Hutchison 3G Australia Pty Limited v Hurstville City Council

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40158 of 2003

18 March 2003. HUTCHISON 3G AUSTRALIA PTY LIMITED (ACN 096 304 620) Applicant v HURSTVILLE CITY COUNCIL Respondent Judgment Introduction 1 In this Class 4 application the Applicant claims the following relief:

1. A declaration that the Order dated 10 February 2003, given by the Respondent to the Applicant pursuant to s 121D of the Environmental Planning and Assessment Act 1979 (NSW) (the EP&A Act), and item 12 to the table to s 121B of the EP&A Act (the Order), is invalid.
2. In the alternative to par 1 above, a declaration that the Applicant is not obliged to comply with the Order, by operation of cl 37 of Sch 3 of the Telecommunications Act 1997 (Cth).

3. Orders that: (a) the Respondent pay the Applicant's costs of these proceedings (b) such further or other orders as the Court sees fit.

2 These proceedings are related to matter no. 40143 of 2003 between Hurstville City Council and Hutchison 3G Australia Pty Limited. I have handed down a separate judgment in those proceedings (Hurstville City Council v Hutchison 3G Australia Pty Limited [2003] NSWLEC 52) and I will refer to that judgment where relevant to these proceedings. The background facts to these proceedings can be found in that judgment.

3 Interlocutory orders are sought in the application, but as I am determining the matter on a final basis it is not necessary that I make a decision on an interlocutory basis.

4 The terms of the Order issued by the Council, the validity of which is challenged by the Applicant, are as follows:

Re: Unlawful building work Property: Oatley Park

This Order is given, and expressed to be given, in an emergency pursuant to Clause 121D of the Environmental Planning and Assessment Act 1997 [sic] ("the Act") without prior notice being given.

Pursuant to Part 6 Division 2A Clause 121B, of the Environmental Planning and Assessment Act, 1979 ("the Act"), Hurstville City Council gives you, as the Contractor working on the above property, an Order in terms of item 12 to the table to Part 6 Division 2A Clause 121B of the Act. The terms of the Order are:

1. To immediately cease carrying out excavation and building works in the area of the oval within Oatley Park, Oatley and restore the land to the condition in which it was before the work was unlawfully commenced.

Reason for the Order

1. The work has been unlawfully carried out without the owner's consent and contrary to the public interest.

The period specified by the Council as the period within which the order is to be complied with is from time and date of receipt of this order, namely:

Time: Date: 10th February, 2003. Relevant legislation 5 Section 121B of the EP&A Act provides: (1) An order may be given to a person by:

(a) a council, or … to do or refrain from doing a thing specified in the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.

Item 12 in the table to s 121B provides: Column 1 Column 2 Column 3 To do what? In what circumstances? To whom? To do such things as are specified in the order to restore premises to the condition in which they were before building was unlawfully erected or before work was unlawfully carried out (a) Building has been unlawfully erected, and an order No 2 has been given requiring the building to be demolished or removed The owner of the premises, any person entitled to act on a development consent or complying development certificate or any person acting otherwise than in compliance with a development consent or complying development certificate (b) Work has been unlawfully carried out

6 Section 121D of the EP&A Act provides: Before giving an order, the person who gives the order must comply with sections 121F - 121K, except for: (a) order No 8 in the Table to section 121B, or (b) an order given, and expressed to be given, in an emergency.

7 Sections 121F - 121K of the EP&A Act relate to matters such as the giving of a notice of intention to issue an order, the making of representations and hearing of representations in relation to the proposed order, and the procedure after those representations have been considered.

8 Section 121L of the EP&A Act provides: (1) A person who gives an order must give the person to whom the order is directed the reasons for the order. (2) The reasons may be given in the order or in a separate instrument. (3) The reasons must be given when the order is given, except in an emergency. In an emergency, the reasons may be given the next working day. Council's arguments 9 The Council offered no substantive arguments in relation to the validity of the Order and submitted only that its arguments in relation to the unlawfulness of the Applicant's actions raised in the related proceedings 40143 of 2003 would apply here also.

10 The Council made the following submissions in relation to the sequence of events which led up to the issuing of the order. Firstly, work was commenced by the Applicant. The council requested that the Applicant stop work, but the request was not complied with. An order was made and served by the Council upon the Applicant, but was not complied with. The parties then came to Court on 10 February 2003 (in matter no. 40143 of 2003) and in those proceedings the Council did not seek to enforce the order. Cross-undertakings were given by the parties and work by the Applicant stopped. The Council submitted the question is whether the Applicant has authority to carry out the work without development consent (the question in issue in matter no. 40143 of 2004). The order is of no consequence. I note that in response to this the Applicant stated the challenge to the order was necessary because failure to comply with it may have consequential sanctions. Applicant's arguments 11 The Applicant argued there were several grounds for invalidity of the Order.

1. Was there an emergency? 12 The Order is expressed to be issued pursuant to an emergency and was therefore issued without compliance with s 121F - s 121K of the EP&A Act (as envisaged by s 121D(b) in cases of emergency), which includes the notice of intention to issue an order and the making of representations.

