Miller v Sutherland Shire Council

Development Application :- applicant on development application was agent for undisclosed principal - agent directs that her name be removed from application and in effect resigns as agent - whether principal can elect to be substituted as applicant on development application. KEY ISSUES: Practice and Procedure:- whether period of suspension of a demolition order should be extended.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 78, 78A Environmental Planning and Assessment Regulation 2000, Part 6

CASES CITED: Miller v Sutherland Shire Council [2007] NSWLEC 700

APPLICANT: Mr P Clay, barrister SOLICITORS Haydon Fowler Corbett

FIRST RESPONDENT: Mr P Brown LEGAL REPRESENTATIVES: SOLICITORS Home Wilkinson Lowry (inc Abbott Tout)

SECOND AND THIRD RESPONDENTS: Mr A and Mrs M Fairclough

FOURTH RESPONDENT: N/A

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

EX TEMPORE JUDGMENT 1 HIS HONOUR: On 12 October 2007 I upheld an uncontested challenge to the validity of a development consent: Miller v Sutherland Shire Council [2007] NSWLEC 700. Orders 2 and 3 made on that date provided for the second and third respondents, Mr and Mrs Fairclough, to demolish a jetty on the property at 12 Moombara Crescent Lilli Pilli, suspended for six months to enable them to take steps to regularise a breach of the Environmental Planning and Assessment Act 1979, by among other things, an amendment to the development application so as to ensure that the jetty and any ancillary structures are not on the applicant's property.

2 Now before the Court is a notice of motion by Mr and Mrs Fairclough seeking an extension of the period of suspension and, in effect, an order that they are entitled to be substituted for the fourth respondent as the applicant on the development application. The applicant opposes such relief on discretionary grounds and, alternatively, proposes certain orders. The council adopts a neutral position but, like the applicant, has assisted the Court on legal issues, particularly given that Mr and Mrs Fairclough are legally unrepresented today.

3 The fourth respondent, Catherine Smythe trading as Brook & Byrne Waterfront Constructions, was the applicant on the development application and was served with a copy of the notice of motion but has not appeared today. Her solicitor was a signatory to the consent orders of 12 October 2007

Extension of Period of Suspension of Demolition Order 4 The first issue is whether there should be an extension of the six month period of suspension of the demolition order, which expires in a few days. The applicant submits that there was an unreasonable delay by Mr and Mrs Fairclough in attending to amendment of the development application as contemplated by the orders of 12 October 2007. In October 2007, not long after those orders were made, Mr and Mrs Fairclough communicated with the council and the fourth respondent with the objective of having the development application amended so as to regularise the position as contemplated by the orders.

5 On 19 October 2007 the fourth respondent sent an email to Mr and Mrs Fairclough stating: I refer to the recent matter before the Land and Environment Court and the conditions that I have been advised of that were set down by the court.

We wish to advise that we are unable to continue to act as the applicant in the review of the application.

Further, we request that any documents that have been supplied by Brook & Byrne Waterfront Constructions to you that would be used in the further process, have the name of 'Brook & Byrne Waterfront Constructions' or 'Catherine Smythe' removed or struck out.

Accordingly we have advised Mr Brad Harris, assessment officer, Sutherland Shire Council of same.

No further correspondence will be entered into pertaining to the matter. 6 There was correspondence between Mr and Mrs Fairclough and a council officer, Mr Harris, in the latter half of October and into November 2007. The matter then languished until February of 2008 when Mr and Mrs Fairclough set in train steps to obtain amended plans for an amendment to the development application. On 26 February 2008 they also made an application for a building certificate and drew a cheque to the council for the necessary fee but were told that it could not be dealt with at that time. It was not until March 2008 that they communicated with the Department of Lands, the owner of the waterway, to obtain their consent.

7 In my view, they should have moved more quickly than they did to endeavour to regularise matters, including by attending to the drawing up of any necessary plans. However, it has not been suggested that there has been any prejudice to the other parties by that delay.

8 By late February 2008, if not earlier, Mr Harris of the council had a copy of the email of 19 October 2007 from the fourth respondent set out at [5] above. On 26 February 2008 Mr Fairclough wrote to the fourth respondent stating that Mr Harris would like her to address a letter or email to the council stating that she would like Mr and Mrs Fairclough to be the applicant in processing the redetermination of the development application. He provided her with the email address of Mr Harris.

