Those Best Placed Pty Ltd v Tweed Shire Council

Those Best Placed Pty Ltd v Tweed Shire Council - [2010] NSWLEC 83 - NSWLEC 2010 case summary — Zoe

[18]

110 The Points of Claim group these three headings together and address them at pp 60-98. 111 Under the subheading "Failure to Provide Proper, Genuine and Realistic Consideration or Due Process", the Points of Claim at pp 60-93 make submissions under numerous sub-headings including (but not limited to) those referring to financial hardship, improper delegation, irrationality, mandatory statutory considerations, manifest unreasonableness, improper purpose, procedural fairness, bias and ultra vires. Then the Points of Claim at pp 93-98 allege errors of law described as denial of procedural fairness and ultra vires of numerous types. 112 This section of the Points of Claim is very difficult to understand, if not incomprehensible. In my view, no reasonable cause of action is disclosed in these respects. In relation to alleged improper purpose, as I understood Mr Crowther, at one point of submissions he asserted that the proposed bathroom in the shed would not cause any increase in the hydraulic loading of the existing septic system and, therefore, that the improper purpose of the council was to require an upgrading program at the expense of septic tank owners; and at another point he asserted that council's approval of his s68A LG Act application was in order to conceal in his case that the council generally had an improper purpose to require septic tank owners to upgrade at their expense. There is nothing before me to reasonably support Mr Crowther's assertions of improper purpose. Indeed, his assertions are difficult to reconcile with council's refusal of the development application, which is the only basis on which council could have made a demand by way of a condition for such expenditure in his case. Further, there is no council decision requiring such an upgrade at a septic tank owner's consent upon which the Court can adjudicate as to its validity. 113 The remedies sought in the Points of Claim at pp 97-98 appears to require the council to determine "Further DA1" as a precondition (the determination of the claims for existing use rights being a further precondition) to a determination of DA 08/0966 and SEP 08/0087. Neither alleged "precondition" relates to a development application. DA 08/0966 and SEP 08/0087 have both been lawfully determined. No appeals were lodged. SEP 08/0087 was resolved in favour of conditional approval. These claims are insupportable.

[25]

121 Under these headings in the Summons, there appears a statement that "In the event that the Court's judgment in this matter concludes that the Respondent has no lawful entitlement to require an Application for Approval to operate OSMS to undertake an AS 1547/2000 as a precondition to that Application, the Plaintiffs note that the Respondent has recently amended the Application Form for that Application for 'Approval to Operate OSMS' to make an AS 1547/2000 report mandatory. Subject to the judgment of the court in the above matter, the Plaintiffs seek further orders pursuant to s 65 of the Supreme Court Act 1970, which require the respondent to amend that Application Form to provide the Applicant with Notice that the provision of such a Report is elective, not prescriptive, and may mandate that the subject OSMS may require upgrade, and that by providing the Report they may be subject to financial consequences of up to $20,000". 122 The Points of Claim at pp 46-53 deal with these matters under the heading "Alter/Modify and Approval". These pages concern the council's request for information to be supplied to it so as to enable it to determine the development application. They attempt to elevate a simple and proper request for information (in the form of a report by a qualified person, which might, of course, have indicated either that the existing OSMS was in fact adequate or that it was not) into a "decision" which evidenced a plot by the council to oblige Mr Crowther and Ms Schultz to carry out, at their expense, some unspecified upgrading work on the existing tank. Mr Crowther makes it clear at pp 50-51 of the Points of Claim that he still refuses to supply the report; that if the council wants the report it should get it itself, at its own expense; and that if the Court "reverts" the decision to refuse the development application to the respondent and it still wants an upgrade done, it will be done, but only if the council pays "its fair share". No reasonable cause of action is disclosed. Moreover, the relief sought is in a form which bears no resemblance to any relief in the Court's power to give. (xiv) Further DA 1, (xv) Further DA 2, (xvi) Submission ESD, (xvii) Submission 96, (xviii) Incompetent 1, (xix) Incompetent 2 123 Mr Crowther's affidavit says that "Further DA1" is the decision to make a "deemed rejection" of his s 80A EPA Act notice of modification of existing use rights dated 9 December 2008 (see [34] above); "Further DA 2" is the decision to make a deemed rejection of his application to modify pursuant to s 96 (see [39] above); "Submission ESD" is the decision to give no consideration to his submissions in support of 08/0966, SEP 08/0087 etc; "Submission 96" is the decision to give no consideration pursuant to s 79C(1)(d) of the EPA Act to his submission in support of Further DA 2; "Incompetent 1" is the decision that Further DA 1 was incompetent; and "Incompetent 2" is the decision that Further DA 2 was incompetent.

