Tuesday 11 April 2000
RYDE CITY COUNCIL v ALEXANDER ECHT
AND IRIS TERESA ECHT AND ANOR
JUDGMENT
1 SPIGELMAN CJ: The second respondents, T I and D M Shallita, to whom I will refer as "the owners", owned premises at 36A Melville Street, West Ryde; the first respondents, Alexander Echt and Iris Teresa Echt, to whom I will refer as "the neighbours", owned an adjoining property. Work on the premises of the owners was conducted pursuant to a building approval. It appears that the work was not in accordance with that approval and an amended building application was granted subject to certain conditions pursuant to the provisions of s106 of the Local Government Act 1993.
2 It is the amended conditions which have given rise to these proceedings. The conditions were advised to the neighbours by a letter from the council of 22 April 1997. The neighbours had made submissions as to the conduct of the building works and the proposed amendment of the building approval on the land of the owners.
3 The letter of 22 April 1997 indicated that the following conditions had been imposed. It was conditions numbered 2 and 3 which were the source of later discussions. These conditions were as follows:
"2. Provide a 1.5 metre high permanently fixed trellis and climbing plants along the southern elevation of the rear deck.
3. Provide a 900 mm high lattice screen above the fence height along the southern elevations to prevent loss of privacy from the tool store area and raised area outside the rumpus room rear door."
4 It appears that building works continued, however the works identified in conditions 2 and 3 had not been completed. The owners occupied the extensions which were the subject of the amended plans, notwithstanding the fact that the work in the conditions to which I have referred had not been carried out.
5 By letters of 16 February addressed to the mayor and of 26 February addressed to the general manager of the appellant Council, the neighbours complained of the failure of the owners to carry into effect the conditions which they indicated were of considerable importance to their own privacy and to the amenity of their occupation of their own premises.
6 By letter of 6 March 1998 the manager of building approvals of the appellant Council referred to the earlier correspondence to the mayor of the Council and made certain observations concerning the conduct of the building works including the following:
"The owner of number 36A Melville Street has not requested a final inspection as there are still outstanding works to be completed prior to the application being finalised.
Under the provisions of the Local Government Act, 1993 (as amended), Council has no power to enforce the owners to complete the works within a set period of time.
The owners of number 36A have not given Council a time frame for the completion of the work."
7 The letter went on to note that there were certain outstanding matters, including the privacy screens, and concluded "The owner has indicated that these works will be completed as soon as sufficient funds are available".
8 By letter of 3 March 1998 Dr Dianne Werden, which is the maiden name of D M Shallita, wrote to the council in the following terms:
"I wish to inform you that one of the Council's Officers, Mr Ken Nagle, visited the premises of 36A Melville Street on 2 March 1998. An inspection of the dwelling was made and the amendments were found to be in compliance with the approved Council Plans. Further external work, including screens, will be expected to be completed pending financial viability, within the next six months."
9 A handwritten note on the Council's copy of this letter indicates: "this confirms the last paragraph of my letter dated 6 March 1998". That letter, which had apparently been sent following the conversation between the council officer and the owners, was forwarded prior to the receipt, it appears, of the confirmatory letter dated 3 March 1998 and which was the letter to which I have earlier referred and which concluded with the reference that the owner has indicated that these works will be concluded as soon as funds were available.
10 In response to that letter of 6 March, Blake Dawson Waldron, solicitors acting on behalf of the neighbours, wrote on 13 March 1998 in which, inter alia, they said as follows:
"Whilst it may be that Council has no power to enforce the owners to complete the works within a particular time Council clearly has a power, and we would say an obligation, to prevent the use and occupation of the building until all of the conditions have been observed. The relevant conditions are clearly designed to protect our client's privacy.
Your proposition that Council will allow the occupation and use of these areas without the privacy measures being implemented is startling. If this is correct then the owners could simply continue to use the area as they intend without ever implementing the conditions of consent. This is clearly wrong.
The owners of the premises are in breach of the conditions of approval and Council could, and in our opinion should, immediately take steps to enforce those conditions.
Furthermore the use and occupation of the building prior to its completion in accordance with the plans and specifications (including compliance with conditions) would be a matter requiring a separate approval under section 68 of the Local Government Act (refer the table Part A Item no 6).
Furthermore Council could take action to make an order under Item 30 of section 124 of the Local Government Act. Your understanding that Council can do nothing to enforce the conditions of consent is legally wrong. We strongly urge you to reconsider this."
11 The letter required a response within fourteen days and asked the Council to indicate what steps it intended to take. It said that their clients would commence proceedings pursuant to s674 of the Local Government Act and concluded: "In those proceedings council will be named as a respondent and costs will be sought against it."
