Brickworks Ltd v Shire of Warringah

Brickworks Ltd v Shire of Warringah - [1963] HCA 18 - HCA 1963 case summary — Zoe

I have had the advantage of reading the judgment to be delivered by my brother Owen. He has set out the facts. The narration of them leads, I think, inevitably to the conclusion that his Honour reaches. But I can understand the learned judge who tried the suit having taken the view that he did because of concessions that were made by the appellant, the defendant at the hearing. The emphasis that was thereafter placed by the parties on certain questions of law obscured some of the facts. But the essential question is one of fact. Did the respondent, the Council, consent to the extraction of clay and shale by the appellant Company from its land? The Company received through the post the formal notice described as "Land Use Consent No. 60/19", dated 22nd April 1960. This purported to be a notification of the Council's consent, upon conditions set out, to the extraction of clay and shale. It was signed by the President himself, instead of by or on behalf of the Shire Clerk, as the printed words which were struck out indicated would ordinarily be the case. But the evidence did not disclose that the Company had any reason to suppose that the document was not authorized by the Council. It was regular on the face of it. In the suit the Council disowned it. But no evidence was called to explain how, if it was not genuine, the Deputy Town Planner, whose initials are on it, had come to compose it, or how the President came to sign it, or how it came to be sent to the Company. And that is by no means all. Everything that the Council said and did, from April 1960 until after the institution of the suit, was consistent only with the statements in the document being correct. The Council knew that mining for clay was being carried on by the Company. It never suggested that it was without its consent. It said the very opposite. On 16th May 1960 it resolved that the Cumberland County Council should be told that it, the respondent Council, objected to a proposal that the Company be allowed to mine on Portion 5. And why? Because it said the Company had enough clay on Portion 4, which it was then working. Obviously the Council must have then assumed that the Company was doing so lawfully, and it must have known that could only be because it had the Council's consent. Later, some disputes arose between the Council and the Company about the way the Company was carrying on its operations on the land. On 6th March 1961 the Council resolved to notify the Company that, as it was not complying with the terms of the consent that had been given on 22nd April 1960, the Council regarded the consent as null and void. The Company was told of this resolution by a letter dated 8th March 1961. This document says that the Council regarded the consent as "null and void with effect from the date hereof", which may have meant either the date of the resolution (6th March) or the date of the letter (8th March). The Company promptly denied that it was not complying with the conditions. It asked for particulars of the breaches of them it was alleged to have committed. These were not furnished at the time, and the Company went on working the clay and shale. The Council then commenced this suit.

[6]