13 It was argued there was no basis for the Council to issue an emergency order. It is noted there is no definition of "emergency" under s 121D of the EP&A Act. Reference was made to cases in admiralty where emergency has been likened to an apprehension of "the near approach of" or "immediate" danger or actual or apprehended danger above the normal state of affairs: see Larchbank v British Petrol [1943] AC 299 at 304 (Lord Atkin), at 309 (Lord Porter). The Applicant submitted no such situation existed here.

2. The Order is impossible to carry out 14 It was argued the terms of the Order referring as it does to the need to restore the land immediately, a physical impossibility, renders the notice impossible to carry out.

3. Inadequacy of reasons for issuing the order 15 Under s121L of the EP&A Act, if no reasons are given at the time of the service of a notice due to an emergency situation the reasons are required to be given the next day. Here, the reasons are contained in the order. No further reasons have been provided. The reason given in the Order is that work has been unlawfully carried out without the owner's consent and is contrary to the public interest. It is not said why it is contrary to the public interest or if it is a ground invoking statutory sanction and therefore these reasons are inherently obscure.

16 The notice says work was unlawfully carried out but does not say why. This omission is significant because Council had received notice, as required under the Telecommunications Act 1997 (Cth), of the Applicant's intention to carry out the work. In relation to whether the work was lawful, Council's own records suggest the work was lawful and there was nothing that could be done to prevent it (see Council officer's report attached to a letter dated 13 December 2002 from Andrew Sharp to Mr McGuire - pages 49 - 53 of the affidavit of Ms Brewer). Bignold J in Van Haasteren v South Sydney Council (2000) 109 LGERA 252 stated that it was necessary when providing reasons that these make clear the discretionary basis on which the powers under the EP&A Act are being exercised (here s 121D and item 12 to the table to s 121B). The reasons given cannot simply restate the circumstances which enliven the power.

17 This decision was considered in J & J O'Brien Pty Ltd v South Sydney City Council (2002) 121 LGERA 223 by Stein J (Handley and Giles JJA agreeing) where his Honour held (at 231) that: The order should be read as a whole. When this is done, the reasons for the exercise of the council's statutory discretion are plain…

I cannot accept that the circumstances which enliven the power to give an order can never be identical to the reason for exercising the power…In this regard, it may be that if Van Haasteren…is authority for a proposition of general application, it goes too far and should not be accepted without qualification in cases where the statement of the circumstances enlivening the power is sufficient without more to make plain to the recipient the basis and reason for the decision to issue the order.

In my view, the recipient of the subject order could be in no doubt as to the rationale for the giving of the order.

18 Applying this decision and Van Haasteren the Applicant argued that there was nothing in the Order on its face to give any guidance as to the basis for the Council's reasons.

4. The work was lawful 19 The Applicant relies on its submission in matter no. 40143 of 2003 in relation to this point. Finding 20 The Council has offered no arguments to contest the submissions put by the Applicant in relation to the invalidity of the s 121D Order issued by it apart from the question of the lawfulness of the Applicant's actions as referred to at par 9 and the sequence of events set out at par 10. 1. What does emergency mean in a s 121D context? 21 As the Council has not sought to justify its actions in issuing the Order apart from setting out the sequence of events set out in par 10, I am not aware of its reasoning in issuing the Order on an emergency basis. I do not find the definitions of "emergency" presented by the Applicant particularly helpful in an environmental and planning context where emergency may well extend to include imminent environmental harm. As it is not necessary to decide this issue as the Order is invalid on other grounds, I will not express an opinion as to its meaning in the context of s 121D of the EP&A Act. However, I do note that there is no evidence presented by the Council to demonstrate that there is a valid reason for issuing the Order on an emergency basis. 2. Impossible to carry out? 22 It is clearly unreasonable for the Order to state that remediation of land take place immediately. The usual course would be that a reasonable period would be specified in an order to allow this to occur. 3. Inadequacy of reasons? 23 The reasons for the Order provided are, firstly, that the work is unlawful. In the proceedings no 40143/03, I have come to the view that the telecommunications facility proposed by the Applicant does not require the Council's development consent under the EP&A Act. Accordingly this reason is not valid to found this order. The other reason provided is that the activity is contrary to the public interest. I agree with the Applicant's submission that it is too general to provide any useful guidance to the Applicant as to the reason why the Order has been issued and no help is gained when the Order is read as a whole. I do not think that is an adequate reason on which to found the issue of an Order. 4. Is the work lawful? 24 I have already held in the related proceedings (40143 of 2003) that the Applicant is not required to obtain development consent. Accordingly, the Applicant must succeed on this ground also.

25 I am satisfied on grounds 2, 3 and 4 raised by the Applicant that the notice is invalid. Accordingly, I will make the first declaration sought in the Class 4 Application. Prayer 2 in the Class 4 application seeks an alternative order to the effect that the Applicant is not obliged to comply with the Order by operation of cl 37 of Sch 3 of the Telecommunications Act 1997 (Cth). It is unnecessary to make the second alternative declaration sought. Costs 26 Costs are reserved as no argument has been heard from the parties on this issue. Declarations and Orders

1. The Court declares that the Order dated 10 February 2003, given by the Respondent to the Applicant pursuant to s 121D of the Environmental Planning and Assessment Act 1979, and item 12 to the table to s 121B of the EP&A Act is invalid.
2. The Court orders that the question of costs be reserved. 3. The exhibits are to be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.