Supreme Court of SA|1997-07-25|Before: Doyle CJ, Lander JJ

For the reasons given by Duggan J, with which reasons I agree, I would dismiss the appeal by Mr and Mrs Sullivan against the decision of the Environment Resources and Development Court of 6th December 1996, dismissing the appeal to that Court.

I would allow the appeal by Mr and Mrs Sullivan against the decision of the Environment Resources and Development Court of 6 December 1996, and for that decision I would substitute an order that the appeal to the Environment Resources and Development Court, against the notice issued by the District Council of Riverton and dated 5th March 1996, be allowed, and that the notice be quashed. I would dismiss the cross-appeal by the District Council of Riverton against the decision of the Environment Resources and Development Court, given in the appeal to that Court against the notice issued by the Council.

The female appellant is the owner of land at Washington Road, Riverton. She and her husband, who is the other appellant, live in a home situated on the land. The property is 1.337 hectares in area and is situated on the north-western edge of the built up area of the township.

On 20th February 1992 Mr Sullivan submitted a development application to the respondent seeking consent for the erection of a large shed on the land. The respondent approved the application subject to various conditions including the following: "4. The shed herein approved and the subject land generally being restricted to domestic purposes only, ancillary to the residential use of the land, with no trade, business or industrial activities being carried out or allowed at any time.

No external storage of material, goods, products or the like (including car parts or bodies) being undertaken or allowed outside of the shed herein approved at any time."

Mr Sullivan appealed against three of the conditions including the two quoted above. He then arranged for the shed to be erected on the land without waiting for the result of the appeal. The Planning Appeal Tribunal in its decision of 13th August 1992 revoked the approval altogether on the ground that Mr Sullivan's intention was to use the shed for non-residential purposes.

Mrs Sullivan then applied by a development application dated 26th August 1992 for planning approval for the construction of the shed. The application gave the proposed use of the shed as "domestic purposes". After receiving an undertaking from Mrs Sullivan that the shed was to be used for domestic purposes only, with no commercial activity, the respondent approved the application on 28th October 1992. The approval was subject to conditions confining the use of the land to domestic purposes and prohibiting external storage of items. The enforcement notice to which I have referred was issued in March 1996 when the respondent advised that it had reason to believe that there was a failure to comply with the conditions. I will deal with that issue later in these reasons.

Mr Sullivan submitted a further development application to the respondent on 4th April 1996. The nature of this application and its fate are dealt with in the following passage from the judgment of the ERD court: "The application described the proposed development as being 'light industrial shed'. Although, quite clearly, this description was erroneous, little turns upon it, for the application was accompanied by a lengthy letter (4 pages) in which Mr Sullivan set out, in some detail, what he proposed. The letter was accompanied by three pages of plans plus five additional pages which were extracts from a document entitled 'Tourism Strategy'. The Council classified the application as being for a Category 3 development within the terms of Section 38 of the Development Act, and gave notice of it accordingly. As a consequence it received nine representations, many (but not all) of which opposed the development applied for. Several agreed to what was proposed but subject to imposition of strict conditions and provided that such conditions are enforced by the Council. The Council sought the advice of its consultant planner Mr Hart. In due course it decided to refuse the application. Its refusal is set out in decision notification form dated the 17th May, 1996, which notification form describes the proposed development as being 'light industrial service workshop'. The refusal form gave, as the Council's reason for refusal, that:-

'the application be refused development approval as it is significantly at variance with the provisions of the Development Plan to oppose the establishment of an industrial based business in that the proposed use and its associated activities, operations and processes are inappropriate for the site and the locality and because of their likely adverse affect on the character and amenity of that locality and the inconsistency with its orderly and proper planning.'"

The application was amended on 27th June 1996, but the amended application was also refused by the respondent. The appellants then appealed to the ERD court.

The members of the ERD court were of the opinion that the appropriateness of planning approval turned on two issues: the acceptability of the proposed land use in light of the provisions of the Development Plan and the impact which such use would have on abutting land in the locality.

The parts of the Development Plan regulating development in the Riverton area are the Mid North provisions and another plan relating specifically to Riverton. The Riverton provisions are general in scope. There are no complying or non-complying uses set out; nor are there any zoning provisions.

The ERD court identified the following provisions as being of most relevance to the application: "Mid North

Objective 2: A proper distribution and segregation of living, working and recreational activities by the allocation of suitable areas of land for these purposes.

Objective 24: The amenity of localities not impaired by the appearance of land, buildings and objects.

