Williams v Blue Mountains City Council

[2001] NSWLEC 73

Land and Environment Court

of New South Wales

CITATION:	Williams v Blue Mountains City Council [2001] NSWLEC 73
PARTIES:	APPLICANT Ralph Douglas Williams RESPONDENT Blue Mountains City Council
FILE NUMBER(S):	40159 of 2000
CORAM:	Sheahan J
KEY ISSUES:	Orders :- declaratory orders and mandamus - "building" or "work" - application for building certificate - characterisation
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Local Government Act 1919
CASES CITED:	Benz v Blacktown Municipal Council (1971) 25 LGRA 133; Bowyer v Manly (matter 40305 of 1996, 28 February 1997); Burwood Council v Russo (40145 of 1994, 14 March 1995); Cariste Pty Ltd v Blue Mountains City Council (CA 40217/93, 18 December 1996); Cessnock City Council v Ireland & Anor (matter 40073 of 1998, unreported, 9 October 1998); City of Parramatta v Brickworks Ltd (1972) 128 CLR 1; Conomos v Chryssochoides (1997) 97 LGERA 113; Garbacz & Ors v Morton & Ors (1999) 108 LGERA 251; Herbert v Warringah Council (1997) 98 LGERA 270; Ireland v Cessnock City Council (1999) 103 LGERA 285 and [1999] NSWLEC 250; Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302; Parramatta City Council v Shell Co of Australia Ltd (1972) 1 NSWLR 483; Reg v Lowe (1954) 19 LGR (NSW) 348; Stevens v Cleary (40229 of 1997 24 July 1998); Sutherland Shire Council v Heyman (1985) 157 CLR 424
DATES OF HEARING:	12/02/2001
DATE OF JUDGMENT:	04/19/2001
LEGAL REPRESENTATIVES:	APPLICANT Barrister Mr P Clay Solicitors Pike Pike & Fenwick RESPONDENT Barrister Mr P Larkin Solicitors McPhee Kelshaw

JUDGMENT:

RALPH DOUGLAS WILLIAMS

Applicant

v

BLUE MOUNTAINS CITY COUNCIL

Respondent

JUDGMENT

Introduction

1. These are class 4 proceedings, seeking declarations and an order in the nature of mandamus, but they must be viewed against a complex background.

2. In his class 4 application, filed 18 October 2000, Mr Williams seeks the following declarations and order:

1. A declaration that the sediment pond and associated works on Lot 7 DP 100095 (sic) is a ‘building’ within the meaning of section 4 of the Environmental Planning and Assessment Act 1979 (‘the Act’).
2. A declaration that the Applicant’s application for a building certificate pursuant to s149B of the Act, made to the Respondent on or about 16 August, 2000, is an application properly made pursuant to the Act and the regulations to the Act.
3. An order that the Respondent be directed to accept and process the Applicant’s application for a building certificate for the sediment pond and associated works on Lot 7 DP 1000095 which was lodged with the Respondent on or about 16 August, 2000.

3. Williams and his wife own the subject land, and the sediment pond and associated works to which the application refers (“the pond”) were partially constructed in or by about November 1998 as a substantial (drainage) component of a 17 lot subdivision, allegedly authorised by development consent issued by the Council (DC S97/0005), and an appropriate associated approval under the Local Government Act (“LGA”) 1919.

4. Apparently, development consent was first granted on 22 December 1997, on a deferred commencement basis, was amended on 21 July 1998, and became operational on 19 August 1998 (see pp 45ff Williams’ Affidavit 23 November 2000). The LGA approval is dated 10 September 1998.

5. The central issue in the case is the correct characterisation of “the pond”.

The pond

6. The pond has not been constructed as per the July 1998 drawing and Council says that it is “in breach of the relevant development consent”. It is apparently constructed within a 20 metre buffer zone to a non perennial tributary of Glenbrook Creek (see Exhibit C5 p2). This apparent breach of the terms and conditions of the consent came to Council’s notice in about January 1999 and, during his oral evidence, Williams marked Exhibit W2 to assist the court in understanding the difference in location of the actual works from those envisaged by the consent.