At the hearing of the suit the Company put its defence in this way: Accepting the Council's statement that there had in fact been no formal consent before the issue of the document of 22nd April 1960 and that the President had not had authority to sign it, it argued that, notwithstanding this, the document was regular on its face and that, in any event, it had been ratified. Myers J., not unnaturally, accepted the concession involved in this proposition, but rejected the arguments by which it was sought to displace it, and found against the Company. It must surely have been a surprise, to say the least of it, to the Council to find that, in proceedings it had commenced on the basis that it had given a consent, it had succeeded because it had not. Three things had led to this result. First, the Company's formal written application for consent made in April 1960 was said in evidence not to have been considered by the Council. The evidence on this point is not very satisfactory. But the Shire Clerk said that the Company's written application had never come before the Council; and this was not contradicted. He did not explain, and was not asked by either party to explain, why it was that the application did not go before the Council, nor what had in fact happened to it, nor how it came about that in later discussions the Council proceeded always on the basis of a consent on the terms of the document of 22nd April having been given. Secondly, there is no resolution of consent recorded in the Council's minutes. This led counsel for the Company to concede at the hearing that the Council had not given its consent. The register of consents, that under the Ordinance should have been kept, was not tendered. We do not know what it showed. The Planning Scheme Ordinance, cl. 41 (3), required that the Council should decide either to grant its consent to the application or to refuse it. If for forty days it did neither, it was deemed to have refused, and the applicant then had a right of appeal. There is no minute of consent. But neither, it seems, is there any minute of refusal. Putting aside then the notification signed by the President the only inferences that could be drawn from the absence of any record of a resolution in the minutes in April 1960 are either that the minutes are not complete, or that, as the Shire Clerk said, the application had not then been considered by the Council. It cannot be inferred from the absence of a minute that consent had then or at any time been refused. I do not understand how, when afterwards the Council said implicitly that the mining on Portion 4 was being done with its consent, and still later said expressly that it had consented, it could expect to obtain relief in equity on the basis that it had never consented at any time. If it had not been that counsel for both parties argued the case on the basis that there had been no consent, the inescapable conclusion must have been that what the Company did was done with consent. Whether or not a person consented to something is a question of fact. It may be proved that he did by proving an express consent or by showing conduct evidencing consent: Booton v. Clayton [1] . But I do not think a person can, by words and conduct, state that he has consented and is consenting, and then deny that he meant what he said and did. The position of a collective body is not radically different from that of an individual. The consent of a body corporate, such as the Council, to any course of action must be given at a duly convened meeting. And ordinarily it is given by a resolution that expressly, or by necessary implication, imports consent. It is, no doubt, possible to imagine that the President and all the Councillors and the Shire Clerk and the Planning Officer were somehow mistaken as to what the Council had decided, and that their later actions were the consequence of their believing that they had in fact earlier given their consent. But that, it seems to me, could only be so if the Councillors and the officers of the Council had all been inattentive or careless. There are no grounds for thinking that was so. The giving or refusing of a consent, as required by the Ordinance, was an important discretion entrusted to the Council as the "responsible authority". It is not to be assumed that the Council and its officers neglected their duties or discharged them in a perfunctory manner. The mining operations of the Company in fact engaged the close attention of the Council on several occasions.

[8]

The case, as I see it, does not depend upon an estoppel, but on actual admissions of a fact. The Council said that it had consented. Until it spoke by the mouth of its lawyers it never said otherwise. But if, notwithstanding this, it can somehow be said that it did not in fact consent, then an estoppel seems to me to arise. The Council did not at any time before it commenced this suit repudiate what its President had told the Company. In effect it repeated it. And the Company relied upon these purported consents. Does not this found an estoppel? It was argued that it could not do so because estoppel by representation cannot prevent the performance of a statutory duty or the exercise of a statutory discretion. There is no doubt about the principle; but I doubt its application to this case. The decision of the Court of Appeal in Southend-on-Sea Corporation v. Hodgson (Wickford) Ltd. [1] was relied on. The facts of that case do bear a superficial resemblance to those of this case. But there is a distinction. There the Corporation had, by its engineer, said that its permission for the use of land as a builder's yard was not in fact and law required. It was mistaken in this view; and it was held that what the engineer had said could not create an estoppel preventing the Corporation from exercising its statutory discretion to forbid the land being used as a builder's yard. That is to say, the Corporation had in effect said to the respondent company there, "you do not need our permission; we have no discretion to prevent your action". In the present case, on the other hand, the Council said in effect, "you do need our permission; we have a discretion which we have exercised in your favour". It seems to me that, in the circumstances of this case, the Council was estopped from denying that it had exercised its discretion in the manner it had said it had done. The case is not, as I see it, one in which a consent once given could be withdrawn. That could only, I think, be so if the consent were expressly given upon a condition that it might be withdrawn in specified events. And, moreover, it is not now said that consent was given and later withdrawn. The allegation now is that it was never given. The case of The New South Wales Trotting Club v. Council of the Municipality of the Glebe [1] is entirely different from the present case.