Principle 2: New housing and other urban development should ... create a safe, convenient and pleasant environment in which to live.

Principle 19: The appearance of land, buildings, and objects should not impair the amenity of the locality in which they are situated."

The members of the ERD court decided that the proposed development was not supported by the relevant provisions of the Development Plan and gave the following reasons: " * Whilst we express no views as to the economics of the proposed development, we do not regard its establishment on the subject land as being orderly. To establish, as a new use, a motor repair station and 24 hour tow truck depot immediately adjacent to the residential portions of a country township and on land which would, but for the establishment of such use, be likely to be used for residential purposes should the township expand is not orderly development.

* The establishment of such a facility in this location does not constitute 'a proper distribution and segregation of living, and recreational activities' as envisaged by Objective 2 of the Mid-North provisions. In so saying, we acknowledge that the Riverton portions of the Development Plan make no provision for the attainment of such segregation 'by the allocation of suitable areas of land for those purposes' as recommended by the Objective. However, we construe the provisions of the Development Plan as seeking such segregation, as such segregation constitutes a well established and basic principle of town planning practice.

* Although much can be done by means of landscaping (some of which has been already established but is, as yet, far from maturity) and the construction of a screened compound to reduce the present unsightly appearance of vehicles stored on the subject land, we have come to the conclusion that the appearance of the proposed development - included [sic] both the storage and movement of motor vehicles - will impair, to some extent, the amenity of the locality.

* The impact of the proposed development (to which we shall refer in greater detail) will detract from the pleasant amenity of the locality. This is particularly so with respect to the residential portions of that locality."

The court went on to consider in detail the question of impact. The members reached the conclusion that the proposed development would have an unacceptable impact on the abutting residential areas, particularly in relation to noise. Furthermore they stated that it would be out of keeping with the mixed residential and rural character of the locality and that it would detract from the amenity of that locality.

The first argument put forward by Mr Crocker, for the appellants, was that the ERD court erred by considering the issues which it identified as being of particular relevance, namely, the acceptability of the proposed land use measured against the Development Plan and the impact on abutting land in that order. According to the argument it was necessary for the court to consider potential impact before addressing the issue of acceptability against the Development Plan.

There is nothing in the Development Act, 1993 which requires the consideration of the relevant issues in any particular order. The only basis put forward in support of this ground was that logic required consideration of the impact issue first. In my view this complaint does not give rise to a question of law. However, as argument took place in relation to it, I propose to state my view on the issue.

The argument advanced by Mr Crocker is premised on the existence of a relationship between the assessment of the proposed use of the land against the Development Plan and the consideration of the potential impact of the use on the abutting land. The court acknowledged that such was the case when it stated: "There is little doubt that the principal impact of Mr Sullivan's activities upon the abutting residential area will arise from noise. We find it difficult to assess, with any precision, how much noise will be emitted from the premises if the development approval now sought is granted. Whilst viewing the premises, Mr Sullivan operated the electrical equipment presently on the land and which he presently uses. Some of the equipment, such as the tyre removal /replacement machine and the wheel balancer, emit noise of such a low level that it is unlikely to give rise to reasonable complaint, particularly if used only during the restricted hours agreed to by Mr Sullivan. To a lesser extent, the same may be said with respect to the compressor. Noise from other equipment, such as the electric chisel, may be more intrusive. Furthermore, the possibility that Mr Sullivan will acquire other equipment should not be overlooked. There will also be noise emitted by the movement of motor vehicles on the land, some of which will be heavy vehicles. Given that the tow truck operations will be undertaken on a 24 hour basis, some of this noise will be emitted at night. If the business prospers, as well it might, the level of such noise is likely to increase in proportion.

Thus, if the approval now sought is granted there will be a motor repair station / motor storage depot / tow truck depot operating on land immediately adjacent to detached dwellings. Such a development will be out of character with the residential areas abutting and, although we place less reliance on this, out of character with the rural character of the remaining portion of the locality. In our view and even accepting the conditions and restrictions agreed to by Mr Sullivan, the proposed development will have an unacceptable impact upon the abutting residential areas, the principal impact being, as we have said, noise. The fact that the proposed development will be out of keeping with the mixed residential/rural character of the locality and will have the impacts to which we have referred means that, in our opinion, it will detract from the amenity of the locality. It is, we think, unacceptable in planning terms."