12 Subsequent to the receipt of that letter, Council dispatched a letter to the solicitors for the neighbours, on 25 March. It appears that this letter did not arrive at the offices of Blake Dawson Waldron according to factual findings made by his Honour. His Honour did not make a factual finding as to when it was received, although there was some evidence in the affidavit of the Council officer that a document had been received prior to the institution of proceedings. There was no finding of fact and it is not necessary to resolve.
13 The letter of 25 March was, however, in the possession of the solicitors for the neighbours at least at some stage shortly after the institution of the proceedings. That letter was in the following terms:
"Thank you for your letter dated 13 March 1998 in relation to the above property.
Since Council's reply to Mr and Mrs Echt, the owner of number 36A Melville Street has submitted correspondence for Council to consider in relation to the approval.
Therefore, in view of the above correspondence, Council will take no action in relation to orders until July 1998."
14 The proceedings were instituted on 31 March 1998. There were a number of call-overs and negotiations for settlement and, but for the question of costs, it appeared that the parties were agreed as to the substantive orders. By reason of the failure to agree on costs, the Land and Environment Court had to devote its limited resources to the conduct of the proceedings before it and so has this Court. The hearing before Cowdroy AJ, then an acting judge in the Land and Environment Court, proceeded on 18 August 1998 and judgment was delivered by his Honour on 21 August 1998.
15 The jurisdiction of the Land and Environment Court is to be found in s20(2) of the Land and Environment Court Act. It is not necessary to set out the terms of that section. By para 20(2)(c) the Court has jurisdiction to make a declaration with respect to the matters referred to earlier in the section. The standing of the neighbour to take proceedings is clearly set out in s674(1) of the Local Government Act which provides:
"Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act."
16 Pursuant to s676(1) of that Act the Land and Environment Court is given a function in the following terms:
"If the Land and Environment Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach".
17 The jurisdiction of the Land and Environment Court is a jurisdiction concerned with legal error and the enforcement of rights, duties and obligations which arise under "a planning or environmental law". The Local Government Act is such a law. It is not a merits review jurisdiction. This is an important distinction that is sometimes lost but it is of considerable significance when it comes to the assessment of whether or not his Honour committed a legal error in the course of his Honour's judgment.
18 By the time the matter came before his Honour the parties were agreed as to the nature of the amendments that were required to be made to the building works in the sense that certain steps would be taken which both parties agreed would satisfy the neighbours in terms of their privacy concerns. An order to that effect was made by his Honour.
19 His Honour's reasons for judgment sets out the factual background and the circumstances of the institution of the proceedings. His Honour also described the then state of the premises, what he saw and the apparent inadequacy of the works in terms of protection of the privacy of the neighbours. His Honour concluded in that section:
The proposed terms of settlement make it clear that the applicants will be content to have a shade cloth which is more dense, that is to say, with an obfuscation factor of greater than fifty percent to cover the 1.5 metre trellis along the southern elevation of the rear deck to the floor of the rear deck. So far as Council is concerned, the works have been completed in accordance with the approval."
20 His Honour set out the correspondence that had occurred between the Council and the neighbours, to which I have referred above.
21 In particular his Honour referred to the correspondence from the Council to the neighbours of 6 March to which I have referred and the letter of the Council to Blake Dawson Waldron for the neighbours dated 25 March.
22 His Honour concluded as follows:
"The Council elected to treat such letter as a satisfactory explanation and informed the applicants that it would take no action until July 1998. Such a response was unsatisfactory taking into consideration the fact that a condition remained outstanding which had been specifically imposed for the benefit of an adjoining household. The Council must have shared the applicants' concern since it imposed the very condition which was unfulfilled. Council had a responsibility to ensure that its approvals were carried into execution within a reasonable period where no specific time limit had been imposed. To this extent the building approval was deficient. However, this circumstance did not prevent the Council from requiring the second respondents to fulfil the conditions. The Council was on notice that the provision of a screen was of critical importance to the applicants. The appropriate course was for Council to issue an order under Item 30 of s124 of the Local Government Act, as had been suggested in the applicants' solicitor's letter dated 13 March 1998.
The lack of action by the Council obviously inflamed a situation which was causing great consternation to the applicants, who regarded the Council as failing in its duty. There is no doubt that the Council, as the approving authority, has the responsibility to ensure that the requirements of the Environmental Planning and Assessment Act 1979, and of any approval granted thereto, are fulfilled (see Peek v New South Wales Egg Corporation [1985-1986] 6 NSWLR 1; Attorney General v Harris [1961] 1 QB 74 at p 94; Warringah Shire Council v Sedevcic (1987) 63 LGRA 361). In the circumstances I consider that the applicants were entitled to approach this Court for relief pursuant to s123 of the Environmental Planning and Assessment Act."
