Birdon Contracting Pty Ltd v Hawkesbury City Council - [2009] NSWLEC 91 - NSWLEC 2009 case summary — Zoe

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Birdon Contracting Pty Ltd v Hawkesbury City Council

[2009] NSWLEC 91

Land and Environment Court (NSW)|2009-07-01|Before: Lloyd J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2009-07-01

Before

Lloyd J

Source

Original judgment source is linked above.

Judgment (45 paragraphs)

[1]

The application of the Limitation Act 1969 16 The order requires the payment of $48,472.06 representing the shortfall of all payments made since the grant of the development consent. Mr Webster submits that the demand is barred by s 14(1) and s 15 of the Limitation Act. 17 Section 14(1) of the Limitation Act relevantly states: "(1) An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims: ... (d) a cause of action to recover money recoverable by virtue of an enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture." 18 Section 15 of the Act states: "An action on a cause of action for an account founded on a liability at law to account is not maintainable in respect of any matter if brought after the expiration of a limitation period of six years running from the date on which the matter arises."

[2]

"Action" includes any proceeding in a court: s 11. 19 As I understand Mr Webster's submission, it is that the whole of the order is barred because it demands the payment of money beyond the six years limitation period. His alternative submission is that the Council cannot recover beyond the six years limitation period. The notice of intention to issue the order was sent to Birdon Contracting on 25 June 2008, so that on the alternative basis the amount of arrears can be recovered back to 2002. It is agreed that this is a figure of $45,040.23. 20 The submission that the claim is statute barred was not further developed. Mr S N Griffiths, appearing for the council, submits only that the Limitation Act does not apply to administrative law, citing Daemar v Industrial Commission of New South Wales [No. 2] (1990) 22 NSWLR 178. A reading of that case discloses, however, that it has nothing to do with the Limitation Act. In that case the claimant sought prerogative relief against the Industrial Commission. Kirby P (Clarke and Meagher JJA concurring) held (at 186) that there is no time limit for the commencement of proceedings for relief prerogative in nature, although delay will be taken into consideration by the court when determining whether to provide relief. Kirby P noted that there is no fixed time for the commencement of such proceedings. Unlike Daemar, however, the Limitation Act would, if it applies, fix a time for the commencement of proceedings. Again, unlike Daemar, the present case is not an application for prerogative relief. 21 The real question is whether the two provisions of the Limitation Act nominated by Mr Webster apply to an order of this nature.

[42]

(f) It cannot be said that the company has profited in any way from its failure to comply with the condition 8. 60 In an appeal against an order the Court may: "(a) revoke the order, or (b) modify the order, or (c) substitute for the order any other order that the person who gave the order could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fit, or (f) make any other order with respect to the order as the Court thinks fit." (Section 121ZK(4) of the Environmental Planning and Assessment Act .) 61 I am not persuaded by the reasons advanced by the company for a favourable exercise of the Court's discretion. As stated in par [8] above, the onus was and remains at all times upon the person carrying out development to do so in accordance with the consent: s 76A(1). Birdon Contracting knew that the contribution required by condition 8 had to be adjusted annually in accordance with the CPI, yet it continued to levy its customers at the unadjusted rate. It cannot now be heard to complain that it did not know that the adjustment had to be made and that it failed to do so. The provision of annual statements to the Council did not relieve Birdon Contracting of its obligations. 62 Moreover, if the company were to be relieved of its obligation to make the full amount of contributions required by the condition, then the public interest which the condition was imposed to meet, would suffer. It is a notorious fact that heavy trucks cause considerable damage and wear to public roads - and many times more so than passenger cars. The public interest would be the loser if the company were to be relieved of full compliance with the condition. 63 If the Court were to exercise its discretion in favour of Birdon Contracting, it would not advance the purposes of the limitations legislation. A commonly cited authority which outlines the purposes of limitation legislation is the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. McHugh J said (at 552-3): "The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even 'cruel', to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period … The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible." (footnotes omitted) 64 In my opinion, in the present proceedings, the first, second and final rationales noted by McHugh J would not be advanced. As to the third rationale, it should, in my opinion have been obvious to a business such as Birdon Contracting that its contributions were required to be indexed according to the Sydney CPI, and that CPI figures were readily available for this purpose. Although Birdon Contracting contends that it has organised its affairs on the basis that the contributions would not be indexed, it chose to do so knowing that the contributions were required to be indexed, and the Court would not, in this case, be advancing the third rationale in the way that it was intended to operate. 65 The Council, however, is not entirely blameless. It was content to receive the contributions required by the condition, together with the annual statements, without complaint. It somewhat belatedly decided, many years down the track, to enforce the condition by requiring the immediate payment of the arrears. Nevertheless, the public interest, together with the fact that Birdon Contracting knew what its obligation was under condition 8 yet chose not to observe the condition, persuade me that the appeal should be dismissed and the order should be confirmed.