When regard is had to the matters referred to by the court in support of its conclusion that the proposed development was not supported by the Development Plan, it is obvious that it did not lose sight of the potential impact of the development, although it dealt with that specific topic in more detail at a later stage. It is clear that the court understood the relationship between the two principal issues which it identified and that it took the issue of impact into account when assessing the wider issue of the provisions of the Development Plan. Even if it had not mentioned the question of impact at the same time as it dealt with the Development Plan it must be remembered that simply because one issue is dealt with after another in a judgment does not imply that it was not in the mind of the court when consideration was being given to the first issue. In my view there is no merit in this aspect of the appeal.

It was further argued that the court confined its assessment to the impact of the proposal in relation to the abutting land whereas its more important function was to consider impact on the locality as a whole. It is true that the entire locality must be taken into account, but in the circumstances of the present case the court's attention was not drawn to the relevance of any other area in the locality which might have supported a view different from that adopted by the court. The locality was defined and described by the court in the following passage:

"In our view, the relevant locality of the subject land is not extensive

it extends approximately 100-200 metres from the shed. It includes all residential development abutting both the subject land and an adjacent street to the east, namely Hartley Street. It extends north across Washington Road to include an area which might be best described as rural residential - an extensive open area accommodating only one or two dwellings. It extends to the south to include portion of the primary school and includes some farm land to the west. Thus the character of the locality is mixed. To the east and south it is mainly residential and includes a primary school. To the north it is rural living and to the west is open farm land which appears, at least to us, to be currently used for grazing purposes. The residential area to the east consists, by and large, of comparatively new dwellings enjoying a high residential amenity. We note, however, that there are several old dwellings and a vacant allotment which, the evidence suggests, is frequently used as a builders yard. It is not unreasonable, in our view, to describe the subject land as lying at the extreme north western edge of the urban portions of the township of Riverton, as they exist today."

In support of his argument Mr Crocker relied on Lanzilli Holdings Pty Ltd v Corporation of the City of Campbelltown [1982] 32 SASR 81, a case in which it was held that other development within the relevant locality was ignored by the Planning Appeal Board which confined its attention to the homes of objectors who were closest to the proposed development. The appellant sought consent for the use of premises as a furniture factory. The locality included other residential areas, a portion of the McNally Training Centre and the light industrial zone in which the subject land was located. It was held that a consideration of the amenity of the locality was not to be confined to those who lived on the boundary of an area which was zoned light industrial.

In the present case, however, I think that the ERD court was justified in focussing on the abutting residential area. The remainder of the locality consists of a mixture of residential, rural residential and farmland areas. It has not been demonstrated that there was anything in the nature of the rest of the locality which would support a conclusion different from that arrived at by the ERD court.

The appellants complained of the court's approach to Objective 2 of the Mid-North plan which I have set out above. I have recorded what the court had to say about this objective. According to the argument advanced by the appellants the objective required the respondent to introduce formal zoning. It was said that the ERD court confined its attention to the first part of the objective dealing with a proper distribution and segregation of living, working and recreational activities and ignored the requirement that this was to be done by means of zoning.

In my view the construction of objective 2 which was contended for by the appellants is unduly narrow. There is nothing in the development plan which would require the allocation to be effected by way of formal zoning. Objective 2 finds its place amongst a number of broad objectives set out in the Mid-North Development Plan. In the absence of zoning regulations, the planning authority is left to achieve the objective as part of its ongoing role in development control. The court was correct in regarding the development plan as encouraging appropriate segregation of living and recreational areas.

Next, issue was taken with the court's statement that:

"To establish, as a new use, a motor repair station and 24 hour tow truck depot immediately adjacent to the residential portions of a country township and on land which would, but for the establishment of such use, be likely to be used for residential purposes should the township expand is not orderly development."

According to the argument it was contrary to the evidence to say that it was likely the land would be used for residential purposes if the town expanded. In making this submission the appellant relied upon the evidence of the expert planning witness Mr Hart who had expressed concerns in a report about flooding to the bottom part of the subject land. At an early stage he had suggested that this might be a reason for refusing the appellants permission to build the house for which, ultimately, they were given planning approval.

Mr Hart expressed the view in his evidence that the subject land might be used in the future for country living or residential purposes. This statement was made in the knowledge that the respondent had decided to allow the appellants to build a house on the land despite the flooding problem. There was no evidence to suggest that the flooding problem would prevent any further residential buildings being erected on the land and so I do not think the court erred in contemplating future residential development on the site. I am of the view that the possibility of further residential development in the locality as part of the town's expansion was just as relevant, if not a more important consideration, than the possibility or likelihood that there would be residential development on the subject land itself. In my view the passage which I have quoted above does not disclose any error.

