Dincel Construction System Pty Ltd v Penrith City Council

GLEESON JA: I agree with Payne JA.

PAYNE JA: The appellants, Dincel Construction System Pty Ltd (Dincel) and Gaonor Pty Ltd (Gaonor), appeal against orders 4, 8(b), 8(c) and 9 made by Robson J in Penrith City Council v Dincel Construction System Pty Limited (No 4) [2021] NSWLEC 1. The appeal is brought pursuant to s 58 of the Land and Environment Court Act 1979 (NSW). The appellants do not appeal from the declaratory and other relief granted by the primary judge.

Dincel manufactures polymer building formwork. Its primary product, “Dincel Structural Walling”, is a structural walling product used in the building and construction industry. Dincel commenced manufacture of “Dincel Structural Walling” at premises owned by a related company, Gaonor, at 101 Quarry Road, Erskine Park (Erskine Park plant) in 2013. Dincel’s business grew rapidly.

In February 2017, Gaonor received development consent to expand the Erskine Park plant by the addition of two production lines to the then-existing six production lines. Prior to this expansion, Dincel stored product for sale where it was manufactured at the Erskine Park plant. As a result of this increased manufacturing capacity, there was a loss of storage area at the Erskine Park plant together with an increased need for storage space for the Dincel Structural Walling product. As the business required a storage area away from the Erskine Park plant, Dincel negotiated a short-term lease of a site at Minchinbury, expiring in October 2017. Because the lease at Minchinbury was temporary, Gaonor purchased land at 919-929 Mamre Road, Kemps Creek (the Land) in August 2017.

The Land is approximately 5.39ha in size. At the time of purchase, the Land consisted of “mostly grassland with some trees and vegetation” and included a historic dwelling house in the north-west portion of the Land (Bayley Park), which is listed in the Penrith Local Environmental Plan 2010 (PLEP) as a local heritage item.

On 19 December 2017, a development application was lodged with the respondent, Penrith City Council (the Council) on behalf of Gaonor seeking consent for the use of the Land for “home industry”, a use that was permissible in the RU2 Rural Landscape Zone under the PLEP, which applied to the Land. The proposal included earthworks and an external storage area (which was reduced from 11,000m² to 2,500m² by the time of refusal).

On 20 March 2018, the Council refused the development application on the basis that the proposed development was for an industrial activity that was prohibited in the RU2 Rural Landscape Zone. The Council’s reasons for refusal recorded that the proposal was not “home industry”; that there was no heritage statement or visual assessment; and that the proposal was otherwise unsatisfactory in relation to its heritage, traffic and acoustic impacts.

At all relevant times the use of the Land (and the adjacent land at 901-915 Mamre Road, Kemps Creek) for the purpose of storage or as a “warehouse or distribution” centre was a prohibited innominate use under the PLEP.

Around 19 February 2018, Dincel entered into an agreement with a civil works contractor to undertake extensive construction works on the Land including “site clearing, excavation, importation of fill and construction of a hardstand area” (works). The works plan the subject of the agreement was prepared by Burak Dincel, who at all material times was the Chairman, Chief Executive Officer and a director of both Dincel and Gaonor. The works subsequently were carried out on behalf of, or at the direction of, Dincel.

The works, including the importation of approximately 42,000m3 of fill onto the Land, commenced on 23 February 2018 and were initially for the purpose of preparing and creating the hardstand area at the front of the Land.

On 27 March 2018, as a result of complaints received from a neighbour, Council officers inspected the Land and observed that extensive earthworks were being carried out, including that extensive fill material had been imported and deposited on the Land. The Council’s Development Compliance Officer, Joseph Vecchio, spoke to Mr Usta, Dincel’s National Business Development Manager, and advised him that all works should cease.

At a meeting at the Council chambers on 11 April 2018, Mr Usta confirmed that Dincel had undertaken the importation of fill and proposed to use the Land as a storage facility.

On 23 April 2018, the Council served a Notice of Intention to Serve an Order (Notice) pursuant to Div 9.3 of the Environmental Planning and Assessment Act 1979 (NSW) on Gaonor, as the owner of the Land, indicating that the Council intended to issue an order requiring that the unauthorised importation of fill cease immediately and that steps be taken to remove the fill and reinstate the Land to its pre-existing ground level within 50 days.

On 11 May 2018, the Council received detailed written representations on behalf of Gaonor in relation to the Notice and, on 2 July 2018, the Council issued an order to Gaonor (Order) in substantially the same terms as outlined in the Notice, except that it required that the fill be removed and the Land be reinstated by 1 July 2019. No appeal was commenced by Gaonor in relation to the Order.

The initial hardstand area was created on top of the fill which had been imported and kept on the land in contravention of the Order by no later than August 2018. The imported fill was several metres higher than the ground level prior to the importation of the fill.

An aerial image taken on 4 August 2018 shows the creation of a hardstand area and the storage of white Dincel building products:

In November 2018, Dincel engaged a contractor to conduct further works at the southern embankment of the Land near to and on the boundary with 931 Mamre Road and around the existing dam. That dam and area is shown in the bottom left part of the immediately above photograph, on either side of the purple line depicting the boundary with 931 Mamre Road.

On or about 27 November 2018, the Council received a telephone call from a member of the public advising that “hundreds of trucks” were tipping fill material on the Land. On that day and subsequent days, Council officers including Mr Reece, the team leader of development compliance, attended the Land and observed that a hardstand area had been constructed on the Land, and that trucks were tipping further fill material on the Land. Mr Reece observed, and photographed, works that were being undertaken (including the presence of earthmoving machines) on both the Land and 931 Mamre Road, and that Dincel product was being stored on the constructed hardstand area. Mr Reece also observed a steep, un-retained earthen batter (sloping wall) on the boundary of the Land with the property to the south, being 931 Mamre Road. The un-retained earthen batter was approximately five metres higher than the ground level of 931 Mamre Road.

On 29 November 2018, the Council sent an email to Mr Dincel attaching a copy of the Order sent to Gaonor on 2 July 2018 and reminding him that the terms of the Order required, inter alia, that the importation of unauthorised fill material onto the Land must cease immediately.

Mr Dincel replied by email of 29 November 2018 admitting that “additional earth works” had been carried out and that additional fill had been imported onto the Land. Mr Dincel said that this had been done in order to raise the existing dam walls to “prevent water overflowing into the neighbour’s land”. On 30 November 2018, Mr Reece replied, recording that the development was illegal and that it was “not acceptable that fill material continues to be imported onto the [Land] to extend an unlawful batter that exceeds 5 metres in height and now covers nearly the entire [Land]”.