[11]

I go now to another aspect. The suit was commenced in the equity jurisdiction of the Supreme Court. The relief sought was an injunction. It was argued that, because the Ordinance provides for a daily penalty, and proceedings for a penalty had not been taken, the remedy of an injunction was not available. I do not think it necessary in this case to make any pronouncement on that question, which has arisen also in another case before this Court not yet decided. I shall simply assume for present purposes that, in accordance with the practice in New South Wales, the Supreme Court can restrain by injunction breaches of town planning schemes, building regulations and similar provisions, at the instance of local authorities responsible for their enforcement. The following cases are among many examples of the exercise of this jurisdiction in New South Wales: Council of the Shire of Hornsby v. Danglade [1] ; Ku-ring-gai Municipal Council v. Edwards [2] ; Cumberland County Council v. Corben [3] . But assuming that an injunction might be granted, the question is whether, in the circumstances of this case, an injunction should have been granted. The Council's contention is that it comes as plaintiff, asserting the same right as the Attorney-General might have asserted on its relation: Local Government Act, 1919 N.S.W., s. 597. It comes, it says, pursuant to a statutory duty to protect the interest of the public. But the Court has a discretion in the case of a suit brought by the Attorney-General at the instance of a Council, just as it has in other cases when an injunction is asked for. One consideration is whether the Council had given the defendant any ground for supposing that it had given its consent to what he was doing. The remarks of Farwell J. in Attorney-General v. Wimbledon House Estate Co. Ltd [4] are directly in point. Moreover, it somewhat begs the question in this case to say simply that it is the Council's duty to see that the Planning Scheme is enforced and carried into effect. The Council's duty under the Scheme was to consider the application for consent on its merits, to give or refuse its consent, and to notify the applicant of its decision. It does not say that it did this. Its conduct could obviously be taken as an acquiescence in what the Company was doing. A tacit acquiescence does not suffice where a consent in writing is required: Kerr v. Corporation of Preston [5] . But that is not the case here. The doctrine of equitable estoppel by acquiescence - as defined by Fry J. in Willmott v. Barber [6] - depends, of course, upon the party said to have acquiesced being aware of his right. And it was argued that, when it seemingly acquiesced, the Council did not know that it had a right to restrain the Company. It was said that it only acquiesced and said it consented because it mistakenly thought it had earlier consented; and that, its lawyers having found that it had not, its acquiescence was at an end and could not be relied upon to justify any further activity by the Company. As I have said, I find some difficulty in the notion of an equivocal consent of that sort. But, even if there was no equitable estoppel by acquiescence in the strict sense, the Council's conduct was misleading. Its actions and inactions, its statements and its silences, together constituted a representation that at some stage or other it had consented to the Company's application. They did not mean that it had refused it. In my view, the case is not one for an injunction.

[48]

In fact the appellant had not worked outside Portion 4 nor was any part of the work done on Portion 4 done within an area required by the Department of Civil Aviation. The appellant had not lodged a bond with the Department of Mines, although ready and willing to do so, for the very good reason that that Department, when approached, had stated that it did not require any bond to be lodged. On 28th April 1961 the statement of claim was issued. In it the Council alleged that it had at no time given its consent to the use of Portion 4 for the extraction of clay and shale. It alleged also that the document of 22nd April 1960 sent to the appellant under the signature of its President was unauthorized and that, in any event, the appellant had committed breaches of Conditions (b), (c) and (g) contained in that document. This was the first occasion on which an allegation was made that the consent of the Council to the use of Portion 4 for extracting clay and shale had not been given and that the document of 22nd April 1960 signed by the President was an unauthorized document. The Council's previous conduct seems to me to be consistent only with the fact that consent had been given. On 16th May 1960 it had resolved to oppose the grant of mineral leases to the appellant or its nominee on the ground that considerable quantities of clay and shale remained to be extracted by the appellant from Portion 4 and that the required number of working faces could be obtained in Portion 4. It had gone on to suggest that further consideration might be given to the grant of the leases when the deposits on Portion 4 were worked out. In July 1960 it had required the appellant to take steps - which the latter took - to prevent clay taken from Portion 4 dropping on to Booralie Road. In September 1960 it had refused the appellant's request that it should be granted a consent to the extraction of clay and shale from Portion 5 "similar" to that already granted in respect of Portion 4 and had based its refusal on the fact that the deposits on Portion 4 had not yet been worked out. In October and November 1960 it had insisted that the appellant should bear the cost of reconditioning Booralie Road which, it claimed, had been damaged by the appellant's vehicles carting clay and shale from Portion 4. Finally, in March 1961, it had claimed that "Conditional Land Use Consent No. 60/19 dated 22nd April 1960" relating to Portion 4 was "null and void" as from 8th March 1961 because some of the conditions imposed by that consent had not been fulfilled.

