Anderson v Lake Macquarie City Council

Judgment 1Lake Macquarie City Council (the Council) issued an order under s 124 of the Local Government Act 1993 (LG Act) to Mr Anderson that he demolish and remove a concrete seawall constructed on Crown land adjoining Mr Anderson's land at 21 Marks Parade, Marks Point. Mr Anderson appealed under s 180(1) of the LG Act against the order to the Court. On the appeal, the Court (Commissioner Morris) upheld the appeal and revoked the order. 2The Commissioner held that the Court did not have the power to confirm the order by exercising any of the powers in s 180(4) of the LG Act because a precondition to the giving of the order under s 126 of the LG Act had not been satisfied. The Commissioner held that the order was in respect of Crown land (being Lots 7335 and 7336 in Deposited Plan 1156260) that was a reserve within the meaning of Pt 5 of the Crown Lands Act 1989 (the land had been reserved from sale for the public purpose of public recreation). Section 126 of the LG Act provides that an order under s 124 may not be given "in respect of", amongst other land, "a reserve within the meaning of Part 5 of the Crown Lands Act 1989", without the prior written consent of the Minister responsible for administering the LG Act (s 126(1)). That Minister must not give his or her consent in respect of such a reserve until after the Minister has consulted the Minister administering the Crown Lands Act (s 126(2)). 3The Commissioner found that the Minister had not given written consent prior to the Council giving the order under s 124 in respect of the Crown reserve in this case. The Commissioner found, therefore, that the precondition in s 126 of the LG Act had not been met. The Commissioner found that, as the Court was exercising the functions and discretions of the Council (s 39(2) of the Land and Environment Court Act 1979), the Minister's consent needed to have been obtained but had not been. Accordingly, the Commissioner held that she could not confirm the order made and the order must be revoked ([38]). 4Mr Anderson now seeks, by notice of motion dated 26 March 2013, an order that the Council pay his costs of the appeal. 5The appeal under s 180 of the LG Act is within Class 2 of the Court's jurisdiction. Rule 3.7(2) of the Land and Environment Court Rules 2007 applies to all proceedings in Class 2 of the Court's jurisdiction. Rule 3.7(2) provides that: The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances. 6Rule 3.7(3) identifies, by way of example, circumstances in which the Court might consider the making of a costs order to be fair and reasonable. Mr Anderson relied on the circumstances in (c) and (f): (c) that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings, ... (f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where: (i)the claim or defence (as appropriate) did not have reasonable prospects of success, or (ii)to commence or continue the claim, or to maintain the defence, was otherwise unreasonable. Mr Anderson submitted that the Council acted unreasonably in the circumstances leading up to the appeal, within the meaning of r 3.7(3)(c), by giving an order under s 124 in respect of a reserve within the meaning of Pt 5 of the Crown Lands Act without complying with the condition precedent in s 126 of the LG Act of obtaining the prior written consent of the Minister. 7Mr Anderson points out that the Crown land was a foreshore reserve, which had been dedicated for public recreation, with a width of between four to five metres between Mr Anderson's land and Lake Macquarie. The order required Mr Anderson to demolish and remove the concrete seawall on the reserve and restore the land on which the seawall was constructed in accordance with a plan attached to the order. This restoration would require excavation, the placing of a sloped rock rubble revetment, and course sand/pebble beach fill. Mr Anderson submitted that these works would have required a significant part of the reserve to be excavated, thus reducing the land size of the reserve and either removing or diminishing the capacity for that part of the reserve to be used for the purpose for which the land had been dedicated. 8Mr Anderson submitted that for the Council to have purported to require such works to be carried out without attempting first to obtain the Minister's consent under s 126 of the LG Act was unreasonable conduct for the purposes of r 3.7(3)(c). 9Mr Anderson submitted the Council, within the meaning of r 3.7(3)(f), maintained a defence to the appeal where the defence did not have reasonable prospects of success and where to maintain the defence was unreasonable. The failure of the Council to have obtained the written consent of the Minister under s 126 of the LG Act meant that the Council's defence to the appeal against the order was hopeless and doomed to fail. 10Mr Anderson submitted that the Council could not avoid the effect of the limitation in s 126 (which applies to giving orders in respect of, amongst other Crown land, a reserve within the meaning of Pt 5 of the Crown Lands Act) by reference to the heading to the section (which refers to "Giving orders to public authorities"). Mr Anderson submitted this was not a reasonably arguable position for the Council to have taken having regard to s 35(2)(a) of the Interpretation Act 1987 (which provides that a heading to a provision of an Act is not part of the Act). 