By email of 3 December 2018 to Mr Reece, Mr Dincel admitted that the work had been performed without “DA approval” but stated “I had to do what I had to do for the survival of our business.” Mr Dincel further stated:

Mr Dincel further stated that the growth of Dincel’s business required the establishment of a storage yard at 919 Mamre Road and that:

On 18 December 2018, Mr Reece undertook a further inspection of the Land and observed that the hardstand area at the front of the Land was being used to stack product labelled “Dincel” to a height of approximately four metres. He also observed that a demountable toilet block, a site office, a shade structure, and a fuel cell had been erected. The southern side of the Land (close to the boundary with 931 Mamre Road) had been raised with the installation of an additional hardstand and a kerb and gutter had been constructed from the edge of the hardstand.

On 20 and 21 December 2018, further emails were sent to Mr Dincel requiring the removal of the material from the Land so as to comply with the Order. On 22 March 2019, Mr Reece sent a further email to Mr Dincel which stated that the Council was aware that earthworks were continuing to take place at the rear of the Land, that fill continued to be imported and that the filling extended over the boundary of the Land onto 931 Mamre Road. Mr Reece also stated that the Council “will be taking regulatory action to have all the fill material removed”, and that “continued non compliance will result in Council seeking an immediate injunction in the Land and Environment Court”.

An aerial image taken on 29 December 2018 depicts the state of the additional imported fill material. By this time, approximately 20,000m3 had been imported:

On 8 April 2019, Mr Reece again inspected the Land and observed that further fill material had been imported onto the Land, that the ground level of the Land was now approximately six metres higher than the original ground level, and that fill material continued to be deposited over the boundary of the Land onto 931 Mamre Road. He also observed that a new part of the Land was now covered with a black hardstand surface, similar to the hardstand that had previously been constructed at the front of the Land.

An aerial image taken on 7 April 2019 shows the new hardstand area under construction with concrete guttering forming its boundary. The new hardstand area is depicted as being the area within the white rectangle on the photograph:

The completed additional hardstand area is shown in the aerial photograph below:

On 2 May 2019, Mr Reece again attended the Land and observed trucks carrying Dincel product entering the Land. On that occasion he recorded 57 trucks either delivering or removing Dincel product. He also observed that the new part of the Land being used as a storage area was approximately 8,000m².

On each of 18 December 2018, 26 March 2019, 8 April 2019 and 2 May 2019, Council officers attended the Land and observed that Dincel continued to use the constructed hardstand areas on the Land for the storage of Dincel product.

In total the works undertaken were significant and involved the importation and deposition of approximately 42,000m³ of fill on the Land and the construction of a handstand area of approximately 33,000m² (3.3ha). The area on which fill has been deposited on the Land is larger than the later constructed hardstand areas and includes mounding on the eastern boundary.

The imported fill also created steep, possibly unstable, batters (sloping walls) along the southern boundary of the Land beside 931 Mamre Road. During November 2018, fill was deposited on 931 Mamre Road (via Gaonor’s land) and used to construct an earthen mound. The precise circumstances of the deposit of the fill to create the earthen mound on 931 Mamre Road were controversial and at the heart of the issues on the appeal. I will return to that topic when addressing ground 10.

It was common ground that development consent is required for all of the earthworks described above and that no development consent was ever granted for these works. The parties also agreed that development consent is required for the use of the Land for delivery, storage and dispatch of Dincel product and that no development consent was ever granted for this use. It was agreed that, since at least 18 December 2018, Dincel has been using the Land for the delivery and storage of its product, and for the dispatch of its product to customers.

Dincel also stored its product on the neighbouring land at 901-915 Mamre Road, Kemps Creek, owned by Olathree Pty Ltd (the Olathree Land) from April 2018 to 2 December 2019. Dincel had an arrangement with Olathree Pty Ltd to occupy (for a fee) part of the Olathree Land for storage of Dincel product. The parties agreed that the use of the Olathree Land for storage purposes required development consent and no relevant consent had been obtained.

On 20 May 2019, the Council commenced the present proceedings.

On 28 August 2019, Willowtree Planning Pty Ltd lodged with the Council a planning proposal prepared on behalf of Gaonor seeking that the PLEP be amended (in a manner described as akin to “spot rezoning” [1] ) so that “storage” was included as a permissible use of the Land. This planning proposal was not supported by the Council and was later overtaken by the appellants’ view that a “planning pathway” was otherwise available under the State Environmental Planning Policy (Western Sydney Employment Area) 2009 (WSEA SEPP).

On 18 May 2020, Gaonor lodged a development application relying upon cl 12 (now repealed) of the WSEA SEPP which (at least as at the time of the primary judgment) the appellants maintained, and the Council denied, provided a pathway for development consent to be given for use of the Land for storage. Later amendments to the WSEA SEPP on 11 June 2020 rendered this development application otiose.

On 3 July 2020, a further development application was lodged for development consent for “… authorisation for the use of the existing hardstand area on [the Land] for the purpose of storage”. Following the Council’s deemed refusal of this development application, there was a Class 1 appeal in the Land and Environment Court which has since been discontinued.

Dincel accepted that its conduct in relation to the Land constituted a breach of s 4.2 of the Environmental Planning and Assessment Act. The issues before the primary judge were thus relatively confined. Those issues were: first, whether Dincel’s actions were prohibited under s 4.3 of the Environmental Planning and Assessment Act and therefore whether declaratory relief should be granted in that respect; secondly, whether any relief should have been suspended, deferred or otherwise stayed for a period of time to allow the appellants time to attempt to “regularise” their use of the Land and/or to cease operations on the Land; thirdly, whether the appellants should have been required to restore the Land to its state prior to the unauthorised development; and fourthly, whether relief should have been ordered with respect to the fill dumped on 931 Mamre Road without development consent.

Section 4.2 of the Environmental Planning and Assessment Act provided:

As to breach of s 4.2 of the Environmental Planning and Assessment Act, the primary judge found:

Section 4.3 of the Environmental Planning and Assessment Act provided:

As to breach of s 4.3 of the Environmental Planning and Assessment Act, the primary judge found at [112] that up until 11 June 2020, being the date upon which the WSEA SEPP was amended, the use of the Land for the purpose of storage was prohibited. However, the primary judge did not consider it was appropriate to make a declaration that Dincel was in breach of s 4.3:

As to the issue of injunctive relief, the primary judge found:

The primary judge gave further detailed reasons for making the injunctive orders which are the principal subject of this appeal:

Consequent upon those findings, the primary judge held that injunctive relief should be granted. To ameliorate the effect of that injunctive relief, the operation of the injunction relating to use of the Land was suspended for a period of four months. In relation to the mandatory injunction requiring removal of the unlawful works, restoration of the ground level of the Land, and disposal of the unlawful landfill, the relief was suspended for a further six months (being 10 months from judgment).

