Grant v Brewarrina Shire Council

JUDGMENT:

• 5 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40214 of 2001

11 November 2002 Walter Alfred Grant Applicant v Brewarrina Shire Council Respondent EXTEMPORE JUDGMENT

HIS HONOUR: 1 The applicant claims the following relief. Firstly, a declaration that the notices of intention to give an order served on the applicant by the respondent on or about 25 August 1999 in respect of lot 22 in deposited plan 22732 Culgoa Street, Brewarrina in the State of New South Wales are invalid and null and void. 2 Secondly, a declaration that the notices of orders served by the respondent on or about 17 September 1999 in respect of lot 22 in deposited plan 22732 Culgoa Street Brewarrina are invalid and null and void. 3 Thirdly, the applicant claims damages, including interest. 4 The relevant facts may be briefly described. On 25 August 1999 Brewarrina Shire council ("the council") served two notices of an intention to give an order under s 121B of the Environmental Planning and Assessment Act 1979 (which I shall call thereafter "the EP&A Act") on Mr W A Grant, the applicant before this Court. On 17 September 1999 the council then served notices of orders upon the applicant under s 121B of the Environmental Planning and Assessment Act. 5 The notices in effect required the applicant, the landowner, to execute such works and do all such things necessary to ensure that there was no encroachment of the building standing on the applicant's land beyond the property boundary; and to ensure that the structure complies with the provisions of the Building Code of Australia. It is conceded on behalf of the council that both the notices of intention to give an order, and the orders themselves, were invalid and void. It is not necessary to go into the reasons why they are invalid or void but it is obvious that that must be so. 6 The question then arises as to whether the Court has jurisdiction to entertain the applicant's claim for damages. The claim for damages arises out of the fact that the applicant did not comply with the orders and as a result the council, purporting to act pursuant to s 121ZJ of the Act, itself gave effect to the terms of the orders, entered the land and demolished all the buildings on the land to which the orders related. That was done on 29 February 2000. In so acting the council acted unlawfully. It acted unlawfully because it was purporting to rely upon orders which were themselves void and invalid. 7 Section 16(1A) of the Land and Environment Court Act 1979 provides that the Court has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act. 8 In Scharer v State of New South Wales (2001) 53 NSWLR 299, the Court of Appeal considered the jurisdiction of the Court under s 16(1A) of the Land and Environment Court Act. A claim for damages had been brought pursuant to that provision. Stein JA, with whom Hodgson JA agreed said at 308 [49]) [49] Assuming for the moment that the Land and Environment Court does not have the power in these proceedings to award damages as part of the relief available to enforce the right, it seems to me that s 16(1A) fills the void. Damages are plainly ancillary to the matters which fall within jurisdiction; the existence of the right and its enforcement by injunctive orders or declaratory relief. [50] Nothing in Nix [Nix and Dunn v Pittwater Council (1994) 84 LGERA 199 ] persuades me from this conclusion. Nix was decided in the Land and Environment Court as a matter of discretion, which the Court of Appeal held was open to the trial judge. In obiter Gleeson CJ indicated that the claim based in nuisance sought to be filed as a cross-claim in the Land and Environment Court, could not reasonably be regarded as ancillary. That conclusion is understandable when one examines the facts involved in Nix . They are a far cry from the present situation. [51] Here the damages issue can plainly be seen as ancillary', or, to use the words of Gleeson CJ, as incidental', accessory' or auxiliary', ( Nix at 205). In NTL Australia Pty Ltd v Minister for Land and Water Conservation [2001] 112 LGERA 403 at 411-413 Pearlman J comprehensively refers to the authorities on the provision. [52] It follows, in my opinion, that Santow J was correct to transfer the proceedings to the Land and Environment Court. 