23 The statutory references by his Honour are in error. The appropriate legislation is the Local Government Act and the equivalent of s123 of the Environmental Planning and Assessment Act is s674, invoked by the neighbours in the present proceedings.
24 When one reads the whole of his Honour's reasons they appear to me to be more appropriate for a merits review than a review restricted to some form of legal error. The only references which are capable of suggesting a form of legal error are the two references that his Honour made to the council having "a responsibility to ensure" that its approvals were carried into execution and that the requirements of the Local Government Act are met. Nevertheless it does not appear to me that his Honour approached the matter in a form appropriate to the jurisdiction that his Honour was exercising; rather his Honour gave reasons for a merits review.
25 His Honour relied on three authorities to establish the "responsibility" to which he referred. In my opinion those authorities do not support the existence of a responsibility which sounds in the form of a legal duty. The word "responsibility" itself is a word of somewhat allusive and, perhaps, sentimental meaning in this context. It does not necessarily carry any form of obligation enforceable by orders in the nature of mandamus or equitable orders. The three authorities do not support the existence of a responsibility of a character that can be enforced in the manner his Honour purported to do.
26 The first case is Peek v New South Wales Egg Corporation (1986) 6 NSWLR 1. It appears that the passage in the judgment to which his Honour was referring is that in the judgment of the then President of this Court, Kirby P, who said at pp5-6:
"I consider that, where the legislature has created a statutory corporation, with particular responsibilities designed to protect the legislature's conception of the public interest, such corporation will now share with the Attorney-General the requisite standing in the courts, for the purpose of furthering or defending its statutory function. There is little doubt that Parliament and the public would expect a statutory corporation, such as the respondent, to take all lawful steps necessary to secure the objects for which the corporation has been created. This is so, both to uphold the reasons for which Parliament created the body and to protect those who conduct their operations compliant with the law in the administration of which the corporation is concerned."
27 Whilst this reasoning may support the existence of some form of responsibility in an allusive sense it does not support anything in the nature of a legal obligation to act on statutory power which is enforceable at the instance of a third party.
28 The second case to which his Honour referred, namely Attorney General v Harris, is also a case involving whether it was appropriate to grant an injunction to restrain acts otherwise subject to the scheme. The passage at p94 to which I believe Cowdroy AJ was referring may have been the following:
"… it is, on the other hand, highly undesirable that some member of the public should with impunity flout the law and deliberately continue acts forbidden by Parliament."
29 Again I do not see anything in this authority in support of a an obligation that can be enforced in the manner in which his Honour enforced it.
30 The third case is Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335. In that case the Court of Appeal was considering whether a judge of the Land and Environment Court had made an error in exercising his discretion to refuse an injunction under s124 of the Environmental Planning and Assessment Act. The relevant portion of the judgment may be found at p339 of the judgment of Kirby P and also at 342. In the latter passage his Honour said:
"It is important to conclude by pointing out that that discretion is itself part of the statutory scheme. In this sense, the exercise of the discretion should not be seen as an illegitimate interference by judges in the even-handed application of planning law which local government authority have the responsibility of enforcing."
31 Again the word "responsibility" is used in the allusive sense to which I have referred.
32 In that case at p346 Mahoney JA was paraphrasing an argument put by counsel to the following effect:
"He submitted that, if no injunction went, the present case would be seen as warranting refusal in other cases and that there would be administrative difficulties for officers of local councils whose duty is to assess whether the court would grant an injunction against particular contraventions of the planning law and so to decide whether to pursue in the courts breaches of it. And, he submitted correctly, those concerned with predicting what courts will do are apt to make their predictions from what courts have done in particular factual situations.
I am conscious of the duties which a planning regime imposes upon a local council. I made reference to this in Blacktown Municipal Council v Friend (1974) 29 LGRA 192."
33 In that case, at 200, his Honour had referred to duties of the Council to enforce legislation. However, his Honour did so in a context where the issue was whether or not the Court should exercise its discretion to grant an injunction at the behest of a Council which had been guilty of delay and acquiescence in the non-conforming uses. His Honour made similar observations in another case, South Sydney Municipal Council v Hadzinickitas (1977) 35 LGRA 159 at 163. In all of these cases his Honour was using, the word "duty" in the same allusive sense as I have referred the word "responsibility" being used. He was not using it in the sense of an obligation which can be enforced against the repository of a statutory power.
34 In this appeal his Honour's judgment was sought to be upheld on the basis of three legal errors which it was submitted to this Court the Council had committed and which would justify the grant of the relief which his Honour gave.