The primary judge also held that Dincel was required to restore the areas of 931 Mamre Road that had been affected by the unlawful works and use.

The primary judge made the following orders:

It will be recalled that it is only orders 4, 8(b), 8(c) and 9 which are the subject of the appeal.

Orders 3, 6 and 8(a) above are orders made in relation to the Olathree Land. Dincel does not appeal against those orders.

On 29 March 2021, the Registrar of the Court of Appeal made the following order:

There was no challenge to the central conclusions of the primary judge that the admitted breaches of the planning laws by Dincel were significant, the unlawful conduct had caused obvious environmental harm and the conduct of Dincel was “indicative of a complete disregard for the planning framework” (see at [201]).

The essential question that arises is whether the primary judge failed properly to exercise his discretion when making remedial orders requiring Dincel to remove the fill it had unlawfully imported onto the Land (approximately 42,000m3) and the hardstand it had unlawfully constructed (approximately 33,000m2).

The amended notice of appeal filed on 30 March 2021 contained the following grounds:

By an amended notice of motion filed in Court on 13 May 2021, the appellants sought to adduce further evidence comprising the affidavit of Raj Prasad affirmed 9 February 2021, the exhibit to that affidavit marked “RP-1” and the affidavit of Eser Usta affirmed 11 May 2021 pursuant to s 75A(7) of the Supreme Court Act 1970 (NSW). The Prasad affidavit and accompanying exhibit sought to demonstrate that Dincel has been suffering continuing losses over the last two years (due to the onset of the COVID-19 pandemic and substantial downturn in the high-rise residential market) and most of its non-cash resources would not be readily realisable by sale or be able to be used as security for a borrowing. It was submitted that this evidence supported a finding that the likely costs of complying with orders 8(b) and 8(c), in conjunction with the costs of complying with order 5, were likely to cause Dincel to become insolvent. The appellants submitted that if Dincel were to become insolvent it would be unable to comply with orders 8(b) and 8(c) and there would be a real risk that any partially completed reinstatement works would be abandoned.

The appellants submitted that the Usta affidavit was necessary to bring the Court up to date with very recent events concerning the discontinuance of the Class 1 appeal in the Land and Environment Court, as there was no development application yet to be determined. The Council agreed. The Usta affidavit should be treated as evidence in the appeal.

The Council did not oppose the application to adduce the Prasad evidence, as the evidence was only relied upon in circumstances where this Court found error and re-exercised the discretion itself. Senior Counsel for the appellants confirmed that this was the only basis upon which the further evidence was led.

On this limited basis, the Prasad evidence was allowed. The Prasad evidence is only admissible to the extent that it is necessary for this Court to re-exercise a discretion.

Sections 9.45 and 9.46 of the Environmental Planning and Assessment Act empower the Land and Environment Court to remedy or restrain a breach of that Act. Those provisions relevantly provide:

This Court has described the discretion to make “such order as it thinks fit to remedy or restrain the breach” as “an extremely wide charter”: F Hannan Pty Ltd v Electricity Commissions of New South Wales [No 3] (1985) 66 LGRA 306 at 311 per Street CJ. That width is apparent not only from the terms of s 9.46, but also from ss 22 and 23 of the Land and Environment Court Act: F Hannan at 312. The Court is empowered to intervene in such a way “as will best meet the practicalities as well as the justice of the situation before it”; its duty, in formulating “such order as it thinks fit”, is to have regard to the pursuit of the objects of the Environmental Planning and Assessment Act: F Hannan at 311, 313. At 313, Street CJ observed that this involves, in appropriate cases:

This Court has observed that the discretion should not be given an unduly restricted operation because it is “just as much part of the structure and scheme of the Act, for the enforcement of planning law, as are the other parts”: ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 82C.

In Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335, at 339-341, Kirby P set out a number of “guidelines” which are applicable to the exercise of the discretion:

These factors were again referred to by his Honour, with Samuels JA and Hunt AJA agreeing, in Fat-Sel at 82D. A further example of the exercise of the relevant discretion by this Court is found in Botany Bay City Council v Saab Corp Pty Ltd (2011) 82 NSWLR 171; [2011] NSWCA 308.

Given that the essential subject matter of this appeal is the exercise of the discretionary judgment to grant relief, there is a “strong presumption” in favour of the correctness of the decision appealed from; the decision should be affirmed unless the appellate court is satisfied that it is clearly wrong: Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 at [17]-[18], applying the dictum of Kitto J in Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25 at 627. The approach in appeals of this kind must be one of “caution and restraint”, bearing in mind that “minds can so readily differ over most discretionary or similar questions”: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at [72].

In their submissions, the appellants emphasised the existence of the discretion to decline to order injunctive relief despite a breach of the Act being established. Two cases in particular were referred to.

In Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302, the Council had sought an order for the removal of gates erected by the landowner across a private road. The primary judge ordered that the gates be removed. This Court held that the discretion had miscarried because the erection of the gates in the “midst of a forest area distant from any habitation” would not affect the objectives of the legislation and because the judge had not properly taken into account that the road was privately owned and the purpose or effect of the removal of the gates would be to allow and encourage trespass on private land. Meagher JA concluded that the judge’s reasons for exercising the discretion amounted to a “mistake of law, and one of no mean order”. A case involving the erection of gates on a private road distant from any habitation does not provide any real analogy with the present case.

In Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317; (1999) 106 LGERA 243, the primary judge had refused to grant a declaration that a development consent for the emplacement of coal refuse had lapsed. This had the effect that a third party was permitted to transport coal refuse to the site for emplacement there, with potential adverse environmental effects (which had been accepted by the respondents). The judge found that the consent had lapsed but refused to make the declaration concluding, inter alia, that the breaches were merely technical. This Court concluded that the breaches were “extremely serious” and that the Court was “in no doubt” that the discretion not to make the declaration miscarried. I do not think that any relevant principle supportive of the appellants’ case can be derived from Coalcliff.

The submissions of the appellants tended to overstate the factors tending in favour of the exercise of the discretion not to make an order in this case. None of the cases cited by the appellants favoured the exercise of the discretion not to make an order in this case whether by identification of principle or application by analogy. Kirby P in Sedevcic was at pains to emphasise that the discretion is not fettered and is not limited either to particular classes of case or to limited or special cases. Considered from that starting point, a number of the matters identified by Kirby P in Sedevcic are of particular importance in this case:

The appellants accepted that to succeed on this ground House v The King error needed to be established. The appellants submitted that the primary judge did not make a sufficiently specific finding as to the financial loss Dincel would suffer if it was required to reinstate the land and remove its products from the Land within 28 days other than to describe it as “significant”. The appellants submitted that the primary judge was required to identify the likely loss with greater precision in order to evaluate the likely financial impact of the Court’s orders on Dincel and to give informed consideration to the likely consequences of those losses.