9 In Neighbourhood Association DP 285121 v Murray Shire Council& Ors [2001] NSWLEC 247 the Chief Judge considered Scharer v State of New South Wales and held (at [20]) that: "The position seems to be that s 16(1A) does not operate to confer jurisdiction on this Court in relation to a matter which is separate to and independent of the matter properly within jurisdiction.." In that case the applicant's claim for negligence arising out of the installation of a sewage system was a claim framed as a general claim for damages in tort and was not ancillary to a claim that was within jurisdiction. 10 In N&S Oliveri Pty Ltd v Fairfield City Council [2002] NSWLEC 35 Cowdroy J also considered Scharer v State of New South Wales. His Honour summarised the authorities as follows: [34] The decisions referred to above fall within two distinct categories. First, there are those cases where an applicant takes action to recover damages arising out of a common law claim which does not flow directly from the breach of the relevant environmental or planning law. The authorities establish that such a claim is not within the jurisdiction of this Court nor within its ancillary jurisdiction as conferred by s 16(1A) of the EP&A Act because it constitutes a separate claim. Thus in Nix the obiter remarks of Gleeson CJ (at p 203-204) relating to the limit of the Court's jurisdiction were made in reference to a cross claim for nuisance. In Neighbourhood Association DP 285121 the Chief Judge made her finding that this Court had no jurisdiction in respect of a claim for tort. In each of these authorities the claims arose out of the common law and was not ancillary to the breach of the environmental or planning law. [35] The second category of cases are those in which damages arise directly as a consequence of the breach of a statute in respect of which this Court has jurisdiction. In Scharer Stein JA held that this Court had jurisdiction to hear such a claim on two possible grounds. The claim could be determined because it constituted "...part of the enforcement of the same right..." (i.e. within s 20(2) of the LEC Act) arising in consequence of the breach of the environmental statute, or alternatively because it was ancillary within the terms of s16 (1A) of the LEC Act. It should be noted that in Stables Perisher [ National Parks & Wildlife Service & Anor v Stables Perisher Ltd (1990) 20 NSWLR 573, (1990) 71 LGRA 286] , the Court of Appeal was then of the opinion that s 22 of the LEC Act could not extend the jurisdiction of the Court to award damages. [36] Sharer thus clarifies the power of this Court to award damages. If a claim can be categorised as one which constitutes part of the enforcement of the right arising out the breach of a planning law or if such claim is ancillary to such breach, the Court possesses the requisite jurisdiction to hear the claim. [37] The imposition of an invalid condition in a planning consent constitutes a breach of the EP&A Act (see: Building Owners and Managers Association of Australia [ Building Owners and Managers Association of Australia Ltd v Sydney City Council (1984) 53 LGRA 54] at p 72), and the claim for damages arises directly in consequence of such breach and is incidental thereto. The circumstances are indistinguishable from Scharer but distinct from NTL [ NTL Australia Pty Ltd v Minister for Land and Water Conservation (2001) 112 LGERA 403] , Nix and Neighbourhood Association DP 285121. The Court therefore determines that the claim for damages is one which may be entertained only by the Court pursuant to s 16(1A) of the LEC Act. 11 In applying the above-mentioned authorities to the present case, it is clear that the claim for declaratory relief falls fairly and squarely within this Court's jurisdiction described in s 20(2) of the Land and Environment Court Act; that is, it is a claim to make declarations of right in relation to a right, obligation or duty in the exercise of a function conferred or imposed by planning or environmental law. By sub-s (3) of s 20 of the Land and Environment Court Act the provisions of the EP&A Act 1979 are a planning or environmental law. 12 The actions of the council in purported reliance on its powers under s 121ZJ of the EP&A Act which in turn are dependent upon a purported exercise of its powers under s 121B of that Act, are therefore matters that fall fairly and squarely within s 20(2) of the Land and Environment Court Act, so that the present claim for damages is ancillary to a matter falling within the Court's jurisdiction. 13 In other words, I hold that the Court has jurisdiction to hear and determine the claim for damages arising from the council's breach of the Act.

                      I hereby certify that the preceding 13 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd

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