Various criticisms were made of the court's approach to the impact of the proposed development on the residential area in the immediate vicinity. I have already set out the passage in the court's judgment which deals with this aspect. The main complaint about this approach is that the court did not make a sufficiently definite finding as to the level of impact before giving it the weight which it did.

It is important to bear in mind that the court is a specialist tribunal and that it undertook a view of the locality. It is clear that the members of the court were concerned about the noise caused by the electric chisel and the noise emitted by vehicles being driven on the land. As part of the proposed use tow trucks would be operated from the premises on a 24 hour basis and heavy vehicles would be driven on to the land. But what is important is the potential for an increase in noise in the event that the business was expanded or new equipment purchased. Furthermore the land and business could be sold to persons with an expectation of expanding on the generic use which approval of the proposal would create. The activity would be conducted in close proximity to residences. The court recognised the difficulty of quantifying the impact through noise but this is a matter on which a specialist tribunal is expected to make an assessment and to anticipate future trends. In my view there was sufficient material deriving from the very nature of the proposed operation to equip the ERD court to draw the conclusions on likely impact which it did and it is not for this court to substitute its views on this particular topic for those which are expressed in the judgment appealed from.

I am also of the view that the court was correct in rejecting the appellants' suggestion that activities presently conducted in the residential area abutting the subject land detracted to any significant extent from the amenity of that area. As the ERD court pointed out, they could be characterised as home activities and, if any were not of that type but were of an illegal nature, it was inappropriate to take them into account in deciding on the merits of the proposed development. (Durham v State Planning Authority (1982) 30 SASR 481). The noise emitted by the home activities was taken into account in the assessment and, again, it is not for this court to review the conclusions of the ERD court on such an issue.

Mr Crocker criticised the ERD court for not embarking on a discussion of the evidence given by the planning experts in the case. There was no specific reference to the views of the experts in the judgment, but the arguments which were founded upon the expert evidence were dealt with and it has not been demonstrated that these arguments were not addressed in sufficient detail.

The extent, if at all, to which it is appropriate to take into account the views of experts in a planning case depends very much on the circumstances of the individual case. In Twenty Seven Properties Ltd v Corporation of Noarlunga (1975) 11 SASR 188 at 202 Wells J made the point that where the views of a planning tribunal are plainly contrary to the evidence of all the experts who gave evidence in the case, it is appropriate that those views be put to the witnesses for comment during their evidence. It is also appropriate for the tribunal in such circumstances to reveal in its reasons for decision its process of reasoning so as to provide some insight into the basis upon which it departed from the opinion evidence.

However it is important once again not to lose sight of the fact that this is a specialist tribunal. In this respect the comments of Debelle J in South Australian Housing Trust v Lee (1993) 81 LGERA 378 at 385 are appropriate:

"Frequently the tribunal is required to form a value judgment as to the nature of a proposal, the manner in which it is likely to operate, its likely effect on the relevant neighbourhood or locality and, having determined these and all other relevant factors, determine whether planning consent should issue. These are matters in which the tribunal with its specialist expertise is usually in as good a position as the expert to form a judgment. The evidence of the planners in this case was not unanimous or uncontradicted. Furthermore, the evidence essentially consisted of opinions going to the nature of the facility and its likely impact on the residential amenity, a matter of planning judgment which a specialist tribunal of this kind is well equipped to determine."

In my view the criticism of the ERD court on this issue in the present case is unjustified.

I have reached the conclusion that none of the matters raised by the appellants justify interference with the view of the ERD court that the proposed development does not warrant planning approval. Accordingly I would dismiss the appeal against the refusal.

I have referred to the fact that in March 1996 the respondent served the appellants with an enforcement notice pursuant to s84 of the Development Act. Section 84 provides as follows: "Enforcement notices 84. (1) In this section -

(2) If a relevant authority has reason to believe on reasonable grounds that a person has breached the Act or the repealed Act, the relevant authority may do such of the following as the relevant authority considers necessary or appropriate in the circumstances:

(a) direct a person to refrain, either for a specified period or until further notice, from the act, or course of action, that constitutes the breach;

(b) direct a person to make good any breach in a manner, and within a period, specified by the relevant authority;

(3) A direction under subsection (2) must be given by notice in writing unless the relevant authority considers that the direction is urgently required, in which case it may be given orally by an authorised officer.