9 On 5 March 2008 Mr Harris wrote to the fourth respondent recounting her email of 19 October 2007 and the court orders of 12 October 2007. The letter concluded as follows: Council notes the contents of your email to Mr and Mrs Fairclough dated 19 October 2007 and construes this to mean that you consent to and do not object to them lodging further documents in relation to development application number 03/1568 and to council transferring the development application to Mr and Mrs Fairclough. Should council's construction of your email be incorrect and/or you object to council's proposed action, please advise council in writing within seven days from the date of this letter. Should council not receive such written objection from you within this time period, the application will be transferred to Mr and Mrs Fairclough as described above. 10 On 11 March 2008 the fourth respondent wrote an obstructive letter to Mr Harris stating: I refer to your letter dated 5 March 2008 and to the contents therein. Brook & Byrne Waterfront Constructions wishes to advise you as the Assessment Officer of the above development application that we will not be withdrawing as the applicants for the abovementioned development application which is to be reviewed by Sutherland Shire Council.

We are to remain as the legal applicant on behalf of the landowner, being the Department of Lands. We request that all correspondence is to be strictly and solely carried out with Brook & Byrne Waterfront Constructions.

Our objection is in relation to the issue of applicant representation is that legal landowners in this subject application are not Mr and Mrs Fairclough rather than the Department of Lands who have issued owners consent to Brook & Byrne Waterfront Constructions.

We ask that you reply in writing to confirm the above has been accepted... 11 On 12 and 14 March 2008 Mr Fairclough sent emails to Mr Harris emphasising in the later of those communications that the matter was urgent. On 14 March 2008 Mr Harris wrote to Mr Fairclough stating that, after speaking with the council's legal services regarding the March letter from the fourth respondent, his instructions were to send them a letter confirming that the development application will not proceed until a letter was provided from the fourth respondent evidencing that she was willing to transfer the application to their name, and that a letter was also required from the Department of Lands as owner of the waterway indicating that the Department agreed to them becoming the applicant. It was noted that the Department of Land originally gave owners' consent to the fourth respondent. It was said that a letter would be sent off that day confirming this. Such a letter was sent on 14 March 2008.

12 On 18 March 2008 Mr Fairclough sent an email to the fourth respondents briefly recounting the position and the history of the matter, stating the stress that they were experiencing, and concluding with these words: I am respectfully asking or begging if you like one last time to help us comply with the Court Orders and the Council's request to resign as the applicant to both Authorities, namely, the Sutherland Shire Council and the Department of Lands and allow us to stand as ordered by the Court.

Can you please do the right thing and provide your letters of reassignment or resignation as set out above so that we can get on with our lives. 13 The email response from the fourth respondent took issue in strong terms with some of contents of Mr Fairclough's email and, in terms of gross discourtesy, responded as follows to the last two statements which I have quoted: I am not a party to the Court Orders. I was not served with the Court Orders. I don't know what the Court Orders state. This is your fuckin problem brought around by your actions.

I am doing the right thing. I am standing up to liars like you. 14 So far as the evidence discloses, there was no justification for the content or tone of that response. The statement by the fourth respondent that she was not a party to the court orders was incorrect. She was a party to those orders, which were by consent, and her solicitor signed them. She therefore either knew, or must be taken to have known, precisely what they stated.

15 It can be seen that due to the attitude taken by the fourth respondent since March this year a real difficulty has arisen in progressing and finalising this matter as contemplated by the orders of 12 October 2007. In the circumstances, notwithstanding the delay by Mr and Mrs Fairclough, I am prepared to extend the period of suspension of the demolition order for a further reasonable period to permit opportunity for the position to be regularised.

16 The applicant and the council suggest that the period of suspension of the demolition order be a further three months. However, the council is not sure that the matter can be finalised within three months. The Faircloughs, although they are legally unrepresented before the Court, have today spoken by telephone to their solicitor who has suggested six months. They say that they are experiencing financial difficulties such that they have to sell their home which is due to be auctioned in a few days, and they wish to avoid the costs involved in having to appear before the court yet again. There is no prejudice of any significance to the applicant or the council if I were to fix upon an extension of four months. That hopefully will avoid the parties having to appear before me again, assuming the matter can now reach a conclusion in a way that was contemplated originally by the 12 October 2007 orders.

