may:
(a) where the breach of this Act comprises a use of any building, work or land – restrain that use,
(b) where the breach of this Act comprises the erection of a building or the carrying out of a work – require the demolition or removal of that building or work, or
(c) where the breach of this Act has the effect of altering the condition or state of any building, work or land – require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed.

36 My impression of these provisions is that they are concerned with breaches of the EPA Act and authorise the Court to make orders against persons who are in breach of or who have breached the EPA Act. The Court’s jurisdiction is enlivened by a breach of the EPA Act and it is empowered to make orders “to restrain the breach” and “to remedy the breach”. The provisions do not suggest to me that orders may be made against persons who have not breached and are not in breach of the EPA Act. This is particularly so as any person may bring proceedings under the Act. A more expansive interpretation might be justified were the provisions to be seen as part of the armoury of an enforcement body.

37 However, for the purposes of the present case, it is not necessary to consider the extent to which injunctions may be granted against persons who have not been parties to a breach of a planning instrument and it is not necessary to consider the circumstances in which a rectification order may be made against an owner or owner/occupier of premises to which unauthorised alterations or improvements have been made. My remarks should not be read as impacting upon those circumstances. Nor is it necessary to consider whether under s 124, orders may be made against a person who has an obligation under the general law to rectify what has occurred, for example, to rectify a nuisance. No such claim was raised.

38 In the present case, Ms Wilkie did not breach the EPA Act. She was not the owner of the premises and it was not held that she derived any benefit from the unlawful development of the land.

39 In Ashfield Municipal Council v Andrews (1986) 60 LGRA 248, it was held by Cripps CJ that mere ownership of a building, the subject of a lease, was insufficient to support the making of a restraining order against the owner of premises which the tenant had commenced to use for an unlawful purpose. The Ashfield Municipal Council had commenced proceedings seeking orders that certain persons including the owners of premises be restrained from acting otherwise than in accordance with an Environmental Planning Instrument. Cripps CJ rejected the claim made against the owners. At 252, his Honour said that the Court was concerned with the meaning of the words “carry out development” in s 76(3) of the EPA Act and with the meaning of the word “used” where appearing in the defined meaning of “development”. His Honour said at p 252:

“But if I had to characterise the purposes of the use of the land by Mr and Mrs Andrews upon an assumption that the reasoning in Macquarie University ought to be applied to the present facts I would say they were using the land for the purposes of investment. In Macquarie University Gibbs ACJ (at 643) said:
‘If the land in question had been let simply to raise money for the purposes of the university, the decision in Commissioners of Taxation v Trustees of St Mark’s Glebe [1902] AC 416 would have been directly applicable, and it would not have been possible to say that the land was ‘used’ for the purposes of the university within par (fii).’
But whether Mr and Mrs Andrews were using the land for the purpose of investment or not, they were not using the land for the purpose of a brothel. They were not using it for any unauthorised planning purpose. Even if it be assumed that Sandra Gordon had obtained development consent for the stipulated use (which she had not) and had in fact used the building for an office or residence (which she did not) Mr and Mrs Andrews would not have been relevantly using the premises for an office and residence. But even if they had been, they would not have been carrying out development within the meaning of s 76.”

40 Some subsequent cases appear to have been influenced by other remarks made in Macquarie University v Ryde Municipal Council [1977] 1 NSWLR 304. However, that was a rating case and the issue was whether the subject property was “land which … is used … by the University … solely for the purposes thereof”. It was held that the Macquarie University was entitled to an exemption in relation to that part of its property which provided banking and commercial facilities for the benefit of its students and staff. In my opinion, cases concerning rating and taxation statutes of that type, and there are many of them, have no application to the present issue. As Handley JA, with whom Priestley JA agreed, said in Minister Administering The Crown Lands Act v New South Wales Aboriginal Council (1997) 42 NSWLR 641 at 643-5:

“In my opinion the appropriate conclusion is that a person making a passive use of land does not ‘carry out’ development for the purposes of s 76(2) of the Act. There is no decision, either of the High Court or this Court, which constrains the Court to a different conclusion.
…
In my opinion the prohibition on the carrying out of development in s 76(2) by the use of land can only be contravened by an active use and has no application where the use is entirely passive. Although a passive use of land may be a use of it for some purposes, the remarks of the High Court in North Sydney Councilv Ligon 302 Pty Ltd (1996) 185 CLR 470 at 477 referred to by Sheller JA were not directed to this question in the context of s 76(2) and in my opinion have no application in that context.
The use of this land on the relevant date was entirely passive and was therefore not unlawful.”