(4) If a direction is given orally under subsection (3), the authorised officer who gave the direction must confirm the direction by notice in writing by 5 p.m. on the next business day.

(5) A written notice under subsection (3) or (4) must set out any appeal rights that the person may have under this Act.

(6) If a person fails to comply with a direction under subsection (2)(b) within the time specified in the notice, the relevant authority may cause the necessary action to be taken.

(7) The reasonable costs and expenses incurred by a relevant authority (or any person acting on behalf of the relevant authority) under this section may be recovered by the relevant authority as a debt due from the person whose failure gave rise to the action.

(8) Where an amount is recoverable from a person by a relevant authority under this section -

(a) the relevant authority may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person, and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the prescribed rate per annum on the amount unpaid; and

(b) the amount together with any interest charge so payable is until paid a charge in favour of the relevant authority on any land owned by the person.

(9) An appeal against a notice under this section must be commenced within 14 days after the direction is given to the appellant unless the Court allows a longer time for the commencement of the appeal.

(10) Subject to any order of the Court to the contrary, the operation of a direction is not suspended pending the determination of an appeal.

(10a) In an appeal against a notice issued by a relevant authority under this section, the Court may make such orders as to costs as it thinks fit.

(11) A person who contravenes or fails to comply with a direction under this section is guilty of an offence.

(12) A direction cannot be given under this section if it appears that the breach occurred more than 12 months previously."

The notice issued in the present case was is the following form: "DISTRICT COUNCIL OF RIVERTON

TO: IAN AND ALISON SULLIVAN 25 Washington Road RIVERTON SA 5412

FROM: DISTRICT COUNCIL OF RIVERTON 6 Master Street RIVERTON SA 5412

A. You are the owner of land situated at 25 Washington Road, Riverton ('the Land').

B. By a Planning Decision Notification for DA968/1224/92 dated 28 October 1992 the council approved the construction of a domestic garage on the Land ('the approval').

C. The said approval was granted subject to six conditions. Conditions 4 and 5 were as follows:

'4. The shed herein approved and the subject land generally being restricted to domestic purposes only, ancillary to the residential use of the land, with no trade, business or industrial activities being carried out or allowed at any time.

No external storage of material, goods, products or the like (including car parts or bodies) being undertaken or allowed outside of the shed herein approved at any time.'

D. The Council has reason to believe that you have breached Section 46(2) of Planning Act 1982 in that you have contravened, or failed to comply with, Conditions 4 and 5 of the approval. In particular, you have caused, suffered or permitted the aforementioned garage to be used for trade, business, or industrial activities in the nature of a motor repair and servicing business known as Riverton Motors and you have allowed materials, goods, products or the like (including car parts or bodies) to be stored outside of the aforementioned garage.

E. The Council also has reason to believe that you have breached Section 44 of the Development Act 1993 by using the Land for business purposes in the nature of motor repair servicing and the storage of car bodies and parts without the authorisation of the Council.

F. The Council considers that it is necessary and appropriate in the circumstances that you be directed to remedy your breach.

Immediately refrain from causing, suffering or permitting the use of the Land or the garage for business purposes in the nature of motor repair and servicing and for the storage of car bodies and parts; and

Within 14 days of the date of this Notice remove all materials, goods, car bodies and parts being stored outside of the said garage from the Land.

SIGNED for and on behalf of the District Council of Riverton.

(signature) .......................................................................... District Clerk."

For reasons which I will explain in due course the ERD court quashed the notice in so far as it purported to apply to Mrs Sullivan. Although the court agreed that there were deficiencies in the notice, it decided to uphold it in relation to Mr Sullivan. The appellant has appealed against the failure to quash the notice in relation to Mr Sullivan and the respondent has cross-appealed against the striking out of the directions in the notice applicable to Mrs Sullivan. Before dealing with these issues it is appropriate to say something about the nature of the appeal to the ERD court against the enforcement notice.

A person who has been served with an enforcement notice may appeal against the notice pursuant to s86 of the Act. The court may "affirm, vary or quash" the notice (s88(b)) but no grounds of appeal are listed in the Act. This approach contrasts with the Town and Country Planning Act, 1971 (UK) which specifies a number of grounds upon which an appeal against an enforcement notice may be based including the ground that a breach of planning control has not taken place.

