In the recent decision of Queanbeyan-Palerang Regional Council v Walker [2023] NSWLEC 146 (“the Queanbeyan-Palerang Decision”) the Land and Environment Court ordered that the Council was permitted to carry out demolition and restoration works on a third party’s land to remedy unlawful works carried out by the Respondents.

Background

Council commenced Class 4 civil enforcement proceedings against the Walkers (the First and Second Respondents in the proceedings) seeking declarations and orders that the Walkers had carried out development on their land at Googong NSW without development consent under the Environmental Planning & Assessment Act 1979 (“EP&A Act”). That work comprised:

1. earthworks, resulting in the placement of two large earth mounds;
2. the erection of a building upon a concrete slab;
3. construction of a secondary access to the land from the street; and
4. construction of an internal dirt road along the western side of the land.

The Respodents had, prior to the commencement of the Class 4 proceedings, lodged a development application seeking development consent for the construction of a farm building on their land. However, that development application was refused by Council. The Respondents subsequently commenced Class 1 merit appeal proceedings in the Land and Environment Court seeking orders that the Court approve the development application. In January 2023, the Court refused the development application and dismissed the Class 1 appeal proceedings.

In the Class 4 proceedings, Council contended that while the works carried out would have been permitted with development consent, no such development consent had been obtained and accordingly the works were unlawful. Council sought orders that the unlawful works be demolished and the land restored and rehabilitated, including by the preparation and implementation of a waste report and environmental restoration plan.

The Respondents did not file a notice of appearance in the Class 4 proceedings. They were not in continuous occupation of the land and had listed the property for sale. In those circumstances, Council also sought orders that if the Respondents failed to comply with the orders, Council be permitted to enter the Respondents’ land and carry out the demolition and restoration works and recover the costs from the Respondents.

Court’s Findings

The Court found that the Respondents had carried out development without development consent and ordered that the Respondents carry out demolition and restoration works to restore the land.

The Court had regard to the Court of Appeal’s decision in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-341, which sets out the guidelines applicable to the exercise of the Court's discretion in civil enforcement proceedings. The Court accepted the Council’s submissions at [37] finding that:

1. The planning law breaches were not merely technical and are highly visible from places external to the land.
2. Council had not delayed in commencing the civil enforcement proceedings, following conclusion of the Class 1 merit appeal proceedings.
3. The breaches of planning law have an adverse effect on the environment and the amenity of the locality.
4. The orders sought are seeking to enforce a “public duty” (not a private right) imposed under the EP&A Act to promote the orderly development and use of land.
5. If the Court exercised its discretion in favour of the Respondents, that would be condoning the Respondents’ behaviour which would undermine the orderly enforcement of the EP&A Act.

The Court also accepted Council’s submissions that in light of the environmental harm caused by the planning law breaches (both actual and potential) and the fact that the Respondents were selling the land, it was appropriate to make orders permitting Council to carry out the demolition and restoration works (and seek reimbursement of the costs from the Respondents) if the Respondents failed to carry out the works.

Key Takeaway

While it is the owner of land who will usually be required to carry out demolition and restoration works where a planning law breach is found, this case is an important reminder that the Court does have power under section 23 of the Land and Environment Court Act 1979 and rule 40.8 of the Uniform Civil Procedure Rules 2005 to make orders requiring Council to perform the work (by way of substituted performance).

It is likely that such power will only be exercised where there is evidence of actual or likely environmental harm and where an owner of land is unlikely to comply with the Court orders.