11Mr Anderson accepted that it would be permissible to have regard to the heading as extrinsic material if the provision was ambiguous or obscure (s 34(1)(b)(i) of the Interpretation Act), but s 126 is not ambiguous or obscure. The words "in respect of" are a broad import: see Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323; (2007) 149 LGERA 360 at 399 [180]. They merely require some connection or relation between the two subject matters to which the words refer, namely, in s 126, between the order and the specified types of Crown land. In this case, the order required things to be done on the Crown reserve. This provides a sufficient connection or relation. Hence, s 126 applied to the order in this case. 12Mr Anderson submitted that, in addition to these circumstances within r 3.7(3)(c) and (f), there are other circumstances which make it fair and reasonable to order costs. Mr Anderson gave prior notification to the Council in his statement of facts and contentions dated 24 November 2012 of his contention that the order was not lawfully made. The particulars stated that the Council had failed to comply with the precondition in s 126 of the LG Act prior to the issue of the order. 13Mr Anderson submitted that the nature of the proceeding was an appeal against a statutory order that imposed a significant burden on Mr Anderson and compliance with the order would involve significant expense. This is a relevant factor to take into account: Thaina Town (on Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 71 NSWLR 230 at [73]. The appeal against a statutory order is of a different nature to an appeal with respect to a development application where the applicant is seeking some form of privilege. 14Mr Anderson submitted that it is fair and reasonable to order costs in favour of a citizen appealing against an order under s 124 of the LG Act where: the Council did not have the statutory power to issue the order by reason of a failure to satisfy a condition precedent to the exercise of the power; the citizen told the Council prior to the hearing of the appeal that the Council did not have the power to issue the order and why; the position of the citizen as to lack of power on the part of the Council to issue the order was plainly correct; and the Council nevertheless decided to defend the appeal and press the order as if the order were valid. 15Mr Anderson, therefore, submitted that the Council should be ordered to pay his costs of the whole of the proceedings or, in the alternative, on or after 24 November 2012 when Mr Anderson filed his statement of facts and contentions. 16The Council submitted that the Court should make no order as to costs. First, the issue of whether there had been non-compliance with s 126 of the LG Act by failing to obtain the prior written consent of the Minister to the Council giving an order under s 124 of the LG Act was but one of the issues that had been raised by Mr Anderson and that was contested at the hearing of the appeal. Mr Anderson raised other points challenging the validity of the order as well as merit issues concerning the terms of the order and whether it should be made in the exercise of the Court's discretion. Mr Anderson did not isolate the s 126 validity point and ask that it be separately determined. In fact, he argued several validity points, all but one of which he lost, as part of the hearing of all matters in issue, including the merits of making the order. Most of the two days of the hearing was devoted to Mr Anderson's crossexamination of the Council's expert and submissions as to why, on the merits, Mr Anderson should not be visited with an order. The fact that the s 126 validity point was determined as part of the merit dispute supports the presumption in r 3.7(2) of no order as to costs, not its displacement. 17Secondly, the Council submitted it is relevant to take into consideration the fact that Mr Anderson was unsuccessful on every other issue which he contested. 18Thirdly, the Council submitted that the nature of the appeal, having regard to the scope and purpose of the legislative scheme within which the appeal is found, is a neutral consideration. Council pointed to the requirement in s 132 of the LG Act for notice to be given of a proposed order under s 124 (in response to which in this case Mr Anderson made no representation that an order would be invalid for want of Ministerial consent under s 126); the power under s 153 of the LG Act to revoke an order at any time (although Mr Anderson never sought for the Council to exercise the power of revocation on the ground on which Mr Anderson succeeded before the Commissioner); and the fact that the Court has a wide discretion under s 180(4) of the LG Act to revoke, modify, substitute, etc the order as the Court thinks fit. 19Fourthly, the s 126 validity point on which Mr Anderson succeeded was not so obvious that it was unreasonable for the Council to defend the appeal so as to maintain the order made by the Council. The Council submitted there was a real question as to whether s 126 did apply to the order given by the Council under s 124 of the LG Act. The Council put this argument as to construction in two ways. First, the power to give an order under item 28 of the table to s 124 is to do the things specified in column 1, including repairing damage to a "public place". Section 126, on the other hand, limits the giving of an order under s 124, without the prior written consent of the Minister, in respect of, amongst other types of Crown land, "a reserve within the meaning of Part 5 of the Crown Lands Act 1989." 