41 In Holroyd City Council v Murdoch (1994) 82 LGERA 197 Stein J applied what he considered as “the extended meaning of use in the Macquarie University case” and held that a remedial order should be made under s 124 against the owner of the property who had stood by and failed to take steps to prevent illegal dumping of fill on his land. His Honour said at 203:

“In my opinion an owner of land may be liable under planning law to be restrained from leaving his land in such a condition so as to be an open invitation to illegal dumpers. Furthermore, an owner may be required to remove fill unlawfully dumped on his land without his authority, so long as he knows or is made aware of the situation and takes no steps to prevent its recurrence.”

42 In my opinion, his Honour’s reliance upon the Macquarie University case was misguided. However, that case and the two brothel cases, Parramatta City Council v Stonewill Pty Limited (Land and Environment Court, 22 February 1991, Hemmings J, unreported) and Botany Council v Tsolakis (Land and Environment Court, 30 November 1988, Holland J, unreported) were cases where the facts were strong enough to warrant an inference that the owner had participated in the unlawful use or, in Murdoch, had at least taken advantage of the breach. In many cases, particularly brothel cases, an inference of participation can readily arise.

43 Stein J did not discuss and apparently was not referred to the judgment of Cripps CJ in Ashfield Municipal Council v Andrews.

44 Stein J’s judgment was considered in Murdoch v Holroyd City Council (New South Wales Court of Appeal, 20 November 1996, unreported). Cohen AJA delivered the principal judgment of the Court. His Honour said, inter alia:

“On what was, in effect, dealt with on a sliding scale various other authorities were pointed to show how, in other circumstances, owners have been found to have used land, even though the direct use was not by the owner. Certainly there have been cases such as were referred to whereby owners have been found who have acquiesced in the wrongful use of land and to that extent, therefore, would have been themselves regarded as users.
…
It has been pressed upon us that the lack of participation in the placing of the fill is an essential aspect of the claim against the appellant. In my opinion his Honour was correct in considering the fact that the appellant was a party at least to the spreading of fill and as his Honour has found he tacitly approved of the dumping of further waste. The fill continued to remain on the land without any steps being taken by the appellant to remove it. In my opinion that constituted storage on the land of the improperly placed fill and it was a storage in which, at least in part, he had been a participant. Whether that is an essential question does not seem necessary in these proceedings for me to decide. I am of the view that his Honour was justified in coming to the conclusion that there was a storage on the land of material and to that extent that this constituted a use of the land within the meaning of the definition and thus was a breach of s 76(2) of the Act.”

45 Thus, Cohen AJA adopted the traditional approach and found against the appellant on the ground that the owner breached the EPA Act. Priestley JA, in a short judgment, expressed agreement with the reasons of Cohen AJA and those of Stein J. Sheller JA expressed agreement with the other members of the Court. However, as his Honour’s brief reasons commenced, “I see no error in the conclusion to which Stein J came”, I take his Honour to have adopted the reasoning of Cohen AJA.

46 In Albury City Council v Maxwell (Land and Environment Court, 3 September 1988, unreported) Lloyd J held that he was constrained by the judgment of Stein J in Holyroyd City Council v Murdoch to find that, although the owners of certain flats could not be said to be carrying out development on a vacant allotment and the use being made of that land was by the occupiers of the flats and not by the owners, remedial orders directed to the owners should be made under s 124(2)(a) of the EPA Act as the owners could and should have exercised control to prevent the unlawful use of the vacant allotment.