[60]

I should add that no evidence was led on behalf of the Council to explain how the document of 22nd April came to be signed and sent to the appellant or how it came about that the Council had acted as it did in connexion with the applications for mineral leases in May 1960 and the later application by the appellant for a consent to work Portion 5 similar to the consent granted in respect of Portion 4. Nor was any explanation offered of its actions with regard to the use of Booralie Road by the appellant's vehicles or of the notice which it had given the appellant terminating the consent for breach of conditions contained in it. The only explanation of these matters was put forward by counsel in the course of argument when he suggested that the Council and its officers must have forgotten that consent to the use of Portion 4 by the appellant had not been given. This seems to me to be an improbable state of affairs. There was no evidence nor was it suggested in argument that the President or the officers of the Council had been improperly induced to act as they did and, but for one matter to which I shall presently refer, I would have thought that the proper conclusion was that consent had been given by the Council before the document of 22nd April was sent to the appellant and that, for some reason or another, that fact had not been recorded in the minutes. The issue of the document of 22nd April over the signature of the President gave rise to a presumption that the Council's consent had been given and that presumption was greatly strengthened by the Council's subsequent actions. The only material in rebuttal consisted of the meagre and unsatisfactory oral evidence and the fact that no record of a minute granting consent appeared in the Council's minute book. I would certainly not be prepared to hold that the Council had discharged the onus of showing that it had not, prior to 22nd April, consented to the appellant's application to extract clay and shale from Portion 4 and that the document of that date was not one which the President had authority to issue.

[61]

But, as I have already said, after the minute book had been examined the hearing before Myers J. and the arguments on the appeal to this Court proceeded upon the assumption that no consent had been given before 22nd April because of the absence of a minute relating to the application prior to that date. It does not appear that, as a result, counsel for the Council refrained from tendering any other evidence which might have been available to show that consent had not been given. Nevertheless I am reluctant to hold that what the parties treated as being the fact was not the fact. Accordingly I will assume that the document of 22nd April was signed by the President and sent to the appellant without any prior consideration by the Council of the application of 12th April. On that assumption, I reach the same conclusion that the Council at least failed to discharge the onus of proving that it had not consented to the application after 22nd April. Indeed an affirmative finding should, in my opinion, be made that after 22nd April the Council approved or adopted the President's action in issuing the document of that date and that that approval or adoption itself amounted to a consent. It was contended, however, that, under cl. 41 (4) of the Ordinance, the application of 12th April 1960 must be deemed to have been refused after the expiration of forty days from the date of its service and that after the lapse of that period the application could no longer be considered. The purpose of that sub-clause is to enable a dissatisfied applicant to exercise the right of appeal given by s. 342N (2) of the Local Government Act where a council has neglected or delayed to make a decision on the application within forty days and I think it is doubtful whether it has the effect of preventing a council from granting or refusing an application after the period mentioned has expired. But it is unnecessary to decide whether that is its effect because the decision made by the Council at its meeting on 16th May 1960 to oppose the grant of the mineral lease applications on the ground that the clay and shale deposits on Portion 4 were available to and being worked by the appellant seems to me to amount to an adoption by the Council of the document of 22nd April and to a consent to the user of Portion 4. On the assumption that there had been no earlier consent, the inference is open and should be drawn that at that meeting the Council either had before it a copy of the document of 22nd April or was aware of its terms and approved of them. Consent was therefore given within the period of forty days.

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Before

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Judgment (62 paragraphs)

Parties