[33]

134 Lest it has to be entertained, I will make the following observations. Mr Crowther alleged in that affidavit that the council letter to him of 22 December 2008 giving notice of determination of DA 08/0966 (see [42] above) was unlawful because it did not advise that the applicant had the right to request a review of the determination under s 82A of the EPA Act, as required by s 81 and clause 100(1)(c1) of the EPA Regulation. He submitted in the affidavit that the time for appealing under s 97 and for requesting a review of the determination under s 82A has not commenced to run. This may be based on his evidence that he did not receive the notice of determination of 22 December 2008 addressed to the applicant for approval, The Shed Company. That notice (or at least the first page of it) is in evidence. It states that there is a right of appeal under s 97 although it does not refer to a right of review under s 82A. Section 81(1) provides that the consent authority must "in accordance with the regulations" notify its determination of a development application to the applicant. Clause 100(1) of the EPA Regulation prescribes what must be included in a notice of determination, including whether the applicant has the right to request a review of the determination under s 82A and whether the Act gives a right of appeal against the determination to the applicant: cl 100(1)(c1) and (j). A notice of determination must be sent to the applicant within 14 days after the date of determination but failure to send the notice within that period does not affect the validity of the notice: cl 102. An applicant who is dissatisfied with the determination may appeal to this Court within 12 months after the date on which the applicant received notice, given in accordance with the regulations, of the determination (or the date on which the application is taken to have been determined under s 82(1)). A determination cannot be reviewed after the time limited for making an appeal under s 97 expires if no such appeal is made against the determination: s 82A(2A). In the present case, if the applicant for development approval, The Shed Company, did not receive notice of determination of the development application given in accordance with the regulations, the time for appealing under s 97 or for applying for a review under s 82A may not have commenced to run. However, that does not establish any error of law capable of giving rise to relief as claimed in these proceedings. ORDERS 135 In my opinion, no reasonable cause of action is disclosed. The proceedings should be summarily dismissed, in the interests of all parties, before the associated costs become unmanageable. 136 The orders of the Court are as follows: 1. The proceedings are dismissed. 2. The applicants are to pay the respondent's costs. 3. The exhibits may be returned.

Parties

Applicant/Plaintiff:

Those Best Placed Pty Ltd

Respondent/Defendant:

Tweed Shire Council

Cases Cited (5)

CITATION : Those Best Placed Pty Ltd v Tweed Shire Council [2010] NSWLEC 83

Agar v Hyde [2000] HCA 41, 201 CLR 552 CASES CITED: McGuirk v The University of New South Wales [2009] NSWSC 1424 Waverley Council v Hairis Architects [2002] NSWLEC 180, 123 LGERA 100 Webster v Lampard [1993] HCA 57, 177 CLR 598

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)." 3 A very clear case is required before a litigant is prevented from pleading a case upon the basis that no reasonable cause of action is disclosed. There has to be a high degree of certainty about the outcome of the proceedings if it were allowed to go to trial in the ordinary way. The test is whether the material before the Court demonstrates that the action should not be permitted to go to trial in the ordinary way because it is apparent that it must fail. See Webster v Lampard [1993] HCA 57, 177 CLR 598 at 602-603; Agar v Hyde [2000] HCA 41, 201 CLR 552 at [56]; McGuirk v The University of New South Wales [2009] NSWSC 1424 at [37]-[39]. 4 The proceedings have been conducted, and the applicants were represented at the hearing, by Mr Andrew Crowther who is the managing director of Those Best Placed Pty Ltd and the partner of Ms Schultz. He was the driving force in the pre-litigation communications with the council. He signed the Summons and the Points of Claim (as managing director of Those Best Placed Pty Ltd). He has asserted and tendered documents to the effect that Those Best Placed Pty Ltd is acting as agent for himself and Ms Schultz.

And we advise Tweed Shire Council that our On-Site Sewerage Management System is an asset which provides a service to the community of Tweed Shire in protecting water quality and public health, and that the users of that service should pay the full life cycle costs of providing that asset, which cost is an environmental cost pursuant to the Principles of Ecologically Sustainable Development". 37 Clause 97 of the EPA Regulation provides the means for giving effect to a condition of development consent imposed pursuant to s 80A(1)(b) and (5) of the EPA Act, by providing that the modification or surrender of an existing development consent or existing use right is achieved by delivery of a notice in accordance with cl 97(2): Waverley Council v Hairis Architects [2002] NSWLEC 180, 123 LGERA 100 at [26]. Section 80A relevantly provides: " 80A Imposition of conditions

[2009] NSWSC 1424

Cited By (3)

Blue Mountains Conservation Society Inc v Delta Electricity

Those Best Placed Pty Ltd v Tweed Shire Council

Van Tonder v Hodgkinson

At a glance

Court

Decision date

Before

Source

Judgment (34 paragraphs)

Parties

Cases Cited (5)

Cited By (3)