47 Lloyd J said that he had reservations about the correctness of Stein J’s decision but that he should, as a matter of judicial comity, follow it. His Honour was not referred to and did not consider the judgment of Cripps CJ in Ashfield Municipal Council v Andrews or the judgment of the Court of Appeal in Murdoch v Holyroyd City Council.

48 Subsequently, in Sydney City Council v Zizza [1999] NSWLEC 77, Lloyd J considered and discussed the judgment of Cripps CJ in Ashfield Municipal Council v Andrews and gave effect to his Honour’s approach.

49 In Payne v Mosman Municipal Council [2000] NSWLEC 25 Pearlman CJ said:

“Ms Duggan submitted that an order under s 124 ought not to be made against the council because it did not commit the breach of the EP&A Act. However, I can see no reason to read down the width of the powers of the Court under s 124 by reference to the culpability of the party against whom any order might be made. The purpose of s 124 is to permit the Court to make orders which have the effect of protecting the environment, and protection of the environment is one of the objects of the EP&A Act (s5(a)(vi)). The Court has power to frame its orders in the light of all the factors in the dispute having regard to the objects of the EP&A Act (F Hannan Pty Ltd v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306 at 313).”

However, her Honour did not discuss the relevant authorities.

50 In Sahade v Mosman Municipal Council [2000] NSWCA 251, the principal judgment was given by Stein JA, Handley JA and Heydon JA agreeing. This is a difficult case to deal with for the judgment was an oral, unreserved judgment. Stein JA did not set out the facts of the case or the precise content of all the orders which were under appeal. It appears that Mr Sahade, the owner of land, had been the applicant for and the recipient of a development consent and building approval to permit either the construction or the alteration of a shopping centre. At first instance, Talbot J had made a declaration that Mr Sahade was operating or permitting or suffering the use of the subject premises in breach of conditions of the development consent and of the building approval. His Honour granted remedial relief including an order that Mr Sahade forthwith take and continue to take all reasonable steps to satisfy the requirements of condition 2(i) of the development consent and condition 51 of the building approval.

51 Mr T Robertson SC, counsel for Ms Wilkie in this present appeal, was counsel for the Mosman Municipal Council in Sahade. He has supplied the Court with a copy of his written submissions. They do not greatly illuminate the facts but they make it clear that, in the proceedings at first instance, Mr Sahade called no evidence. Mr Robertson’s written submissions included the following passage:

“The appellant’s counsel was given the opportunity of calling his client to explain his role in the development, but despite raising the possible existence of a lease in cross-examination, he did not dispel the inference that his Honour correctly drew of his control of the subject land and the things on it: and see s 697 (dot points 9 and 10), Local Government Act 1993. The appellant was hoist on his own petard.”

52 In the course of his reasons for judgment, Stein JA said, in a passage which reflects submissions made by Mr Robertson, which Mr Robertson now regrets and would like to retract:

“…. the concern of the appellant with the orders made against him in the Land and Environment Court does not appear to attack his Honour’s finding of breaches of the consent and approval but rather to argue that the evidence was not sufficient to implicate the appellant in the breaches. Again, this is to misunderstand the nature of the proceedings. It matters not whether the appellant himself committed the breaches or failed to prevent breaches occurring. Of course, such matters may be relevant to the Court’s discretion and to the nature of the orders which may be made to remedy the breach.
The Court’s power to grant a remedy in civil enforcement proceedings is dependent on proof that the breach has been committed or, unless restrained, will be committed. It is not dependent on proof that the respondent to the proceedings committed the breach. Nonetheless, in determining whether to make an order to remedy or restrain a breach, and the ambit of any order, the Court will need to be satisfied that the person to be bound by the order is in a position to remedy or restrain the breach.”

53 As his Honour did not discuss any authorities, I think it is clear that the issues raised by his Honour in the remarks I have quoted were not the subject of detailed debate and that the Court did not have the advantage of considering the issue in depth. I think it is also clear that the evidence disclosed that Mr Sahade had obtained the development consent and the building approval and had participated in the development and in the operation of the shopping centre. The extent of his involvement may have been in doubt but Mr Sahade called no evidence with respect to that matter. Mr Robertson’s written submissions referred to the inference drawn by the trial Judge of Mr Sahade’s control over the premises. In my opinion, it is to be implied from such of the orders as the reasons for judgment disclose that the Court considered that Mr Sahade had control over the premises and the power and authority to remedy the breaches. That is implicit in the finding that Mr Sahade was in a position to remedy and restrain the breach. It seems to me that the Court proceeded on the factual basis that Mr Sahade was the owner of the property and was responsible for the development and for the operations of the shopping centre which were the subject of complaint.