35 The first was that the Council had misconstrued its Act and had in fact had the opinion that it had no power to take any relevant steps. This was based on the passage in the letter of 6 March 1998 which I have already set out and which I repeat:
"Under the provisions of the Local Government Act, 1993 (as amended), Council has no power to enforce the owners to complete the works within a set period of time."
36 Whatever the Council may have meant by the words "set period of time", it did not appear at the relevant time to have been operating under any misapprehension in this regard.
37 The letter from the solicitors for the neighbours dated 13 March 1998 pointed out the Council did have power and, it submitted, an obligation to take steps. It specifically drew attention to the power of the council to make an order under s124 of the Local Government Act, specifically Item 30 of the table to that section.
38 The letter from the Council of 25 March, which represented the relevant state of mind of the Council at the time appropriate for determination of this issue, does not reiterate the assertion contained in the letter of 6 March 1998. Indeed, it is contrary to that assertion. It says:
"Council will take no action in relation to orders until July 1998."
39 In the context of this correspondence the reference to "orders" is a reference to the suggestions made by the neighbours' solicitor in their letter of 13 March 1998. Far from continuing a misconception as to a statutory power, if it ever had such a misconception, Council by its letter of 25 March was plainly stating that it accepted it had relevant powers but was deciding not to exercise them at that time.
40 The second basis on which it was argued that the Council committed a relevant error was that of unreasonableness in the Wednesbury sense. It was submitted that at the time that it came to write the letter of 25 March 1998 the violation of its conditions was flagrant and that the only reasonable option available to the Council was to take steps to enforce the conditions of its approval.
41 It is plain that the Council had turned its mind to the issue. The letter of 3 March 1998 from the owners to the Council indicated that the further external work would be expected to be completed "within the next six months." In its letter of 25 March 1998 the Council did not accept the period of six months which the owner had sought, rather it indicated that it would review the position in three months. Plainly it had turned its mind to the issue. I am not prepared to say that the Council was not justified in taking this course. As I will show in a moment, the steps that are required for an order under s124 are quite laborious and involve the Council in considerable time and expense on a timetable which would probably take three months or longer.
42 The submission was put that the Council did not give evidence as to its particular state of mind and what it took into account in making the decision reflected in the letter of 25 March 1998. Council had no onus of proof in this respect. It called the relevant officer. He was not cross-examined in a relevant respect. Insofar as the neighbours had a duty to show that the Council was acting unreasonably, it failed to pursue the relevant factual disputation, notwithstanding the fact that it had available for cross-examination a representative of the Council. There is no proper basis in my opinion for a finding that the Council acted so unreasonably in deciding not to enforce the conditions in the manner for which the neighbours then contended and now contend.
43 I will come to the structure of the powers under which the Council could exercise presently with respect to the third manner in which the neighbours put their case in this Court. However, the Wednesbury unreasonableness ground is not made out.
44 The third basis that was put was that the Council was under a duty to act to enforce the law and, relevantly, its own conditions. In the written submissions for the neighbours the duty to enforce the law was put in very wide ranging terms. It was submitted that the High Court's decision in Bateman's Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 did in some respects "presages a new course in public law". It was submitted that although the case was concerned with standing, it recognised a public interest in the observance by statutory authorities of the law. It was said that underlying this principle was the duty to enforce the law, whether by the police in relation to the ordinary criminal law, or by regulators in relation to permits, approvals, orders and certificates and the like, extending to the powers being exercised by the Council in this case.
45 In these submissions, no particular provision of the legislative scheme was pointed to as grounding any such wide ranging duty, nor do I believe there is any such wide ranging duty known to the law. In my opinion the observations of McHugh J in Bateman's Bay, particularly at pars 83 to 86, are accurate and pertinent. His Honour there sets out a number of reasons why statutory bodies and those exercising the prerogatives of the Crown, which have responsibility for the administration of justice and the enforcement of the law, may choose not to enforce the law in particular circumstances or at all. In my opinion his Honour's reasoning is correct and it tells against any wide-ranging duty of the character for which counsel for the neighbours contended in this Court.
46 Counsel also referred to two other provisions, first s51 of the Constitution Act 1902 which relevantly uses the terminology of "responsibility" when it provides in 51(1):
"There shall continue to be a system of local government for the State under which duly elected or duly appointed local government bodies are constituted with responsibilities for acting for the better government of those parts of the State that are from time to time subject to that system of local government."
47 Counsel also drew attention to s7(d) of the Local Government Act which outlines the purposes of that Act to include as follows:
"The purposes of this Act are as follows
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