Section 84(2) of the Development Act provides for the issue of a notice if the relevant authority has reason to believe on reasonable grounds that a person has breached the Act. Although the right to issue the notice is based on the requisite belief, the directions which may be given assume that a breach of the Act has taken place. There follow certain procedural requirements for the issuing of the notice. In my view an appeal may relate to the existence of the belief and its reasonableness as both requirements are necessary preconditions for the issue of the notice. Furthermore, as the direction would be meaningless if there was no breach, it would seem that the question as to whether or not there was a breach can also be made the subject of an appeal. The procedural requirements are mandatory and any alleged failure to comply with them would also be an obvious ground of appeal.

I think it is also essential that the notice indicate in reasonably clear terms the nature of the breach and what is required in order to put it right. A notice which does not achieve this is not a proper notice under the Act and in my view it may be inferred that an objection based on an alleged deficiency in this respect is a proper subject of appeal. I deal with the importance of the notice being clear and unambiguous later in these reasons.

There was argument before this court as to who bears the onus on appeal. This is a question which has arisen under the English legislation previously referred to. There are important differences in the schemes provided for in the English and South Australian legislation, but I think the English authorities are of some assistance in relation to the matter of onus. The appeal against an enforcement notice issued pursuant to the terms of the Town and Country Planning Act (UK) is to the appropriate Minister. Nothing is said in the legislation as to the onus on appeal. However in Nelsovil Ltd v Minister of Housing and Local Government [1962] 1 All ER 423 at 427 Widgery J relied on the general proposition that "a person given a right to appeal on certain specified grounds is the person who has to make good those grounds". His Honour also found support for this view in the fact that the grounds specified in the legislation, including the ground alleging no breach of the planning legislation, of their nature suggested that the onus rested on the person appealing. The only exception was a ground that the enforcement notice was not served on the owner or occupier of the land within the time specified in the Act. Nelsovil's case was followed in Ferris v Secretary of State for the Environment (1988) 57 P & Cr 127 at 134. See also Tidswell v Secretary of State for the Environment (1977) 34 P & Cr 152 at 156.

The right to issue an enforcement notice under the Development Act and direct compliance with its terms is based on the belief of the authority on reasonable grounds that there has been a breach of the Act. It is the intention of the legislature that, subject to appeal, the breach itself need not be proved in order for the direction to be given. Whether or not there has been a breach may be difficult to prove and, at least in the area of enforcement, no more than a reasonable belief is sufficient for the issue of the notice. That being so, it would seem that it is for the appellant to establish the existence of facts which, if accepted, would lead to the quashing of the notice.

It is not essential for present purposes to decide this issue, but the tentative view which I have expressed is not inconsistent with the fact that in the event of a prosecution the respondent would be required to prove a failure to comply with the direction in a valid notice. The Act provides for a separate proceeding in the form of an appeal to determine the validity of the notice. The fact that the notice can be quashed if it is established that there was no breach does not mean that the appeal hearing takes on any of the characteristics of a hearing to determine finally whether an offence has been committed against s84(11) of the Act. The appeal is confined to the preliminary issue as to whether the notice is valid and the use of the appeal procedure to determine this issue is indicative of an intention on the part of the legislature that the onus should be on the party seeking to set the notice aside.

Mr Crocker argued that there were a number of deficiencies and ambiguities in the notice which was issued in the present case. Before dealing with these arguments it is necessary to examine in more detail the nature of the notice under s84 of the Act. Apart from Remove-All Rubbish Co Pty Ltd v City of Munno Para [1994] EDLR 282, a decision of the ERD court, there would appear to be no authority on the operation of s84. In that case the ERD court decided that a notice issued under the section must specify each breach with respect to which a direction is given. Although the identification of the breach to which the reasonable belief attaches is not a specific requirement of the section, it was the court's view that logic and common sense required that the notice should specify with reasonable particularity the alleged breaches and the directions which have to be complied with by the person to whom the notice is addressed. The court went on to hold that the particulars of the relevant breach which are set out in the notice "must relate directly and materially to the direction or directions given". In the case then under consideration the notice required the company to undertake various actions "to make good breaches of conditions of the aforesaid approval". It was held that the words quoted fell short of identifying the alleged breaches with reasonable particularity and that a notice which failed to meet the requirements of the section when served could not be rectified by the supply of particulars or other action on the part of the authority which issued it.

In that case the ERD court was reluctant to have regard to precedents taken from other areas of the law where authorities are empowered to serve notices requiring compliance of one sort or another. I respectfully agree that care must be taken in obtaining assistance from decisions which turn on the meaning of differently worded statutes. However I think the more general principles formulated in some of the cases are of use in determining what is required of the authority in issuing a notice under s84.