54 Thus, the later authorities do not justify departure from the approach taken by Cripps CJ in Ashfield Municipal Council v Andrews and by Cohen AJA in Murdoch v Holroyd City Council. I turn now to the facts of the case.

55 It has been submitted by Mr M G Craig QC with Mr D Parry, counsel for the Council and by Mr J S Wheelhouse, who appeared for Mr Constantine, that Ms Wilkie played a sufficient part in the activities which resulted in the breach of the planning laws to be held liable for that breach. I need not discuss the facts at any length. I agree with the conclusions of the trial Judge. In my opinion, the evidence does not establish that Ms Wilkie did more than sublease the land for a lawful purpose. There was no finding, for example, that the rent was fixed by reference to the illegal use of the premises. Ms Wilkie was not a participant in the unlawful development.

56 Indeed, Ms Wilkie’s situation was not unlike that of Mr Constantine. Although Mr Constantine complained to the Council about the activities on the subject property, neither he nor Ms Wilkie exercised their rights to terminate the lease or the sublease. From February 2001, the Council took whatever steps were taken to prevent the unlawful use of the premises. From March until July 2001, when the last cheques were paid, the cheques which Mr Reid issued for the rent of the sublease were handed over by Ms Wilkie to Mr Constantine. The evidence does not make it clear whether Mr Reid’s cheques were drawn in favour of Mr Constanie’s company or were endorsed by Ms Wilkie. The last cheque paid by Ms Wilkie for her own rent appears to have been paid in July 2001. Her involvement with the land thereafter is not entirely clear. It appears that Ms Wilkie is still carrying on her business on a small part of the premises, which is outside the land the subject of the sub-lease. In July 2001, Mr Constantine instituted proceedings seeking possession of the land the subject of the sub-lease. The statement of claim alleged that Mr Reid and Graveyard Recycling were in occupation of that land and that the sub-lease had been granted without Mr Constantine’s approval in breach of cl 10 of the lease. At the time of the trial, those proceedings had not been concluded.

57 On the evidence accepted by the trial Judge, Ms Wilkie’s involvement with the unlawful use of the land was that she was the sub-lessor of the premises and had the capacity to terminate the sublease but failed to do so. By the time of the trial, she was not receiving rent for or paying rent for that land.

58 The trial Judge held that Ms Wilkie’s position was analogous to that of an owner of land. Her Honour remarked that there was no relevant difference between the position of an owner of land who permits and suffers a breach of the EPA Act and that of a person in the position of Ms Wilkie who controlled the site as sub-lessor.

59 However, Ms Wilkie was not the owner of the premises and she was not involved in the dumping of material on the land. She had granted a sub-lease which authorised the use of the land for a lawful purpose. Ms Wilkie did not occupy and she was not in control of the land which Mr Reid and Graveyard Recycling used. See, eg, WD & HO Wills (Australia) Ltd v State Rail Authority of New South Wales (1998) 43 NSWLR 338.

60 The terms used by her Honour, “permitted or suffered” and “permitting or allowing” describe no category of activity which, absent the use of the expression in a statute, an instrument or a covenant, is known to the law as giving rise to an obligation to remedy a breach. The terms are not wide enough to describe a situation of “aiding or abetting” or of “involvement in the contravention” even if these terms applied to s 124, which they do not. The terms may well have relevance to the exercise of discretion once a breach by the person was established. But they do not authorise the making of an order of rectification against Ms Wilkie who did not breach the EPA Act and did not benefit from the breach.