7. The applicant described the “works as executed” in the following terms in the Points of Claim filed 6 December 2000:

4. …The sediment pond includes the following components and features:
A It has dimensions of approximately 9.5 metres across the north/south section and 11 metres across the east/west section.
B It has a water volume of 57 cubic metres.
C The walls are partially constructed of sandstone boulders ranging in size from approximately 600mm to 1200mm.
D It has a lining consisting of crushed blue metal stones approximately 75mm in thickness with a geo textile filter fabric laid on top.
E The down hill side of the sediment pond including the spillway is constructed of dry packed sandstone boulders approximately 1500mm above the surrounding ground.
F A 375mm concrete drainage pipe discharges into the sediment pond.
G A manhole and service pit to the concrete drainage pipe are located approximately 18 metres from the sediment pond.
H A 1200mm black chain wire fence is constructed on it’s northern boundary.
I Below the spillway a rock filled drainage channel has been constructed which drains the sediment pond to the adjacent creek.
J The total area containing the sediment pond, concrete pipe, manhole and service pit and the fence is approximately 200 square metres.

8. Williams describes the works, and the proposed completion of them, in the following terms, in his affidavit of 23 November 2000:

40. The sediment pond has not yet been fully constructed in accordance with Plan No 96/145/2 exhibited at ‘RDW4’. Following the Council Order to remove the sediment pond I caused works on the pond to be stopped. The sedimentation pond, as constructed, has the following features:
i) It has dimensions of approximately 9.5 metres across the north/south section and 11 metres across the east/west section
ii) It has a water volume of 57 cubic metres.
iii) the sediment pond walls are partially constructed of rock boulders ranging in size from approximately 600mm to 1200mm.
iv) It has a lining consisting of crushed blue metal stones of up to a maximum of approximately 75mm in size with a geo textile filter fabric laid on top.
v) The down hill side of the sediment pond including the spillway is constructed of dry packed sandstone boulders approximately 1500mm above the surrounding ground.
vi) A 375mm concrete drainage pipe discharges into the sediment pond. This drainage pipe serves Honeyeater Crescent and the second stage of the subdivision.
vii) A manhole and service pit to the concrete drainage pipe are located approximately 18 metres from the sediment pond.
viii) The sediment pond is proposed to be fully fenced off by a 1200mm black chain wire fence on it’s northern boundary. To date the fence has only been partially constructed around the boundary of the sediment pond.
ix) Below the spillway a rock filled drainage channel has been constructed which drains the sediment pond to the adjacent creek.
x) the total area containing the sediment pond, concrete pipe, manhole and service pit and the fence is approximately 200 square metres.
41. My application for a Building Certificate which I lodged with the Blue Mountains Council referred to in paragraph 34, relates to all of the structures which form part of and are integral to the proper functioning of
the sediment pond referred to in items i) to x) above.
42. The following works are still required for the pond to be fully constructed in accordance with Plan No 96/145/2 exhibited as ‘RDW.4’ which will result in a final cubic capacity of 78 cubic metres:
i) The wall of the sediment pond on the low side at the spillway is required to be increased in height by a further 250mm and each side of the spill way by a further 550mm.
ii) The sediment pond also requires to be cleaned out and deepened and then relined with filter fabric and a protective layer of blue metal after development of the subdivision lots is complete and stable.

9. Mr Williams also gave oral evidence on these matters.

10. What has thus far been constructed is described by Council’s officer, David Johnson, in his second affidavit, dated 12 January 2001, as follows:

7. The sediment pond is irregular in shape with dimensions of approximately 15m x 12m. The base of the pond is approximately 6.5m x 7m in area. The pond is approximately 1m deep (below spillway level).
8. the pond is formed primarily by excavation of the natural ground with the spillway area being the only part of the site where the ground level directly outside the pond is lower than the edge of the pond.
9. The spillway area of the pond appears to be partially formed by placing sandstone boulders to form a wall approximately 1m high. Part of the spillway wall is formed by the natural ground including a very large rock boulder. The spillway is approximately 0.5m above the ground level immediately outside (downhill) the pond spillway. The spillway area is lined with a geotextile fabric underlain with river gravel.
10. The base and other walls are formed by excavation of the natural ground.
11. The base and walls are lined with geotextile fabric over a layer of river gravel.
12. A 375mm concrete stormwater pipe discharges directly into the pond.
13. The ‘outlet channel’ below the spillway appears to be a natural formation that has been filled with sandstone boulders in an irregular arrangement.
14. The fencing in the vicinity of the pond does not appear to bear any functional relationship to the pond. The fencing finishes 1m clear of the excavation for the pond. The pond interrupts the line of the fencing. The fence does not enclose the pond.
15. I understand that the fencing was installed in part fulfilment of a condition relating to protection of some aboriginal artefacts in the area.

