Murcia Holdings Pty Ltd & Ors v City of Nedlands & Ors [1999] WASC 241

Murcia Holdings Pty Ltd & Ors v City of Nedlands & Ors [1999] WASC 241 | Case summary | Zoe

[263]

112 I will now deal with the issue of reliance. It is apparent from Mr Day's evidence that he was experienced in obtaining amendments to town planning schemes. He knew it was for the Council, not Mrs Holdaway, to make a judgment as to whether an amendment should be finally approved and he also knew that the final decision as to whether a scheme should be amended was not for the Council, but for a superior governmental planning authority. Under those circumstances, it is quite unlikely he would have understood any advice he received from Mrs Holdaway as meaning that the Murcia Holdings application would be approved or that he passed on an assurance in such unqualified terms to Mr Telfer. Mr Telfer is a professional property developer with 15 years' experience in developing properties in the western suburbs. He gave evidence that since 1992 he had developed 15 properties, nine of which were in the City of Nedlands. He had made two previous applications for scheme amendments to accommodate senior housing developments. These applications had been successful and profitable. He had obtained a copy of the seniors' housing policy in 1993 or 1994 and admitted that he knew the main provisions of the policy. He accepted, under cross-examination, that the policy called for value-judgments to be made in considering whether an application pursuant to the policy should be allowed. He knew it was for the Council to make the evaluation. He accepted that Mrs Holdaway could not guarantee that any application would be approved and, to the extent that she did give affirmative advice, it could only be understood as amounting to a statement of her belief on the prospects of success of the application. See transcript 446B to 448D. Mr Telfer knew that the procedure with respect to an application for an amendment included advertising and public submissions. He knew of the possibility that there might be objections and he must have known (I think he actually did know) that objections needed to be considered by the Council. See his evidence at 434B to 436A.

[274]

120 The plaintiff does not put its case on the basis that the defendants are liable for breach of statutory duty in the sense that the statute itself gave rise to a civil remedy for its breach and I do not think it was open to the plaintiff to do so. Whether a statutory duty gives rise to a private cause of action is a question of construction. O'Connor v S P Bray Ltd (supra) at 477; R v Deputy Governor of Parkhurst Prison, Ex parte Hague [1992] 1 AC 58; Sovar v Henry Lane Pty Ltd [1967] HCA 31; (1967) 116 CLR 397 per Kitto J at 405. It is a matter of ascertaining, upon a proper construction of the legislation, whether it was the intention of the legislature to confer a civil remedy in the event of breach of duty. I can see nothing in s 7(2) of the Town Planning and Development Act or in the applicable regulations, or in the context that is relevant to the construction of the section and the regulations, which would support the conclusion that the legislature intended to confer a right of action on individual landowners whose commercial interests may have suffered through the failure of a municipality to make or amend a town planning scheme or to comply with the obligatory formalities in respect of the making or amendment of a town planning scheme which a municipality has resolved to initiate. The object of the legislative provisions authorising municipalities to make and amend town planning schemes is orderly and proper planning within the municipal district. The scope and purpose of the legislation does not include the protection or advancement of the commercial interests of individual landowners or classes of landowners or other classes of persons. The particular provisions of s 7(2) and of reg 15, reg 17 and reg 18 requiring a municipality which has embarked upon a scheme amendment to take certain steps are likewise not for the purpose of advancing or protecting the commercial interests of those who may be affected by the making of a scheme or by the amendment of a scheme. The provisions of the Act requiring the municipality to submit amendments to the Minister and the provisions of the regulations stipulating the times within which this must be done are "regulatory directions only": Becker v Home Office [1972] 2 QB 407 per Denning MR at 418H. Even if they are not observed, they do not confer a civil remedy. As was pointed out in O'Connor v S P Bray Ltd (supra) per Dixon J at 477 - 478, "... an interpretation of the statute, according to ordinary canons of construction, will rarely yield a necessary implication positively giving a civil remedy". In my opinion, this legislation does not do so.

[340]

151 In the light of the statements of principle that have already been discussed, as to the elements of the action on the case for misfeasance in public office, it seems to me inappropriate to treat this exercise of voting power as tortious. Once again, it implies that there was a duty to the plaintiffs to exercise the voting power in a different manner and no duty of that kind has been made out. Also, there is the conceptual difficulty that the casting of the vote was not, in itself, an act which was beyond the power of the councillor concerned. There is, I think, a recognition of this in the pleading by the introduction into par 24(a) of the allegation that, in so voting, the mayor and councillors "did not act in good faith". As I understood Mr Kyle's submissions on this point, they really came down to the proposition that, in voting as they did, the councillors and the mayor acted maliciously and, therefore, beyond power. I think that to establish abuse of office in the casting of a vote, it would have to be shown, at the very least, that the person casting the vote did so maliciously in the sense of an intention to injure (Mengel per Brennan J at 356) or with actual knowledge that there was no power to do that which was voted for and reckless indifference to the consequences. Assuming that liability will attach to the act of voting if the person who cast the vote knows that, in so doing, he or she will cause the corporate body to do an act which is beyond power, I am not satisfied that any of the councillors or the mayor had that actual knowledge. I am not persuaded that any of the individual defendants - none of whom were lawyers - actually knew that the City was acting beyond its powers in not complying with the requirements of reg 21(2). I do not believe they thought of the matter in that way. For most of the time, including on 6 August 1996, they were thoroughly confused as to what were the powers and duties of the City with respect to these particular scheme amendments. I have attempted to detail the evolution of the realisation on the part of the Council that the Council was powerless to stop the amendments. As late as October 1996, the Council's legal adviser, Mr McLeod, was advising the Council that there was a reasonable basis for arguing that the amendments in question had not been dealt with by the Minister in accordance with the law and that his approval of the amendments was "not effective". Mr McLeod is a specialist in the field of local government law. It was Mr McLeod who suggested that his opinion be tested by obtaining the opinion of Mr Martin QC. The Council accepted this advice. That was not the behaviour of people who knew the score, but were indifferent to the duties of their office. And when the opinion of Mr Martin QC was received, they fairly promptly followed the advice contained in it. It is a case to which the words of Brennan J in Mengel are apt. He said at 358:

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Murcia Holdings Pty Ltd & Ors v City of Nedlands & Ors [1999] WASC 241 (2 December 1999)

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