61 In the field of nuisance, express authorisation has been held to attract liability. See Blackburn J in Harris v James (1876) 45 LJ QB 545. This limited principle was discussed by Penncuick VC in Smith v Scott [1973] Ch 314, where his Lordship said at 321:

“It is established beyond question that the person to be sued in nuisance is the occupier of the property from which the nuisance emanates. In general, a landlord is not liable for nuisance committed by his tenant, but to this rule there is, so far as now in point, one recognised exception, namely that the landlord is liable if he has authorised his tenant to commit the nuisance: Harris vJames (1876) 35 LT 240. But this exception has, in the reported cases, been rigidly confined to circumstances in which the nuisance has either been expressly authorised or is certain to result from the purposes for which the property is let: Rich v Basterfield (1847) 4 CB 783 and Ayers v Hanson , Stanley & Prince (1912) 56 SJ 735; and see generally Clerk and Lindsell on Torts , 13th ed. (1969), p 805, para. 1426; Salmond on the Law of Torts , 15th ed. (1969), p 89 and Winfield and Jolowicz on Tort , 9th ed. (1971), p 348. I have used the word ‘certain,’ but ‘certainty’ is obviously a very difficult matter to establish. It may be that, as one of the textbooks suggests, the proper test in this connection is ‘virtual certainty’ which is another way of saying a very high degree of probability, but the authorities are not, I venture to think, altogether satisfactory in this respect. Whatever the precise test may be, it would, I think, be impossible to apply the exception to the present case. The exception is squarely based in the reported cases on express or implied authority: see in particular the judgment of Blackburn J in Harris v James , 35 LT 240, 241. The exception is not based on cause and probable result, apart from express or implied authority. In the present case, the corporation let no 25 Walpole Road to the Scotts as a dwelling house on conditions of tenancy which expressly prohibited the committing of a nuisance, and, notwithstanding that the corporation knew the Scotts were likely to cause a nuisance, I do not think it is legitimate to say that the corporation impliedly authorised the nuisance.”

62 In the present case, it was not found that Ms Wilkie expressly authorised the mountain of rubbish or even that the rubbish was a nuisance. The case was not put on that basis.

63 In Wright and Romeyko v Corporation of City of West Torrent (1996) 91 LGERA 197, an owner who had leased land was held liable to comply with a notice from the Municipal Authority which required her to remedy breaches of a planning authorisation by ceasing the unlawful use. Debelle J, with whom Cox J and Matheson J agreed, gave the principal judgment. However, the case turned upon the express terms of the Development Act 1993 (SA). Section 4 of the Development Act defined the expression “to undertake development” to mean:

“to commence or proceed with development or to cause, suffer or permit development to be commenced or to proceed.” (emphasis added)

64 In Rochford Rural District Council v Port of London Authority [1914] 2 KB 916 also, the issue concerned a statutory provision which contained the words “caused or suffered”.

65 Such cases do not assist the resolution of the ambit of s 124 of the EPA Act, which contains no such words. The many cases, of which Barton v Reed [1932] 1 Ch 362 is one, which have considered covenants containing the terms “permit” or suffer”, are similarly of no assistance. Indeed, they point to the need for the expression of such a term if liability based on permitting or suffering is to be established.

66 In my opinion, as s 124 contains no such terms, the basis on which her Honour proceeded was unsound.

67 The order for rectification directed to Ms Wilkie should therefore be set aside.

68 Ms Wilkie also appealed against her Honour’s dismissal of the claim against Mario Constantine. Her standing to make such a claim was dependent upon there being mutual liabilities such that she could claim contribution from Mr Constantine. As Ms Wilkie has succeeded in her appeal against the Council, she does not have standing to challenge the dismissal of the Council’s claim against Mr Constantine.

69 For these reasons I would allow the appeal. I would order that her Honour’s orders be varied by omitting order (6). I would order that order (8) be varied by omitting the reference to “The First Respondent”. I would order that the Blacktown City Council pay the costs of Ms Wilkie of the trial. I would order that the Blacktown City Council pay the costs of Ms Wilkie of the appeal. I would order that Ms Wilkie pay the costs of Mario Constantine of the appeal, such costs to be included in the costs payable to her by the Blacktown City Council.

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