11. Williams disputes some of Johnson’s assertions, especially par 13 quoted above.

12. The court has gained a clear picture of the works done, from the photographs annexed to Johnson’s second affidavit, and those tendered by the applicant (Exhibit W4).

13. An accredited certifier, Warwick Norris, engaged by the applicant, describes the pond in these terms, in his affidavit of 4 December 2000:

3. On behalf of Mr Ralph Douglas Williams, the applicant in these proceedings, I was requested to carry out an inspection of a sediment pond and associated works which make up the structure, including sandstone boulders, concrete stormwater pipe and manhole, chain wire fence, rock channel and spillway (‘the sediment pond’) on Lot 7 Deposited Plan 1000095 at Coughlan Road, Blaxland. The purpose of the inspection was to view the sediment pond and appraise it’s component parts for structural adequacy and to consider the purpose for which it was constructed.
…
5. Based upon my inspection of the sediment pond and the above plans, I can say that the purpose of the sediment pond is to retain and control storm water flows from the proposed subdivision, filter the suspended particles in the water and to release clean water into the nearby creek. For all practicable purposes, it acts as a storage dam to collect and release stormwater. The storm water is directed to the sediment pond in two ways, by overland flows and by a 375mm reinforced concrete pipeline which serves proposed allotments and roads by a series of drainage pits.
6. The sediment pond as constructed is approximately 9.5 by 11 metres in size and constructed of sandstone. Sandstone boulders ranging in size from approximately 600mm to 1200mm wide form the walls. Due to the size of these boulders an excavator or a bobcat would have been required to put them into place. The low end of the sediment pond contains a spillway which is part of the sediment pond. The spillway is approximately 1500mm above the surface of the surrounding ground. There is a constructed rock channel below the spillway which serves to direct water to the adjacent creek. The sediment pond is lined with a layer of river gravel approximately 75mm in thickness and a layer of geo-textile fabric is laid on top of the gravel. At the time of my inspection, the sediment pond was holding approximately 400mm of water within it. A 375mm concrete storm water pipe discharges directly into the sediment pond. There is a manhole to this stormwater pipe approximately 18 metres from the sediment pond. The pond is partially fenced off by a chain wire fence approximately 1200mm in height.

The Council’s position

14. The applicant sought a building certificate, by application on or about 16 August 2000, made to the Council. He paid a fee of $50, as it is contended that this pond qualified as a “Class 10b” building in terms of the Building Code of Australia, Williams having been so advised by Norris in these terms:

7. In my opinion the sediment pond is a structure of the type which is required to be controlled by the provisions of the Building Code of Australia 1996 (‘BCA’). In particular, there are environmental issues and important safety issues with both it’s use and construction.
8. I am of the opinion that the sediment pond is a structure of the type which falls within the classification of a Class 10b structure under the BCA. As a class 10b structure, the sediment pond is required to be designed and built to comply with the structural provisions of the BCA which have the objectives of safeguarding people from injury or loss of amenity due to structure failure and property damage caused from structural failure. The specific performance requirements under the BCA for the sediment pond are that it must be designed and built to resist both dead and live loads and load combinations.
9. Having regard to my experience and qualifications, I am of the opinion that the sediment pond is a class 10b structure under the BCA. It is also my opinion, having carried out an inspection of the sediment pond and the plans for the pond, that the pond has been designed and built in compliance with the requirements of the BCA.

15. The respondent Council did not accept and process the application. It declined to deal with it, and advised the applicant, by letter of 29 August 2000, that the pond was not a “building”, and so cannot be the subject of an application for a building certificate (see Johnson’s letter to Williams, dated 29 August 2000, annexure ‘Y’ to Johnson’s affidavit of 29 November 2000). The cheque was refunded.