In Re Lawrence (1994) 11 WAR 549 the Full Court of the Supreme Court of Western Australia had before it a case in which the applicant was charged with failing to comply with a requirement contained in a pollution abatement notice issued under the Environmental Protection Act 1986 (WA). Section 65 of that Act provides that if the Chief Executive Officer of the Environment Protection Authority is satisfied that waste which does not comply with certain standards is being discharged from premises, the owner or occupier can be served with a pollution abatement notice. Section 65(2) states: "(1) If the Chief Executive Officer is satisfied that any waste is being or is likely to be discharged, or any noise, odour or electromagnetic radiation is being or is likely to be emitted, from any premises into the environment, and that that waste or noise, odour or electromagnetic radiation - (a) does not comply with, or would not if it were discharged or emitted into the environment comply with - (i) any standard required by or under an approved policy; or (ii) any prescribed standard; (b) has cause or is causing or likely to cause pollution, the Chief Executive Officer may cause to be served on the owner or the occupier, or on both the owner and the occupier, of the premises a pollution abatement notice in respect of the premises. (2) A pollution abatement notice - (a) shall specify the reason for which it is served; (b) may require any person bound by it to take such measures as - (i) the Chief Executive Officer considers necessary to prevent control or abate the discharge of waste or emission of noise, odour or electromagnetic radiation to which the pollution abatement notice related; and (ii) are specified in the pollution abatement notice, within such period as is specified in the pollution abatement notice. ... ... (5) A person who is bound by a pollution abatement notice and who does not comply with the requirement contained in the pollution abatement notice commits and offence. ... (8) In this Section - 'specified' means specified in the pollution abatement notice concerned."

When dealing with the argument that the notice was uncertain as to expression and operation Malcolm CJ said (566): "As I have already indicated, the provision that the relevant measures must be 'specified' is that such measures must be unambiguously identified and made clear in the notice itself. I note that this was also the approach taken by Gobbo J in Environment Protection Authority v Simsmetal Ltd (at 617; 316). That case was concerned with s62A of the Environment Protection Act 1970 (Vic) which relevantly provides that the authority may by notice in writing direct a relevant person 'to take the clean-up measures as specified in the notice'. Gobbo J said (at 629; 318): 'The Act goes beyond requiring merely a notice that identifies the pollution and calls on the recipient to remedy it. It obliges the Authority to specify the measures.'

Gobbo J referred with approval and applied the decision in Perry v Garner [1953] 1 QB 335 in which the occupier was served with a notice requiring him to take certain steps for the destruction of rats on his land. The notice required poison treatment 'or other work of a not less effectual character'. The Act under which the notice was served spoke of a notice requiring such reasonable steps for the purpose 'as may be so specified'. Lord Goddard CJ (with whom Croom-Johnson and Pearson JJ agreed) said:

'In the opinion of this Court, that is not specifying the steps which are to be taken. The notice specifies a step which the defendant may take, namely, poison treatment, but it tells him that he may take other steps which are not specified. The notice at once becomes unspecific because it directs the doing of a particular thing or something else, and the something else is left completely at large. I do not think, therefore, that it can be said that this notice complies with the section. If it had confined itself to poison treatment, there would have been a compliance, but as it does not, in my opinion this is not a good notice under the Act.'

It is clear that the notice must unambiguously identify and make clear the measure to be taken."

At a later stage in his judgment when dealing with the possibility of severance his Honour said (567):

"In my opinion, measure 1(b) was a significant and important portion of the notice and the notice would have a different character if measure 1(b) were simply severed."

Malcolm CJ then examined the notice and expressed the view that some of the requirements in it were clear whereas other lacked specificity. He concluded:

"When one looks at the notice as a whole, it would be quite inappropriate to attempt to sever those parts of the measures which are valid from those which are invalid so as to preserve an emasculated notice."

In Environment Protection Authority v Simsmetal Ltd [1991] VicRp 34; [1991] 1 VR 623 referred to in the judgment of Malcolm CJ the court was dealing with a compliance notice issued under the Environmental Protection Act (Vic). Gobbo J referred to Melbourne Home of Ford Pty Ltd v Trade Practices Commission [1980] FCA 94; (1980) 47 FLR 163 and Pyneboard Pty Ltd v Trade Practices Commission (1982) 39 ALR 565, cases which dealt with notices to supply information under the Trade Practices Act 1974. In the second of those cases the Full Court of the Federal Court held that where refusal or failure to comply with such a notice is punishable by imprisonment or fine it was an implicit condition of the validity of the notice that it convey "with reasonable clarity, to the recipient what information he is required to furnish or what documents he is required to produce" (570).