Substitution of Principal for Agent as Applicant on Development Application 17 The next issue is whether Mr and Mrs Fairclough are entitled to be substituted for the fourth respondent as the applicants on the development application in order that the amendment to it may progress. Section 78 of the Environmental Planning and Assessment Act 1979 provides that: "The main steps in the development consent process are as set out in ss 78A-81 and in the regulations made for the purposes of this Part." Section 78A(1) provides that "A person may, subject to the regulations, apply to a consent authority for consent to carry out development". Part 6 of the Environmental Planning and Assessment Regulation 2000 prescribes the procedures relating to development applications. Regulation 49 relevantly provides that: (1) A development application may be made: (a) by the owner of the land to which the development application relates, or (b) by any other person, with the consent in writing of the owner of that land. 18 Regulation 55(1) provides: A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined. 19 The fourth respondent's email of 19 October 2007 to Mr Fairclough unequivocally stated that she was unable to continue to act as the applicant and that her name should be removed or struck out from any documents that had been supplied by her in the process. Her email also stated that Mr Harris of the Sutherland Shire Council had been advised of that position. As I have said, at least by February 2008, if not earlier, Mr Harris had a copy of that email. I consider that the email constituted an amendment or variation of the development application by deleting the fourth respondent's name.

20 On the evidence, the fourth respondent was the agent of undisclosed principals, Mr and Mrs Fairclough, for the purposes of making the development application. Upon an agent ceasing to act in that capacity for any reason, in my view the undisclosed principal can step into the agent's shoes. For example, if a person named in a development application dies before it is determined, and if that person was an agent for an undisclosed principal, the undisclosed principal could require its name to be substituted for the applicant in the development application. It would be unnecessary to lodge a fresh development application. This may be significant where, for example, the statutory scheme has changed since the development application was lodged so as to make the proposed development impermissible on a new development application. The contrary seems to me to be an unlikely legislative intention. The applicant and the council did not submit to the contrary.

21 In my view, the fourth respondent, in her email of 19 October 2007, effectively resigned as the agent for Mr and Mrs Fairclough for the purpose of making the development application, I therefore propose to grant relief to the effect that they are entitled to be substituted for her as the applicants on the development application. The applicant, supported by the Faircloughs, has suggested that that may be affected by a declaration that the development application was lodged with the council by the fourth respondent as agent for and on behalf of Mr and Mrs Fairclough and by an order that the council deal with and determine the development application on the basis that they are the applicants for the development described therein and any amendments thereto according to law. The council's position is neutral. I propose to grant relief in that form.

Other Matters 22 There is also a contest between the applicant and the Faircloughs in relation to an order proposed by the applicant that they pay interest on the costs they were ordered to pay the applicant on the last occasion from the date of that order (12 October 2007). In effect the proposed order would retain for the applicant the benefit of the costs order made on that occasion that the Faircloughs should make a contribution to the applicant's costs in a stated sum to be paid within six months and if that sum was not paid on the due date then the applicant may enforce the payment as a judgment debt and interest shall be payable at the current rate of interest from the date of those orders to the date of payment. The Faircloughs propose that interest should only run from the expiry of six months after that date. I do not accept their proposal. I do not see why the applicant should be adversely affected in interest by the events that have happened. As I have said earlier, they should have moved more expeditiously in advancing the amended development application. I will make the order sought by the applicant.

23 The applicant seeks an order that Mr and Mrs Fairclough pay the applicant's costs of the motion before me. They propose that those costs should be paid by them and the fourth respondent. A difficulty is that there is no suggestion in their notice of motion that any costs order would be sought against the fourth respondent and the fourth respondent is not represented today. It would be a denial of procedural fairness to the fourth respondent in those circumstances to make an order in her absence. The appropriate course is to make the costs order sought by the applicant but to reserve costs as between the Faircloughs and the fourth respondent, including the question of whether the fourth respondent should indemnify or contribute to any costs they have been ordered to pay the applicant.

24 Finally, I would mention that Mr and Mrs Fairclough have informed me that, after obtaining advice from the solicitor who is acting for them on the sale of their property, they consent to an order sought by the applicant that they shall cause conditions of the sale, which shall not merge on completion, in the following terms or terms to that effect: (a) The purchasers shall grant access to the Property to the second and third respondents for the purpose of compliance with the Orders, including in particular Order 2;

(b) The purchasers shall not object to the implementation of and compliance with the Orders and shall make no application to any Court to avoid or prevent compliance with the Orders, including in particular Order 2.

(c) The purchasers have read and by their execution of the agreement warrant that they understand the Orders annexed to the agreement.

25 This term is appropriate to protect the position of the applicant in the event that the property is sold because if the demolition order does take effect (which the Faircloughs are striving to avoid) there has to be some mechanism whereby, without trespassing, they are able to enter the property in order to discharge their demolition obligation.

Orders 26 I make orders in accordance with the short minutes of order dated 7 April 2008 initialled by me and placed with the papers.

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.