16. In the alternative, the respondent Council says that it was entitled to decline to issue a building certificate, because, on or about 9 June 2000, it served an “Order No.15” on the applicant in the following terms:

The Council of the City of Blue Mountains (the ‘Council’) hereby orders you to carry out the following work, as specified in the following Schedule hereunder on Lot 7 DP 1000095, formerly known as Lot 23 DP 876443, Coughlan Road, Blaxland.
1. Remove all drainage and earth works and fill from within the 20m buffer to the creek.
2. Restore the disturbed area to the original site levels and mulch the disturbed area with approved native vegetation mulch.
3. Submit amended engineering plans detailing the location of the creek centreline, the 20m buffer and the relocated drainage works and earth works that currently encroach within the buffer.
The creekline and the proposed lot boundaries to be located by survey, accurately plotted on the plan, and the plan certified by a registered surveyor.
4. Submit landscaping plans prepared by a Landscape Architect for the revegetation of the disturbed 20m creek buffer. The plans are to detail revegetation with endemic riparian vegetation.
5. Carry out the relocation and landscaping works in accordance with plans detailed in items 3 and 4 of this Order, subsequent to Council’s approval of those plans.
Reasons for the Order
This Order has been served upon you as the legal owner of the above land for the following reason:
1. Works re currently encroaching within the 20m buffer to the creek, in contravention of the consent to Development Application 5/97.

17. The applicant did not exercise his right of appeal against the above order, or against the deemed refusal of his building certificate application.

18. Council argues that the court, in any event, should exercise its discretion to refuse relief. Mr Larkin, Counsel for the Council, says that the court needs to look at the environmental effects of the works in order to determine if a development consent and/or a building certificate is/are appropriate.

19. Mr Larkin submits that that could be done only in a class 1 appeal against the Council’s Order, and, therefore, in its discretion, the court should not grant the applicant relief in class 4.

20. A class 1 appeal was, in fact, commenced on 30 June 2000, against the refusal of a s 96 modification application made in December 1999. The solicitors for the Council drew the applicant’s attention to my decision in Herbert v Warringah Council (1997) 98 LGERA 270, and, eventually, the class 1 appeal was discontinued in October 2000 (see Exhibit C6).

21. In support of his s 96 application, the applicant had said to the Council in his letter of 19 April 2000 (see affidavit 23 November 2000 p79):

· The sediment pond works as intended and there is no scouring or sediment loss from the outflow from the pond as it runs in a channel cut in the rock filled with rubble which dissipates the energy and allows the water to enter the creek without damaging the creek bank. The creek has a rock base at this point.
· The suggested re-location of the pond as indicated on site by staff would be further from the creek but would entail water flowing over a 20 metres wide strip of highly erodable soil.
· To relocate the pond will involve the loss of mature trees and understorey over an area considerably larger than the area of the pond itself.
· The space between the pond as presently located and the creek bank has a rock shelf in part and there was no vegetation destroyed on these rock areas.

Relevant provisions of the Environmental Planning & Assessment Act 1979

22. In section 4 of the EP&A Act the following relevant definitions appear:

building includes part of a building and any structure or part of a structure, but does not include:
(a) a manufactured home, a moveable dwelling or associated structure or part of a manufactured home, a moveable dwelling or associated structure, or
(b) a temporary structure within the meaning of the Local Government Act 1993.

building work means any physical activity involved in the erection of a building.

development means:
(a) the use of land, and
(b) the subdivision of land, and
(c) the erection of a building, and
(d) the carrying out of a work, and
(e) the demolition of a building or work, and
(f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument,
but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.

23. The court notes that the EP&A Act contains no definition of “structure” or “work”. However, s 4(2) provides:

(c) the carrying out of a work includes a reference to:
(i) the rebuilding of, the making of alterations to, or the enlargement or extension of, a work, or
(ii) enclosing a public place in connection with the carrying out of a work, and
(d) a work includes a reference to any physical activity in relation to land that is specified by a regulation to be a work for the purposes of this Act but does not include a reference to any activity that is specified by a regulation not to be a work for the purposes of this Act, and
…
(f) the carrying out of development includes a reference to the use of land or a building, the subdivision of land, the erection of a building, the carrying out of a work, the demolition of a building or work or the doing of any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument.

24. Order No.15 under s 121B is an order “to comply with a development consent” - issued by a Council when “the development consent is not being complied with”, and issued to the “person entitled to act on the development consent or person acting otherwise than in compliance with the development consent”.