The appellants submitted that, in light of the unchallenged evidence of rectification costs in the order of $19.5 million, as well as the unquantified losses arising from cessation of the use of the Land and the need to reinstate 931 Mamre Road, it was incumbent on the primary judge to make a finding as to whether a reinstatement order would be likely to cause Dincel to become insolvent, with the consequences including that Dincel’s employees might lose their jobs. It was also submitted that the primary judge had overlooked the fact that the result of the insolvency would be that the reinstatement works would not be completed. It was submitted that the primary judge erred in failing to take those matters into account in the exercise of discretion, either in any legally adequate way or at all.

I have concluded that ground 1 of the appeal should be dismissed. The primary judge explicitly identified that he was taking into account the potential hardship that reinstatement orders would cause to Dincel and its employees. The primary judge also took into account the potential for employees to be retrenched and that significant costs would be incurred in attending to any restoration ordered:

The primary judge gave four reasons why he did not find the evidence of hardship to Dincel and its employees sufficiently persuasive such that injunctive relief should not be ordered:

The appellants do not challenge those findings. The primary judge’s reasons are persuasive as to why it was proper to treat the potential insolvency of Dincel and the potential consequences for its employees as not determinative. No error was shown in that conclusion. Dincel is a successful business. Even assuming that insolvency was a likely outcome of complying with the orders, there would be myriad reconstruction possibilities available to an administrator or liquidator, which would have the likelihood of protecting the positions of employees.

I reject the submission that it was necessary for the primary judge to state with any greater precision a precise cost of complying with the order he was considering making in order properly to exercise the discretion. His Honour was well aware that the claimed costs of restoration were in the order of $19.5 million. The primary judge did not err in describing this as a “significant financial loss”. This was a sufficient description.

Dincel embarked for its own commercial purposes on a significant development which involved dumping a great deal of potentially contaminated fill on the Land. Dincel knew that development consent was required to act as it did and knew that it had not secured that development consent. Dincel, knowing that it was not authorised to act as it did, persisted in the face of the Order and knew of the clear risk that it may be ordered to carry out remediation of the Land.

Whilst the adverse financial consequences to Dincel (and the consequent possible impacts on its employees) of granting injunctive relief were a relevant consideration to take into account, those consequences were sufficiently taken into account by the primary judge. The primary judge accepted that the orders would impose a significant financial impact upon Dincel. The primary judge recorded the submission that “it may lead to Dincel’s insolvency.” Having regard to that possible outcome, the primary judge concluded that the potential insolvency of Dincel was not determinative. There was no House v The King error demonstrated in that conclusion.

The consequences to Dincel were weighed against the legislative purpose of upholding the planning laws in the face of deliberate and serious breaches of those laws. If Dincel’s conduct was condoned by the favourable exercise of the discretion under s 9.46, the equal and orderly enforcement of the Act would be seriously undermined. A sense of inequity would be created in those companies and their employees who have complied with the requirements of the planning laws.

During nearly the whole time that the unauthorised fill was being dumped on the Land, Dincel knew that it was the subject of the Order, which it simply ignored. It was only by reason of Dincel’s contumelious disregard for the Order and the law in general that by the time the matter came before the primary judge there was a “static” development comprised by the hardstand and surrounding earthworks on the Land. The primary judge took into account the fact that this unauthorised development could only be remedied at great cost and inconvenience to Dincel. There was no error in his Honour not giving that matter greater weight, let alone the determinative weight the appellants submitted it should have been given. There was a need to balance, on the one hand, the public interest in equal compliance with the law and, on the other, the degree of irremediability occasioned by the breach and the expense or inconvenience which would follow the law’s enforcement. The primary judge conducted such a balancing exercise.

The cost and inconvenience to Dincel of compliance with the law was also ameliorated by the postponement of the operation of the injunctive orders made by the primary judge for 10 months from judgment. This was entirely consistent with Sedevcic in the circumstances of this case. The appellants’ submission that the primary judge did not properly take into account the financial costs and inconvenience to Dincel, and its possible insolvency as a result, cannot be accepted. No error has been shown in the approach of the primary judge, let alone error amounting to House v The King error.

Ground 1 should be rejected.

Grounds 2, 3 and 4 of the notice of appeal raise different aspects of essentially the same complaint. In order to succeed, the appellants need to demonstrate House v The King error.

In the proceedings below, the appellants sought the suspension of any injunctive relief for “at least 18 months” to allow them the opportunity to “regularise” the use of the land by making a development application and, if that development application was unsuccessful, to exit the Land in a staged manner. It was submitted that any reinstatement orders made by the Court should have been conditional upon the appellants not obtaining development consent to make lawful the continuing storage use of the Land. The primary judge found that no significant weight should be placed on this possibility on the basis that “there appears a real concern that a development consent cannot validly be granted for the development that has already taken place”.

The appellants submitted that the primary judge’s exercise of discretion under s 9.46 miscarried and the fact that Gaonor might have been able to “regularise” the development ought to have been given significant weight. It was submitted that the primary judge did not grapple with the appellant’s argument and the realistic possibility that the storage use of the land might be made lawful was a matter of such significance that his Honour should not have dismissed it out of hand.

The primary judge was well aware of this issue and took it into account:

His Honour again referred to the suggested “regularisation” of the use of the Land when it came to considering the grant of injunctive relief:

After an extensive discussion of the relevant factors in the exercise of the discretion, his Honour returned to the specific topic of “regularisation” in the context of the then-pending Class 1 appeal:

The first difficulty with the appellants’ ground 2 is that a development consent could not validly have been granted to “regularise” the development that had already taken place. The language adopted by the appellants of “regularising” a development that had already taken place must be approached with considerable caution. It may be possible to “regularise” unlawful use by obtaining a development consent for that use, but it does not follow that this principle extends to “regularising” the erection of a building or performance of works, which are different categories of development from use. Section 6.8 of the Environmental Planning and Assessment Act deprives a construction certificate of the effect of “regularising” development commenced without development consent:

This difficulty was expressly recognised by the primary judge and given weight as part of the balancing exercise, albeit that it was not given “significant weight”.

The primary judge specifically took into account the possibility that Gaonor might have been able to obtain development consent for the “use” of the hardstand. His Honour was not required to give that matter any significant weight, let alone determinative weight. The bare possibility that the appellants would be permitted to continue to enjoy the fruits of their breach of the law was not a matter which required the primary judge to take any different approach.