When dealing with the matter of severance in the Simsmetal case Gobbo J said (supra at 631):

"It is in any event arguable that a court should be more reluctant to grant severance in respect of the contents of a notice than in respect of a statute or a regulation. In the case of the latter, amendment is more difficult and invariably a matter of delay. In the case of a notice, the remedy is much simpler in that the authority can deliver a fresh notice."

In my view the general approach taken in these cases is applicable to a consideration of notices issued under s84 of the Development Act. The section provides for severe consequences for failure to comply with the directions in the notice. It is appropriate, therefore, that the notice should be clear and unambiguous in its terms.

There are a number of unsatisfactory features about the enforcement notice which was issued by the respondent in the present case. It described both appellants as owners although this description did not apply to Mr Sullivan. (I should add that the fact that he is not the owner does not prevent a direction being given to him). It referred to breaches of the Planning Act 1982 in paragraph D when those alleged breaches were out of time. This meant that the reference to conditions 4 and 5 of the Planning Approval in paragraph C was otiose. Furthermore paragraph F2 of the notice which was based on paragraph D falls with that paragraph.

The only relevant allegation left is that referred to in paragraph E. In light of the existing ambiguities in the notice it would have been helpful if it had referred to the subsection of s44 which was relied upon. The respondent probably had s44(1) in mind. However there is further ambiguity in paragraph F1. The first part of the paragraph up to the word "servicing" can be related back to the allegation in paragraph E, but, in the way in which the remainder is worded, it is arguable that the storage of car bodies and parts need not have any connection with the business purposes referred to. Storage of vehicles for non-commercial purposes inside the shed is not contrary to the planning approval conditions.

Whereas it will be appropriate in some cases for the court to vary the notice, it is my view that ambiguity and confusion pervades this notice to such a degree that it is not for an appellate court to try to whittle it down to that which is relevant and to amend the wording in an attempt to remove the ambiguities and other deficiencies. Some time was spent during this appeal in construing the notice and attempting to resolve its ambiguities. As I have pointed out notices issued under s84 should be capable of being readily understood by the persons to whom they are directed. The respondent is not prevented from issuing a further notice if it has reason to believe on reasonable grounds that the appellants are currently in breach of the planning approval.

I would allow the appeal on this point and quash the enforcement notice dated 5th March 1996. The cross-appeal would then become irrelevant and I would dismiss it. As I have already indicated I would dismiss the appeal against the refusal to grant planning approval.

I agree with the reasons of Duggan J and the orders proposed.

Environmental Protection Act 1986(WA)

Development Act 1993

Environmental Protection Act 1986(WA)

Development Act 1993

IAN and ALISON SULLIVAN v DISTRICT COUNCIL OF RIVERTON No. SCGRG-96-2255 Judgment No. 6271 Number of pages - 15 Local government (1997) 69 SASR 234 [1997] SASC 6271 (25 July 1997)

Local government - town planning

implementation and enforcement - enforcement notice issued pursuant to Development Act 1993s84(2) directing appellants to refrain from specified activity on the subject land - discussion as to the nature of an appeal to the ERD Court against an enforcement notice. Discussion concerning the requirements of an enforcement notice and the effect of any ambiguities therein. Remove-All Rubbish Co Pty Ltd v City of Munno Para [1994] EDLR 282; In Re Lawrence (1994) 11 WAR 549; Environment Protection Authority v Simsmetal Ltd [1991] VicRp 34; [1991] 1 VR 623, discussed.

IAN and ALISON SULLIVAN v DISTRICT COUNCIL OF RIVERTON No. SCGRG-96-2255 Judgment No. 6271 Number of pages - 15 Local government

At a glance

Court

Decision date

Before

Source

Judgment (107 paragraphs)

"In our view, the relevant locality of the subject land is not extensive

Parties

Legislation Cited (10)

Cases Cited (9)

IAN and ALISON SULLIVAN v DISTRICT COUNCIL OF RIVERTON No. SCGRG-96-2255 Judgment No. 6271 Number of pages - 15 Local government (1997) 69 SASR 234 [1997] SASC 6271 (25 July 1997)