25. The relevant provisions in respect of building certificates occur in Part 8 of the EP&A Act, under the title “Miscellaneous”, and are as follows:

149A Building certificates
(1) A council may issue a building certificate in accordance with this section and sections 149B-149E.
(2) A building certificate may apply to the whole or to part only of a building.
…
149B Applications for building certificates
(1) An application for a building certificate may be made:
(a) by the owner of the land on which the building is erected, or
(b) by any other person, with the consent of the owner of that land, or
(c) by the purchaser under a contract for the sale of property that comprises or includes the building or part, or by the purchaser’s solicitor or agent, or
(d) by a public authority that has notified the owner of its intention to apply for the certificate.
(2) The regulations may provide for the procedures for making an application, the fees payable in connection with an application and the procedures for dealing with an application.
149C Supply of information in connection with applications for building certificates
(1) On receipt of an application, the council may, by notice in writing served on the applicant, require the applicant to supply it with such information (including building plans, specifications, survey reports and certificates) as may reasonably be necessary to enable the proper determination of the application.
149D Obligations of council to issue building certificate
(1) The council must issue a building certificate if it appears that:
(a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993:
(i) to order the building to be demolished, altered, added to or rebuilt, or
(ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or
(iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or
(b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings.
(2) If the council refuses to issue a building certificate, it must inform the applicant, by notice, of its decision and of the reasons for it.
(3) The reasons must be sufficiently detailed to inform the applicant of the work that needs to be done to enable the council to issue a building certificate.
(4) The council must not refuse to issue or delay the issue of a building certificate by virtue of the existence of a matter that would not entitle the council to make any order or take any proceedings of the kind referred to in subsection (1)(a).
(5) Nothing in this section prevents the council from informing the applicant of the work that would need to be done before the council could issue a building certificate or from deferring. Its determination of the application until the applicant has had an opportunity to do that work.
149E Effect of building certificate
(1) A building certificate operates to prevent the council or any other person who may be empowered to do so:
(a) from making an order (or taking proceedings for the making of an order or injunction) under this or any other Act requiring the building to be repaired, demolished, altered, added to or rebuilt, by reason only of its design, appearance, form of construction or state of repair, and
(b) from taking proceedings in relation to any encroachment by the building or part onto land vested in or under the control of the council or consent authority,
in relation to matters existing or occurring before the date of issue of the certificate.
(2) However, a building certificate does not operate to prevent a council or any other person:
(a) from making an order (or taking proceedings for the making of an order or injunction) requiring the building to be repaired, demolished, altered, added to or rebuilt, where the order is made only in relation to matters arising otherwise than by virtue of the deterioration of the building as a result of fair wear and tear, or
(b) from making order No 6 in the Table to section 121B, or
(c) from taking proceedings against any person under section 125 with respect to that person’s failure:
(i) to obtain a development consent with respect to the erection or use of the building, or
(ii) to comply with the conditions of such a development consent.
(3) An order or proceeding that is made or taken in contravention of this section is of no effect.
149F Appeals with respect to building certificates
(1) An applicant:
(a) who is aggrieved by a council’s refusal to issue a building certificate, or
(b) who is aggrieved by a council’s refusal to issue a building certificate within 40 days after:
(i) the date of application for the certificate, or
(ii) if the applicant receives a notice under section 149C to supply information, the date on which the information is supplied,
whichever is the later, or
(c) who receives a notice under section 149C to supply information,
may appeal to the Court.
(2) The appeal must be made within 12 months after the date on which the refusal is communicated to the person, the date on which the 40-day period expires or the date of the notice under section 149C, as the case requires.
(3) On hearing the appeal, the Court may do any one or more of the following:
(a) it may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit,
(b) it may revoke, alter or confirm a notice under section 149C,
(c) it may make any other order that it considers appropriate.

26. These provisions of the EP&A Act were analysed and construed by Bignold J in Ireland v Cessnock City Council (1999) 103 LGERA 285 (see especially pars 8-13, 48-68, and 92-99).

27. Relevantly, Bignold J held that the issue of a building certificate, where Council is not bound to issue one pursuant to s 149D, is discretionary. His Honour was asked if the Council could issue a building certificate in circumstances where the building was subject to an order requiring demolition. In that case an order for demolition had been made, but stayed, by me in earlier proceedings - Cessnock City Council v Ireland & Anor, (matter 40073 of 1998, unreported, 9 October 1998).

28. In the Irelandv Cessnock litigation, the relevant entity was indeed a “building” and, in par 69 of Bignold J’s judgment, His Honour held that Council was entitled to issue a certificate where the court had declared the building unlawful, and had ordered that it should be demolished.

29. His Honour’s views in Ireland v Cessnock were summarised in his later judgment in the same matter [1999] NSWLEC 250, at par 38. In those later proceedings His Honour directed the Council to issue of a building certificate to Ireland, without imposition of any terms or conditions.