It is correct that s 4.69 of the Environmental Planning and Assessment Act appears to contemplate that an unlawful use could be made lawful in future by a subsequent development consent. However, s 4.69 refers only to “use”, and not to “the erection of a building” or “the carrying out of a work”:

The primary judge took the potential to “regularise” the use of the Land into account. No error was shown in the way his Honour did so. None of the cases relied upon by the appellants concerning “regularising” a use which had hitherto been unlawful took the matter any further. In Barton v Orange City Council [2008] NSWLEC 104, Biscoe J, in context, was saying no more than that in some cases it may be appropriate to suspend the operation of a demolition order to allow an application to be made to use the building. In Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114, Biscoe J again stayed the operation of injunctions his Honour proposed to grant to allow the respondent to seek development consent for the use of those works. In Tynan v Meharg (1998) 101 LGERA 255 at 259, Stein JA in this Court said, in obiter, that the jurisdiction to grant an injunction may be “softened” or “mollified” by suspending the operation of the order to allow the appellants the opportunity to make fresh applications to the council permitting the use of the structure. An example of a case where this Court stayed the operation of injunctive relief for three months to permit consideration of an application to “regularise” the permitted use of a quarry is Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147. That case is an application of the distinction I have referred to above and provides no support for the proposition that a development carried out without consent may be “regularised”.

Fundamentally, ground 2 must fail as the primary judge significantly ameliorated the impact of the injunctions granted by suspending their operation for some months. There was no error in the primary judge’s approach to the balancing exercise required to determine the appropriate time for the suspension of injunctive relief. I reject the appellants’ submission that any reinstatement orders should have been expressed to be conditional upon the appellants not obtaining development consent to make lawful the continuing storage use of the Land. Any such condition may, in effect, have rendered the injunctions incapable of operation. There would be nothing preventing the appellants from making multiple development applications to use the Land. If the injunctive relief was conditioned by the appellants not obtaining development consent, it would always be open to argue that the condition had not been fulfilled as a further application could possibly be made. The primary judge was correct not to impose any such condition.

No error has been shown in the approach of the primary judge to Gaonor’s alleged opportunity to “regularise” the development, let alone House v The King error.

Ground 2 should be rejected.

Ground 3 is closely related to ground 2. The appellants submitted that, in not placing “significant” weight on the fact that Gaonor had lodged a development application, the primary judge thereby took into account an irrelevant matter. That irrelevant matter was said to be that development consent could not be granted for works that had already been constructed.

The appellant submitted that, if reinstatement orders were appropriate, orders 8(b) and 8(c) should have been conditioned such that they allowed sufficient time for compliance to enable the development application to be determined, and not come into operation in the event that development consent was obtained.

I would reject ground 3.

The fact that the development had already been carried out and could not be “regularised” was a matter not given “determinative weight” by his Honour as the appellants contended for but, rather, it was one of many factors that the primary judge had regard to. The fact that development consent, as distinct from consent to use land, can only be granted prospectively was not an irrelevant consideration. In addition to what I have said at [87]-[92] above, I agree with the following explanation in Signorelli Investments Pty Ltd v Sutherland Shire Council [2001] NSWLEC 78; (2001) 114 LGERA 27 at [20]:

The works are and will remain unlawful and consent, if obtained, would “regularise” only their future use and not their construction. Why the prospect of a person obtaining consent to use existing works should constrain the discretion of the Land and Environment Court to order the removal of those works if they were undertaken unlawfully was not satisfactorily explained by the appellants.

The appellants’ submission, that development consent for the dumping of the fill and building of the hardstand could never be obtained was “irrelevant”, if correct, would turn on its head the principled exercise of the discretion to grant relief under s 9.46. If correct, the appellants would be able to insist that the prospect that development consent for use of the Land might be granted in the future must be considered shorn of the relevant context; that the development was conducted without development consent and that the absence of that consent could not be remedied.

The appellants’ submission that orders 8(b) and 8(c) should have allowed sufficient time for compliance to enable the development application to be determined fails at the first hurdle. As I have found in addressing ground 2, the primary judge properly conducted the balancing exercise required to determine the appropriate time for the suspension of injunctive relief. No error, let alone House v The King error, was shown in his Honour’s approach.

Ground 3 should be rejected.

Ground 4 is a further elaboration of essentially the point made in grounds 2 and 3.

The appellants submitted that the primary judge failed to consider whether the existence of Gaonor’s development application was a compelling justification for ordering that reinstatement would not be required in the event that development consent is granted. It was submitted that his Honour’s analysis was incorrectly confined to the question of whether this was a circumstance that should affect the timing of any injunctive relief.

The primary judge did not err by responding to the submission that was put to his Honour, that any injunction should be stayed for 18 months, in the terms in which it was put. There was no error shown in his Honour failing to regard the prospect that development consent for use of the Land might be obtained as a dispositive reason for not making any order for remediation of the Land.

Ground 4 should be rejected.

Ground 5 was not pressed at the hearing of the appeal.

The appellants submitted that reinstatement of the Land would serve no proper planning purpose because it was overwhelmingly likely that the Land would be developed as industrial land shortly after it has been reinstated. The appellants relied on the expert evidence given by Mr Anzellotti, the Council’s planning expert in the proceedings below. It was submitted that it would be “Sisyphean” to require Dincel to reinstate the Land.

The appellants submitted that a stated object of the Environmental Planning and Assessment Act was the “orderly and economic use and development of land”. This object, it was submitted, plainly includes decision-making on a proper planning basis. It was therefore necessary for his Honour to have considered whether the reinstatement orders he made served any proper planning purpose.

I am unable to accept the appellants’ submission.

The relevant power to grant an injunction is premised upon a breach of the law. Where the breach of the Act has the effect of altering the condition of, relevantly, land, the Court is given power to require the reinstatement, so far as is practicable, of that land to the condition or state the land was in immediately before the breach was committed. In exercising that power the Land and Environment Court’s function is to make such order as it thinks fit to remedy or restrain the breach. It is remedying or restraining a breach of the Act which is at the heart of the Court’s power. Contrary to an assumption apparently underlying the appellants’ case, the Land and Environment Court is not, in circumstances such as the present, exercising the functions of a consent authority. Prima facie, a breach of the Act ought to be remedied. Kirby P said as much in Sedevcic: “if unlawful exceptions and exemptions became a frequent occurrence, condoned by the exercise of the discretion under s [9.46], the equal and orderly enforcement of the Act could be undermined.” Upon proof of breach of the Act, the Land and Environment Court is empowered to order that things be put back the way they were. The exercise of discretion ensures that where an outcome of this kind is disproportionate or unfair, the effect of the exercise of the power may be ameliorated. The point for present purposes, however, is that the Court does not need further justification to make a remediation order beyond a proven or admitted breach of the Act. In particular, prior to granting relief, the Court is not required to find a “proper planning purpose” in the grant of injunctive relief.