20The Council submitted that the "public place" in respect of which the order was given to repair damage to it, was not the Crown reserve as such, but rather the foreshore of Lake Macquarie, which was outside of the Crown reserve. Hence, the Council submitted, there was a real question as to whether the order was given "in respect of" the Crown reserve or the foreshore of the lake, so as to enliven the requirement in s 126 to obtain prior Ministerial consent to the giving of the order. 21The second way the Council put its argument was that there is an ambiguity in s 126(1) of the LG Act as to whether an order is "in respect of" that land because it requires work to be done on it or, on the other hand, is only in respect of the "public place", which is the subject of damage in column 1 of item 28 of the table to s 124. This ambiguity as to the meaning of s 126 allows reference to extrinsic material, which can include the heading to s 126: see s 34(1)(b) of the Interpretation Act. 22Although the heading does not directly resolve that ambiguity, the Council submitted it certainly confines the scope of an order to a public authority. The ambiguity is resolved, the Council submitted, to this extent: the words "in respect of" are deliberately general, and may extend beyond the "public place" referred to in column 1, because the limiting factor in the order is that its recipient must be a public authority. That enables a broad scope to be given to the identification of the land to which an order falling within s 126 relates because it is otherwise confined to a public authority. 23Alternatively, the Council submitted reference could be made to the heading as extrinsic material because the ordinary meaning conveyed by the text of the provision leads to a result which is manifestly absurd or unreasonable: see s 34(1)(b)(ii) of the Interpretation Act. The Council submitted that it would be unreasonable in practice to require a Council to obtain Ministerial consent every time it requires, by an order under s 124, a private person to do something on a Crown reserve. There is already a check in that the owner or manager of the Crown reserve would have to consent to the person doing the work on the Crown reserve, otherwise the person would be trespassing on the Crown reserve. A further check of Ministerial consent to the making of the order is not required. Only if the order is given to the public authority who is the owner or manager of the Crown reserve would this check be insufficient. In this circumstance, s 126 is needed so as to require Ministerial consent to the giving of an order to such a public authority. 24Hence, the Council submitted that its argument that s 126 did not apply to the order in this case, because the order in respect of the public place was given to Mr Anderson and not a public authority, was not unreasonable. 25Mr Anderson submitted in reply that the first way the Council submitted that s 126 may not have applied to the order in this case had not been argued before the Commissioner and that the second way was hopeless or doomed to failure as there was no ambiguity in s 126 enabling consideration of the heading to s 126. 26Mr Anderson also submitted in reply that, although he had made no application to the Court for the s 126 point to be heard and determined separately from all other issues on the appeal, this simply meant that he could not rely on the circumstance in r 3.7(3)(a) in support of his argument that there be an order for costs; it did not disentitle him from relying on the circumstances in r 3.7(3)(c) and (f). 27I do not consider that the making of a costs order as to the costs of this appeal is fair and reasonable in the circumstances, essentially for the reasons given by the Council in its submissions. 28First, the issue concerning non-compliance with s 126 of the LG Act was only one of the issues raised and contested on the appeal. The Council put in issue, by its statement of facts and contentions, questions of law and fact relating to the requirements of item 28 of the table to s 124. These included that the concrete seawall constructed on the Crown reserve was causing damage to a public place because of its effect on the natural ecosystem and processes of the foreshore of Lake Macquarie, and that Mr Anderson was a person to whom an order could be given because he was entitled to the benefit of the structure as the owner of the adjoining allotment. 29Mr Anderson in his statement of facts and contentions raised additional facts and contentions to those raised by the Council and rebutted the Council's contentions. Mr Anderson contended: