Posted on March 18, 2014 by Megan Hawley

Joinder of Owners of Land to Enforcement Proceedings

Councils are often faced with the question of whether to commence proceedings against an owner of land in respect of unlawful building work carried out on that land by a person other than the owner.

A recent decision of the Court of Appeal is to the effect that the owner of any land on which unlawful works have been carried out should be joined as a party to enforcement proceedings, so that any orders which might be made in respect of the unlawful works, can be carried into effect.

In Ross v Lane Cove Council [2014] NSWCA 50 the Court of Appeal upheld an appeal against orders made in the Land & Environment Court against Mr Ross, a builder, requiring him to demolish unauthorised works, on the basis that the owner of the land had not been joined to the proceedings.

The works were constructed on land which Mr Ross may originally have owned, but which was transferred out of his ownership during the course of the enforcement proceedings. In order to implement the orders, Mr Ross would need access to the land, and it was doubtful that the owner would provide that access.

The Court of Appeal referred to the decision in Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004] HCA 59, in which the High Court held that ss123 and 124 of the Environmental Planning & Assessment Act 1979 (EPA Act) could not be relied on to have orders made against persons who were not themselves in breach of, or threatening to breach the EPA Act.

However, the Court made a distinction between making orders against a person, and making orders which bind a person. The Court clarified that whilst an order cannot be made against an owner of land who does not breach the EPA Act, an order can be made against someone else (in this case Mr Ross, as the person who carried out the unlawful work) which binds the owner (if they are joined).

The Court expressly rejected the argument that Hillpalm prevents an owner who is not in breach of the EPA Act from being  joined to enforcement proceedings, and being bound by the Court’s orders. The owner who is bound by the orders cannot prevent the orders being implemented by the defendant against whom they are made.

The Court of Appeal went on to say that there was a prima facie obligation on the Council to join the owner of the land to the proceedings, as her rights were directly affected by the proposed orders.

Helpfully, Leeming JA summarised the position for councils as follows:

‘In the ordinary course, a council seeking to enforce a planning law in respect of land ought to join the registered proprietor. If during…those proceedings there is a transfer of title, the new registered proprietor ought ordinarily be joined…’

Whilst the Court of Appeal did not determine whether the owner of the land in this case  was in contempt of the orders made against Mr Ross,  the Court of Appeal did confirm that the owner was not entitled to simply ignore the orders made against Mr Ross.

Therefore whilst the owner should be joined, if they are not, and the orders are not challenged, then there remains the possibility that the owner may be guilty of contempt if he or she procures or induces a breach of the orders. Before any contempt proceedings can be commenced, the owner would need to have been notified of the judgment and orders under the Uniform Civil Procedure Rules (rule 40.7).

However,the fact that an owner may be guilty of contempt does not absolve the council of the need to join the owner to the proceedings if the owner’s rights are affected by the orders sought. Based on this decision, councils should ordinarily join landowners to proceedings for unlawful building works carried out by other parties, and seek orders against the party carrying out the works, but which bind the owner.