30. I draw a clear inference from Ireland v Cessnock that a building certificate can be issued in circumstances where a Council has issued an order under s 121B.

The parties’ contentions

31. Mr Clay, on behalf of the applicant, contends that the pond is a “structure” or “part of a structure”, and, therefore, a “building”. The applicant placed sandstone boulders in a particular way which was not random. They were not mortared together, but they were placed pursuant to an engineering design for a particular purpose, i.e. not just for the excavation of a hole - the wall so “constructed” makes a difference. At the end of the construction works it will be 1m above ground level and will play an integral role in the mitigation of environmental harm or impact from the works as a whole. The Building Code of Australia regards a “retaining wall” as part of a building. In design or purpose, this construction is in essence a building. The material used is boulders and not a manufactured product, but if it were bricks made into a wall, there would be no doubt.

32. Mr Larkin, on behalf of Council, submits suggests that this “construction” is a “work” or “works”. As depicted in the photographs, the ground was excavated, a pipe was placed in the ground, a spillway was formed using boulders, gravel was spread, and a “liner” placed on the ground. Mr Larkin acknowledges that every “building” is a “work”, but submits that not every “work” is a “building”. If the terms were completely interchangeable, many of the words in the Act would have no work to do. What has been done here is sophisticated stockpiling, designed to prevent collapse. Excavation and stockpiling are not buildings, nor is the placement of a pipe in the ground, the spreading of gravel, or the laying of a liner. See Cariste Pty Ltd v Blue Mountains City Council CA 40217/93 (18 December 1996), (“Cariste”), a case involving a much larger “pond” than here.

The relevant authorities

Cariste v Blue Mountains City Council

33. In Cariste, on appeal from Pearlman J, the judgment in the Court of Appeal was given by Simos AJA, with whom Clarke and Beazley JJA concurred without elaboration. The central issue was the question of physical commencement and its compliance with the terms of the consent.

34. Pearlman J found that the works which had been carried out on the subject site were not works specified in the development consent, nor referred to in the documents accompanying the development application. They comprised, inter alia, excavation of two “dams” (one intended to be a bird lagoon, and the other a macrophytic pond), stripping and stockpiling of soils, construction of a brick “pen” (intended to be a reptile pit), and construction of concrete footings in the location of the “main building” shown in the plan. A siltation fence and barriers had also been erected, associated trenches dug, and piping laid.

35. The respondent council argued that these works were not physical commencement because they were merely preparatory. Alternatively, it argued that the works were unlawful because they either had no consent, or were not in accordance with a consent.

36. Pearlman J held that the development which was the subject of the consent had not been commenced, and that the consent had lapsed.

37. Simos AJA drew a distinction between a lagoon and “the main building”, and held that the work done in respect of the pond or lagoon constituted physical commencement of the engineering and construction work, which were relevantly building works which required building approval. The plans indicated that the finished pond would include overflow pipes, outlet control structures, spillways and energy dissipators “which were all clearly structures within the meaning of the definition of ‘building’ as including ‘any structure or part thereof’ as contained in the Local Government Act”.

38. Although the work actually done in relation to the pond/dam was limited to the excavation of a trench, and the stockpiling of the excavated soil with topsoil from an adjoining area, and did not involve construction of any of those structures, the work was done by way of commencing the construction of a dam which, when completed, would contain all those structures. Simos AJA said at (p19):

In my opinion, however, since the work done in relation to the proposed pond was limited to excavation and stockpiling of the excavated soil and topsoil from an adjoining area, and did not involve commencement of work on any of the structures described above, the work done was not in respect of a ‘building’ as defined, did not require building consent and was not unlawful.

39. His Honour noted that the excavation works did not “in my opinion, fall within the ordinary, natural meaning of the word ‘structure’”, and, giving the relevant provisions a “purposive” interpretation, as required by the decision of Mahoney JA in Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 (“Mulcahy”), His Honour found (p19):

this particular dam, intended to be a macrophytic pond, to the extent to which it had been constructed in the particular circumstances of this case, prior to the lapsing date of the development application … was not of such a kind or nature as was intended by the legislature to be regulated by the relevant provisions of the Act relating to ‘buildings’, and which involve concern for such matters as, inter alia, drainage, ventilation, lighting, health and other matters inapplicable to that particular ‘dam’ .

40. Simos AJA went on to say that the “back-filled sewer trench in which PVC pipe was laid” did not require approval, “on the basis that the sewer trench was not simply incidental to a building, but was rather a separate and independent requirement being the subject of its own condition of development consent, …”. His Honour concluded that these were lawful engineering and/or construction works relating to the pond or lagoon and that they had been physically commenced within the meaning of the Act prior to the lapsing of the consent.

41. Simos AJA held that the excavation of a back-filled trench in which PVC pipes had been laid did not constitute that excavation as a “building roadway or carpark”, within the ordinary natural meaning of those terms, notwithstanding that it may be arguable that such work involved “construction”.

Benz v Blacktown

42. In Benz v Blacktown Municipal Council (1971) 25 LGRA 133, Leslie DCJ held that an earthen dam or trench, referred to as an “earthwall water storage tank”, did not constitute a “structure” and so was not a “building” within LGA 1919 s 304.

43. His Honour surveyed a large number of authorities from Australia and England and said (at 137):

The interpretation of the word ‘structure’ has been discussed in a large number of decisions both in England and in Australia but as far as I am able to ascertain always in relation to structures which have been fabricated from concrete, steel, timber, or other such materials and the problem has been, as it is in this case, to find a definition, or description or characteristics of an object which can be called a structure. Many of these cases were decided under the provisions of the English Acts having objects entirely different from the provisions of Pt XI of the Local Government Act and I think for that reason it would be wrong to base a decision upon the meaning of the word ‘structure’ in Pt XI upon those decisions.

44. His Honour then turned his attention to the Australia authorities and texts and discussed at some length Reg. v Lowe (1954) 19 LGR(NSW) 348. Leslie DCJ had some difficulty with that decision, and concluded (at 139-140):

It seems to me that, even if I should regard the approach of the earlier cases as being no longer applicable and, therefore, approach the matter as was done in Reg. v Lowe and should, therefore, discard the opinion of Markell A.J. [ex parte Hunter re Doig (1934) 12 LGR(NSW) 38] , the earth wall with which I am concerned is not a ‘structure’ because I cannot bring myself to the opinion that such a wall is ‘something built up of component parts’ to use the words in Reg. v Lowe or as something ‘having substantially the characteristics of a building or of a permanent framework’ as Roper J. defined a structure [in Australian Gaslight Company v Valuer General (1940) 14 LGR(NSW) 149] or ‘as involving the notion of bringing together a number of distinct and separate physical components’ as Gillard J. would have it [O’Brien v Rosedale Shire (1968) 22 LGRA 262 at 267] unless each grain of earth, which goes to make up the wall, is to be regarded as a separate and distinct component or as a component part. This, in my opinion, was not the sense in which the expression ‘component parts’ has been used in any of the cases.

Parramatta v Brickworks

45. In City of Parramatta v Brickworks Ltd (1972) 128 CLR 1 the relevant planning instrument talked of “building” or “work”, in the context of “existing building” or “existing work”, and the High Court said that the word “work” referred not to a process, but to the physical result of labour done on the land, so that the quarry in that case was an “existing work” within the instrument. The principal judgment of the High Court was delivered by Gibbs J, but Walsh J said (at 6) that a “structure” can be a “work”. Walsh J said:

… this does not mean, in my opinion, that a thing which includes a structure can never be a ‘work’. I find nothing in the language of cl. 33 or in its context to preclude the view that the kiln and the brick pit taken together constitute a ‘work’ within the meaning of cl. 33. It is of no consequence whether or not the equipment used for excavating the clay may also be regarded, … as part of the ‘work’.

46. Gibbs J (at 24-25) said that the brick pit was an “existing work” within cl 33 and that “work” in cl 33 “obviously enough refers to the physical product of labouring operations”. The meaning of the word “work” must depend on the actual language and context of the statutory provision in question. His Honour said:

Having regard to the wide meaning of the word ‘structure’ it is impossible to resist the conclusion that ‘work’ must be intended to refer to something done to the land itself, and that it therefore includes a quarry or mine.

…

I have already indicated that I regard the word ‘work’ in cl. 33 as referring not to a process but to the physical result of labour done on land and the further argument that the work must be capable of coming to an end does not assist the appellant, because obviously the carrying out of the work on the land in question was capable of coming to an end.