Parties

Applicant/Plaintiff:

Birdon Contracting Pty Ltd

Respondent/Defendant:

Hawkesbury City Council

Legislation Cited (1)

Petroleum Act 1923(Qld)

Cases Cited (20)

CITATION : Birdon Contracting Pty Ltd v Hawkesbury City Council [2009] NSWLEC 91

Aylott v West Ham Corporation [1927] 1 Ch 30 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Central Electricity Board v Halifax Corp [1963] AC 785 Ceric v C E Heath Underwriting & Insurance (Australia) Pty Ltd (1993) 91 NTR 26 at 32 Chan Yee Kin v Minister for Immigration, Local Government and Ethnic Affairs [1989] FCA 511 Daemar v Industrial Commission of New South Wales [No. 2] (1990) 22 NSWLR 178 Davis v Hueber (1923) 31 CLR 583 De Rossi v Walker (1902) 2 SR(NSW) 249 Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 Dobinson v Lake Macquarie City Council (1994) 82 LGERA 16 CASES CITED: Frost v The Speaker of the Legislative Assembly of New South Wales [2000] NSWIRComm 70; (2000) 97 IR 461 J & J O'Brien Pty Ltd v South Sydney City Council [2002] NSWCA 259; (2002) 121 LGERA 223 King v Rossett (1827) 2 Y & J 33 [148 ER 820] North Eastern Railway Company v Martin (1848) 2 Ph 758 [41 ER 1136] Public Trustee v Schultz [1973] 1 NSWLR 564 R v Chong: Ex Parte Chong [1999] QCA 314; [2001] 2 Qd R 301 Rapid Metal Developments (Australia) Pty Ltd v Rosato [1971] Qd R 82 Re GDK Financial Solutions Pty Ltd [2006] FCA 1415; (2006) 236 ALR 699 Registrar-General v Cleaver (1996) 41 NSWLR 713 South Eastern Sydney Area Health Service v Gadiry [2002] NSWCA 161; (2002) 54 NSWLR 495 State Government Insurance Commission v Teal (1990) 2 WAR 105 Sullivan v Oil Company of Australia Ltd [2001] QCA 252; [2002] 2 Qd R 94

11 Mr Webster submits that there was no failure to comply with the development consent because Birdon Contracting was paying the requested amounts. I do not accept the submission for the reasons stated in par [8] above. Birdon Contracting was not paying the requested amounts. 12 Mr Webster further submits that item 15 of the Table in s 121B(1) cannot be used to rectify a past breach. The submission was not developed, but I assume that reliance is placed on the present tense in the words "the development consent is not being complied with". I do not accept the submission. A development consent is not being complied with if the development is being carried out in breach of a condition of the consent, as in the present case. J & J O'Brien Pty Ltd v South Sydney City Council [2002] NSWCA 259; (2002) 121 LGERA 223 is an example of a case where a person was required to rectify a past breach pursuant to item 15 of the Table in s 121B(1). 13 Mr Webster next submits that s 121B does not give the Council the power to order the payment of money as a debt. As I understand the submission, the kind of orders that may be made under s 121B are limited to the doing, or refraining from doing, of work or other activities. The submission is developed by reference to the fact that if a person fails to comply with an order, the person who gave the order may do what is necessary to give effect to the order, including the carrying out of any work required by the order: s 121ZJ(1). Mr Webster submits that this is clearly not appropriate for an order requiring the payment of money. Moreover, the order issued by the Council in the present case states: "If you do not comply with this order, Council may give effect to the order and recover the costs of doing so from you". It is submitted that this kind of remedy shows that an order requiring the payment of money is not within the ambit of s 121B. 14 Again, I am unable to accept the submission. The remedies described in s 121ZJ and repeated in the order are discretionary. They are not the only remedies available if there is a failure to comply with an order. The person giving an order may either prosecute the person who fails to comply with an order under s 125 of the Act, or may bring civil enforcement proceedings under s 124 of the Act, which remedies would appear to be available if the order is not set aside by the Court. For example, the Council could seek an injunction restraining Birdon Contracting from carrying out the development unless or until it complies with all the conditions of the development consent - and, in particular, condition 8. 15 The order in the present case asserts that there is a non-compliance with the development consent, namely a non-compliance with condition 8 of the consent, and requires compliance therewith. This kind of order is clearly authorised by item 15 of the Table in s 121B(1). The fact that the condition requires the payment of money does not mean that the Council cannot require the condition to be complied with.

[1989] FCA 511

[1999] QCA 314

[2001] QCA 252

(1996) 186 CLR 541

(1990) 22 NSWLR 178

(1923) 31 CLR 583

(1984) 154 CLR 234

(1994) 82 LGERA 16

(2000) 97 IR 461

(2002) 121 LGERA 223

(2006) 236 ALR 699

(1996) 41 NSWLR 713