It would be corrosive of public trust in the operation and enforcement of the planning laws if blatant, deliberate and serious breaches of those laws were ignored on the basis that a planning purpose needed also to be shown before remediation could be ordered. It would be destructive of the “orderly and economic use and development of land” if the rights and interests of the vast majority of land users who operate within the framework of the planning laws came to believe that deliberate and serious non-compliance with laws would be ignored by this Court.

Further, and contrary to the appellants’ submissions, the Council’s planning expert, Mr Anzellotti, did not say that that it would serve no planning purpose to require the reinstatement of the Land. The evidence he gave was much more circumspect:

Mr Anzellotti’s evidence, fairly read, was that:

The primary judge did not err in taking into account “the public interest which exists in the orderly development and use of the environment” as part of the required weighing exercise. To the contrary, on the unchallenged findings of fact made by the primary judge, the suggestion that his Honour should have concluded that the actions of the appellants promoted the “orderly” use of land cannot be accepted.

I would reject ground 6.

The appellants submitted that although the primary judge found that “there has been obvious environmental harm caused by the unlawful conduct”, his Honour did not analyse how the reinstatement orders would remedy that harm. It was submitted that the discretion being exercised under s 9.46 required the primary judge to consider whether any relief would “remedy … the breach”. It was submitted that the primary judge was required to consider first, what environmental harms were caused by the unlawful development; secondly, whether the reinstatement orders would in fact remedy those harms; and thirdly, whether those harms could be remedied by less onerous means so that the orders did not go beyond the attainment of their legitimate objects and serve no purpose other than to punish Dincel.

The appellants submitted that none of the environmental impacts addressed by the primary judge at [185]-[192] (relating to contamination, stormwater, heritage, traffic, geotechnical, acoustic and visual impact issues) provided rational justification for the reinstatement orders, and, on the evidence, the only conclusion open to his Honour was that reinstatement would cause greater environmental harm than if the Land remained in its current condition.

Ground 7 suffers from the same fundamental problem as ground 6. It is remedying or restraining a breach of the Act which is at the heart of the Court’s power. Contrary to an assumption apparently underlying the appellants’ case, the Land and Environment Court was not, in exercising the injunction power in this case, exercising the functions of a consent authority. Prima facie, a breach of the Act ought to be remedied.

The appellants’ suggested three stage approach to the grant of an injunction is inconsistent with the statutory power and the relevant function here being exercised. The suggested requirement that the Court must first consider what environmental harms were caused by the unlawful development and whether the reinstatement orders would in fact remedy those harms would be to confuse the present task with the functions of a consent authority.

In any event, it is insufficient for the appellants, who accept the need to establish House v The King error, merely to criticise findings as to some of the particular environmental impacts found by the primary judge. The appellants’ selective attempt to identify error fails. There was no error in the primary judge’s approach to each of the environmental issues on which the parties engaged.

Disagreement with the appellants’ submission that restoration or reinstatement would cause greater environmental harm than if the Land remained in its current condition does not establish error, let alone House v The King error. The primary judge was correct to conclude that the environmental harm caused by the appellants here was “obvious”.

I would reject ground 7.

The appellants submitted that the reinstatement orders are out of all proportion to the ends sought to be achieved by the statute and that they place an enormous financial burden on Dincel (and its employees) without securing any practical remedial benefit.

It was submitted that the hardships imposed by the reinstatement orders are not necessary to achieve the remedial objects of s 9.46 of the Environmental Planning and Assessment Act. It was said that the orders do not address the contamination, stormwater, heritage, traffic, geotechnical, acoustic and visual impacts associated with the development and cannot be justified on environmental or planning grounds. The appellant submitted that, in the absence of any remedial justification for the severity of the reinstatement orders, this Court would be compelled to find that orders 8(b) and (c) serve no purpose other than to punish Dincel for its breaches of the law.

I disagree.

The orders made by the primary judge requiring remediation were neither unreasonable nor unjust, having regard to all of the relevant factors. In suspending the operation of the orders for a period of four months and six months respectively (cumulatively 10 months), the primary judge appropriately ameliorated the effect of the injunctive relief.

This was a clear case. The admitted breaches were very serious. The breaches were deliberate and the law was flouted. There is an important public interest in the orderly enforcement of the law. Dincel, its owners, and senior management deliberately flouted the law. These are factors, individually and collectively, relevant to the exercise of the discretion. The submission that the reinstatement orders are unreasonable or plainly unjust must be rejected.

Ground 8 should be rejected.

The appellants submitted that it was procedurally unfair for the primary judge to allow the Council to seek injunctive relief with respect to 931 Mamre Road for the first time in closing submissions. It was submitted that the Council did not seek any injunctive relief in respect of that land in its summons or amended summons, and did not plead any facts capable of providing a basis for any injunctive or declaratory relief relating to that land in its points of claim. It was submitted that the Council did not seek leave to amend further its amended summons or points of claim at any stage throughout the hearing, and did not otherwise notify the appellants of its intention to seek injunctive relief in respect of 931 Mamre Road until its closing submissions. It was submitted that this deprived the appellants of the opportunity to adduce lay and expert evidence directed to matters material to the exercise of the Court’s discretion.

The appellants submitted that the orders require Dincel to carry out works on 931 Mamre Road that go beyond ancillary works on the boundary that would be required to reinstate the Land, and it is no answer to say, as the primary judge did (at [224]), that because any restoration would involve some works on 931 Mamre Road it was appropriate for the restitution order to extend to works on that land.

I would reject ground 9.

The complaint that the Council ran a case that it had not pleaded takes the appellants nowhere unless it is also shown that, by allowing that case to be run, the primary judge fell into appealable error. There was no such error and the appellants were not taken by surprise by the Council’s request for orders to be made requiring removal of the unlawful fill from 931 Mamre Road.

At least by the time of the close of the Council’s case in the court below, it was apparent to the appellants that the Council’s case was that Dincel had engaged its contractor to undertake importation of fill (and create earthworks) on 931 Mamre Road; that the Council alleged that the importation of fill on that land was unlawful; and that the Council sought orders that Dincel be required to remove the fill from 931 Mamre Road.

It was obvious to the appellants, at least after the completion of Mr Dincel’s oral evidence, that it was a concern of the primary judge that any order requiring removal of the fill from the southern boundary of the Land would necessarily require the removal of fill from 931 Mamre Road (a concern which was expressed in his Honour’s exchanges with the appellants’ counsel at different times during the hearing). This issue was squarely raised with the appellants on several occasions during the hearing.

The appellants had many opportunities to adduce evidence directed to matters material to the exercise of the Court’s discretion, such as the legality of the deposition of fill and construction of an earthen platform on 931 Mamre Road, but elected not to. No prejudice to the appellants arose from the Council being permitted to seek injunctive relief requiring Dincel to remove the unlawful fill.

The appellants appear to have submitted that the tendering of exhibit W, a letter from the owners of 931 Mamre Road, immediately prior to the commencement of the Council’s closing submissions, over the appellants’ objections on the grounds of relevance, hearsay and fairness, occasioned a denial of procedural fairness. It was submitted that the appellants were denied the opportunity to explore the circumstances in which the purported consent came to be given by Ms Muscat (the owner of the adjoining property at 931 Mamre Road), to speak to Ms Muscat to raise with her the possible inconsistency between her various letters and lastly to cross-examine Ms Muscat on those matters.

This complaint should be rejected. The appellants, after being invited by the primary judge to put an objection to the tender of exhibit W on the basis of its form, did not do so and it should be assumed that the objection was not pressed. Exhibit W was relevant to whether or not Ms Muscat needed to be joined as a party. There was no unfairness to the appellants in its receipt in evidence.

The appellants submitted that Ms Muscat, being the owner of the adjoining property at 931 Mamre Road, was a necessary party to the proceedings. It was submitted that orders 8(b) and (c) directly affected her right to determine when people may enter her property, and she did not consent to orders being made that would affect that right.

The primary judge was correct to conclude that Ms Muscat was not a necessary party to the proceedings. The Council had not alleged that the owner of 931 Mamre Road had breached the Environmental Planning and Assessment Act and no relief was sought against her. Nor was her joinder sought by the appellants. The authorities, together with r 6.23 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), demonstrate that there is a discretion given to the trial judge not to order parties to be joined to proceedings in circumstances where they are aware of the proceedings, have positively assented to an order, but have nonetheless declined to be joined or heard: Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56; Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 at [61]-[62].

I would reject ground 9.

By ground 10(a), the appellants allege that the primary judge failed to consider the financial and other impacts of orders 8(b) and (c) to the extent they relate to 931 Mamre Road. It was submitted that the evidence before the court below was confined to the works, time and resources that would be required to reinstate the Land only and, as a consequence, the primary judge did not make any findings with respect to:

I would reject ground 10(a). I accept the Council’s submission that the appellants never sought an opportunity, at the hearing or thereafter, to adduce evidence as to any of those matters. The primary judge can hardly be criticised for failing to address evidence that the appellants did not lead.

Grounds 10(b) and 10(c) challenge the primary judge’s findings about the fill placed on 931 Mamre Road which created the earthen mound and, in particular, the findings about who was responsible for those works. I have concluded that the appellants are entitled to succeed on these grounds and that, therefore, the orders made by the primary judge must be amended to exclude responsibility to remediate the earthen mound on 931 Mamre Road.

The primary judge found that the works undertaken on 931 Mamre Road were carried out by Dincel without development consent: at [218]. The appellants submitted that the Council never put to Mr Dincel, or any of the appellants’ other witnesses, that Dincel was responsible for constructing the “earthen mound” at the rear of the property, in breach of the rule in Browne v Dunn (1893) 6 R 67. It was submitted that the primary judge erred in making adverse findings against Dincel when Mr Dincel was not first given the opportunity to deal with them, and in circumstances where the evidence was insufficient for the Council to discharge its burden of proof.

I have concluded that grounds 10(b) and 10(c) should be allowed. The problem with the findings of the primary judge, and the submissions of the Council below and in this Court, is that they were based on two sketch plans for which it is reasonable to infer Dincel was responsible showing earthworks on 931 Mamre Road. The first sketch plan (Sketch 1) is set out below:

Mr Dincel was cross-examined about Sketch 1:

That evidence was clarified by the cross-examiner shortly thereafter:

Contrary to the Council’s submission, and the finding of the primary judge, Mr Dincel’s evidence did not contain an admission about Dincel’s responsibility for creating the earthen mound. The earthen mound is depicted in the following photograph that was in evidence:

The above photograph is taken from the earthen mound looking along the boundary of 931 Mamre Road. The sloping wall structure depicted shows the batters. In the passage of Mr Dincel’s cross-examination set out above, Mr Dincel was accepting Dincel’s responsibility for the batters but denying that Dincel was responsible for the creation of the earthen mound on 931 Mamre Road. I have concluded that the primary judge misunderstood this evidence as containing admissions about the earthen mound when in fact it contained a denial of responsibility.

The photograph above is taken looking towards what are identified in Sketch 1 as the “garden beds”. I accept, as Dincel submitted, that the better view of the evidence is that whilst the earthen mound may have been connected in a physical sense to the batters, it was not something that encroached over the common boundary into 931 Mamre Road. The photograph below is also taken from the earthen mound but looking in the opposite direction. This photograph supports Dincel’s submission that the earthen mound was a separate structure created by dumping fill on to 931 Mamre Road and which was not part of the appellants’ commercial operation.

Whilst it is true that the fill was deposited on 931 Mamre Road by the same contractors who deposited the fill on the Land, it was not established on the pleadings or by evidence that Dincel, rather than the proprietors of 931 Mamre Road, was responsible for the deposit of the fill on 931 Mamre Road. The cross-examination of Mr Dincel did not address the earthen mound which is depicted in the bottom right hand corner of the sketch reproduced above. Nor did any answer that he gave address that topic. The primary judge’s findings to the contrary were made in error.

A great deal of the cross-examination at the trial was about a part of a different sketch (Sketch 2) which is depicted below. Whilst Sketch 2 may have been prepared within Dincel at the same time as Sketch 1, Sketch 2 concentrates upon a different part of the Land. The cross-examination about the hatched section of Sketch 2 was irrelevant to the question of responsibility for creating the earthen mound. The longitudinal section at the bottom of Sketch 2 relates to material dumped on the boundary of 919 Mamre Road and is not relevant to the “earthen mound” on 931 Mamre Road.

The evidence before the primary judge included Mr Dincel’s email of 29 November 2018, in which he set out what was described by the appellants as a contemporaneous description of the works for which he took responsibility. The works referred to are the batters shown in the photograph above:

That description, contrary to the Council’s submission, was not of the earthen mound on 931 Mamre Road but rather described the batters.

The evidence before the primary judge also included an email exchange between Mr Reece and Mr Dincel. Mr Reece stated the following in his email of 22 March 2019:

Mr Dincel’s response in an email dated 27 March 2019 was that “[w]e have nothing to do with any activities in 931 Mamre Road.”

There was no other evidence from which the conclusion could be drawn that Dincel was responsible for the creation of the earthen mound on 931 Mamre Road.

I have concluded that the evidence, considered as a whole, did not support the italicised finding of fact in [33] of the judgement that “…. During November 2018, Dincel obtained consent from the owners of 931 Mamre Road to deposit fill and construct an earthen mound on that property for the purposes of stabilising the batter” (emphasis added).

The only part of [33] that was controversial at the trial was: “and construct an earthen mound”. The primary judge’s erroneous finding was repeated in the dispositive reasoning on this topic:

I am not satisfied that the Council proved that Dincel was responsible for constructing the earthen mound on 931 Mamre Road. His Honour’s finding that it was should be set aside. An equally available conclusion on the evidence at the trial was that the subcontractor had two arrangements, one with Dincel and one with the neighbour, the Muscats. The contactor used Dincel’s land to access 931 Mamre Road. The contractor created the batters and then at the same time, on the instructions of the neighbours, created an earthen mound adjacent to the batters. Dincel’s submission is supported by the fact that the earthen mound was on someone else's land. The mound was not shown to be for Dincel’s benefit. There was no apparent benefit to Dincel from the creation of the mound. I accept Dincel’s submission that any suggested benefit to Dincel from the creation of the earthen mound (such as it supported the batters) would amount to speculation outside of the evidence.

Grounds 10(b) and (c) should be allowed.

The appellants submitted that the primary judge was required to consider the financial and environmental consequences associated with the removal of fill from 931 Mamre Road, including the adverse impact on Ms Muscat’s land arising from the loss of flooding benefits which arose from Dincel’s works, prior to making any order relating to the reinstatement of the Land. It was said that the submission made by the appellants was not considered by the primary judge.

As I would uphold ground 10 it is strictly unnecessary to address ground 11. However, on the contingent assumption that I am wrong about ground 10, and it has been proven that Dincel is responsible for the “earthen mound” on 931 Mamre Road, I would reject ground 11.

On that contingent assumption, the appellants did not adduce evidence as to the additional costs of removing the unlawful fill from 931 Mamre Road and should have done so. In the absence of any attempt meaningfully to raise the issue, the appellants cannot complain that the primary judge failed to consider the time and cost of reinstating 931 Mamre Road.

On 15 January 2021 the primary judge ordered the appellants to pay the Council’s costs of the proceedings in the court below unless an application was made for an alternative costs order. The appellants made such an application by way of motion which sought an alternative costs order directed to Dincel only. On 15 March 2021, his Honour dismissed the motion and confirmed the previous order that both appellants should pay the Council’s costs of the proceedings in the court below: Penrith City Council v Dincel Construction System Pty Ltd (No 5) [2021] NSWLEC 22. His Honour said:

The appellants submitted that the primary judge disregarded the appellants’ separate legal personality and erred in principle by misunderstanding the nature of the relevant “event” for the purposes of r 42.1 of the UCPR. It was submitted that the relevant “event” was the Council’s abandonment of its claims against Gaonor and the fact that Dincel and Gaonor were related companies, the controlling mind of each of whom was Mr Dincel, is no reason to depart from the general rule in r 42.1.

The problem with Gaonor’s submission that the “event” was the abandonment of claims against Gaonor is that Gaonor as the owner of the Land was plainly a necessary party to the proceedings and it took an active part in the proceedings opposing the relief sought by the Council. The relevant “event” was the relief sought against Dincel which affected Gaonor’s legal interests as the owner of the Land. Gaoner took an active part in resisting the grant of that relief. That relief, once granted, affected the value of Gaonor’s interest in the Land in that the storage facility created on the land had to be removed and the Land returned to its pre-existing state.

The appellants were related companies with common directing minds; one was the owner of the Land, the other was the occupier of the Land. The conclusion is inescapable that whatever the occupier did on the Land and in the defence of the proceedings was done with the knowledge and concurrence of the owner of the Land. Gaonor was correctly held liable for the costs of the trial.

I would reject ground 12.

There was an issue on the appeal about whether, should this Court find error, and determine that a remitter was necessary, the matter should be remitted to a judge other than the primary judge. As no remitter is necessary there is no occasion to determine that issue.

At the conclusion of the appeal hearing, the Court granted the parties leave to file short written submissions concerning relief if grounds 10(b) or 10(c) were upheld.

The Council submitted that from an engineering perspective the earthen platform on 931 Mamre Road can remain in situ whilst the unlawful works carried out on behalf of Dincel are removed and thereafter. On that basis, the Council proposed that, in the event that ground 10(c) was upheld, the reference to the earthen mound should be excised from order 4 and order 8(b) should be amended to read as follows:

The appellants agreed that orders in those terms would be appropriate.

As to the costs of the appeal, s 98 of the Civil Procedure Act 2005 (NSW) confers on the Court a wide discretion with respect to costs. Under r 42.1 of the UCPR the general rule is that the Court is to order that costs follow the event. The “event” may be characterised in more than one way. Generally the “event” refers to the result of the claim or counterclaim, as the case may be, and may be understood as referring to the practical result of a particular claim: Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15] per Ward, Emmett and Gleeson JJA. Where there has been a mixed outcome in the proceedings, and it is appropriate to entertain the process of apportioning costs as between different issues in the proceedings, in general such an exercise will be carried out on a relatively broad brush basis, and largely as a matter of impression and evaluation by the Court: Doppstadt at [19]; James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [36]; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 at 22.

The relevant principles for the determination of costs on an issue-by-issue basis were stated in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 at [38] per Beazley, Ipp and Basten JJA:

In this case the appellants have succeeded in relation to the orders relating to the earthen mound on 931 Mamre Road but failed on all other issues. This is a case where the issues are separable. Applying the appropriate broad brush approach based on matters of impression and evaluation, the appellants should be assessed as having had 50 per cent success on the appeal. The Council should be assessed to have been 50 per cent successful on the appeal. Considering the relevant “event” overall and taking into account the success of both parties on the separable issues in this case, I would not make any orders as to costs, with the intention that each party pay their own costs of the appeal.

For the foregoing reasons I propose the following orders:

By reason of the Registrar’s order dated 29 March 2021, order 8(b) made by the primary judge (which has been varied by this Court) and order 8(c) (which is unchanged) is stayed for 6 months from today’s date.

BRERETON JA: I agree with Payne JA.