Parramatta v Shell

47. In Parramatta City Council v Shell Co of Australia Ltd (1972) 1 NSWLR 483, Street J held at first instance that the “depositing of fill on the land was a ‘work’ as the term was used in the Local Government Act and was a ‘development’ which required consent”. (See pp 488 ff where His Honour discusses Brickworks and the earlier cases therein referred to as well as other cases where excavation and reclamation of land were held to constitute work). His Honour preferred to distinguish works on the basis of scale of development, namely comparing a large sportsground with the construction in a private garden of a small earth pocket into which a shrub might be planted.

Mulcahy v Blue Mountains City Council

48. In Mulcahy, Pearlman J held that gates across the road in a rural context were buildings, and, in the court’s discretion, ordered Mulcahy to remove them. The Court of Appeal held that the discretion to grant the injunction had miscarried, but Mahoney JA (at pp 305-308) discussed the correctness of the view that Pearlman J had taken to the effect that the gates were “buildings”. His Honour found that the correct way of construing the legislation was to adopt a purposive approach. In the course of his discussion, His Honour referred to Reg v Lowe on several occasions, and came to the conclusion (at 307-308):

In principle, the purposive approach to construction of, for example, ‘structure’ or ‘erect’ would proceed in a manner such as the following. The court would determine the purposes which the legislature sought to achieve by prescribing that no structure may be erected without council approval. I shall assume, by way of over-simplification, that that purpose was the safety and stability of the structure. The court would then adopt from among the possible meanings of ‘structure’ and ‘erect’ that meaning which would give effect to that purpose. It would not give to the terms a meaning which had no relevance to the achievement of that purpose. Accordingly, if the setting up inside a house of a set of bookshelves or the construction of cupboards could have no relevance to the safety of what was involved, such things would be held not to be within the meaning of such terms. Such kinds of things would be held not within the meaning of the terms.

…
However, considerations of this kind are relevant to the present case. I shall, in accordance with the way in which this appeal has been conducted, assume that gates of the present kind are structures and that to put them up in a forest area such as the present would be, within the statutes, to erect a structure: cf Local Government Act, s 305. But to apply Pt XI to such gates in a bush setting might be thought to have little or nothing to do with the achievement of the purposes of that part of the Local Government Act. Assuming the statute to apply, the extent of the relevance of the application of it to such gates, is, I think, relevant in determining whether an injunction should go.

Conomos and other recent cases

49. In Conomos v Chryssochoides (1997) 97 LGERA 113, I held that a set of sewer and drainage pipes on the side of a residential building in a city suburb was “a structure or part of a structure”. I surveyed the authorities (at 119-121), including Cariste, Mulcahy, and Burwood Council v Russo (40145 of 1994, 14 March 1995), in which Talbot J held that, as the land was located in a densely populated urban residential area, corrugated iron sheeting was a “structure” requiring approval. I distinguished Mulcahy in so far as it might be said to read down the meaning and application of the word “structure”.

50. In Bowyer v Manly (matter 40305 of 1996, 28 February 1997), Talbot J accepted Mahoney’s JA’s approach in Mulcahy, and Simos AJA’s approach in Cariste, and took a purposive approach to Chapter 7 of the LGA. He also followed the reasoning of Deane J in Sutherland Shire Council v Heyman (1985) 157 CLR 424 and decided that a road was not a “structure”, on the basis that it had its own statute.

51. In Stevens v Cleary (40229 of 1997 24 July 1998), I dealt with two “retaining” walls, one made of brick, and one of logs. I took the view that the log wall was a structure. It was not part of the house or its substructure, but “the public interest dictates [such walls] should be closely regulated in a dense suburban area to ensure proper construction work”.

52. In Garbacz & Ors v Morton & Ors (1999) 108 LGERA 251, I held that the marquee was neither a building nor a structure within the meaning of the Act, generally because the marquee had none of the features of a fixture, and “the public interest does not suggest, let alone dictate that any, let alone every, erection, movement or demolition of it should be the subject of a specific Council approval”.

Conclusion

53. These authorities clearly dictate that the appropriate conclusion for the court to draw in this case is that the “construction” items at issue, as variously described above (in pars 7, 8, 10 and 13), are “works” and not “buildings”. Cariste, Mulcahy and Brickworks are all binding authority on this court, and the other cases are at least persuasive towards the same outcome.

54. Given that conclusion, the court should decline to make the declarations and order sought, and the issue of discretion does not arise.

55. The application is dismissed with costs.

56. The exhibits may be returned.