Those Best Placed Pty Ltd v Tweed Shire Council

92 The capacity of the existing septic tank to handle potential additional waste generated by the proposed development was a highly relevant matter for the council to consider at the development application assessment stage. If the existing tank were shown to be inadequate, the council would have to decide whether to approve the new bathroom facilities in the shed or to approve them conditionally upon the upgrade of the septic tank. This is not the kind of matter which could or should be left to the construction certificate stage. A certifier could not impose a condition requiring upgrading of sewer management works. If the existing system needed to be upgraded, the applicant would need a s 68 approval, as the council advised, to modify or alter it appropriately. 93 In my opinion, cl 54 empowered the council to request the information it requested from Mr Crowther. The development application was ultimately refused because he refused to provide it. At that point a right of appeal arose under s 97 of the EPA Act. Mr Crowther was aware of this (he was informed in the notice of determination) but did not avail himself of that right. That is the end of the matter. The council's actions were orthodox and no breach of the Act is demonstrated.

(iv) FAIL 82 LGA 94 In relation to this heading in paragraph 4 of the Summons, Mr Crowther says that there was a "decision" by the council to make a deemed determination to reject his s 82 LG Act objection of 7 November 2008 (see [28] above). I note that on 20 November 2008 the council replied stating correctly that the s 82 application was irrelevant to the assessment of the development application: see [32] above. Section 82 is set out at [29] above.

95 Under this heading the Summons says: "Provided for in the event the Court Orders the impugned Decisions and Determinations to revert to the Respondent for Re Determination and Determination of FURTHER DA1 as a precondition to the exercise of the Respondents powers in Determining DA 08/0966 and SEP 08/0087." 96 I do not propose to make any such "revert" order. 97 The Points of Claim at p 33 and following deal with this aspect under the heading "Fail 82 LGA, Fail 99 LGA, Fail 100 LGA, Fail 176 LGA". These allegations are placed together, apparently on the basis that they all relate to the same subject matter.

98 Under this heading in the Points of Claim in subparagraph (1) there is quoted Mr Crowther's letter to the council of 13 October 2008 (referred to at [23] above) in which he stated that the undertaking of an OSM Compliance Report would prevent the continuance of his existing use, apparently because of his apprehension that if he provided the report he would be required to update the existing sewage system to comply with AS 1547/2000 as a condition of development consent.

99 Section 82(1) of the LG Act provides for the applicant for an approval under s 68 to lodge an objection either to the effect that any adopted local policy or relevant regulations "do not make appropriate provision with respect to" the activity for which approval was sought, or that compliance with the regulations or policy is "unreasonable or unnecessary in the particular circumstances of the case". Section 82(3) and (3A) allow a council to make a direction effectively dispensing with the application of an adopted local policy or (with the Director General's concurrence) to dispense with or adjust the application of the regulations in question. In either case, the council must be satisfied that the objection is "well founded".

100 Mr Crowther's letter of 13 October 2008 was not an objection under s 82. In the first place, it preceded any application for approval under the LG Act by two days, so at the time it was written he was not an applicant for approval. Secondly, there was no local policy adopted under Part 3 in existence, nor any relevant regulations to which the objection could or was expressed to apply. Thirdly, the letter was intended to persuade the council to withdraw its request for information because he wrote that it was "almost certain that my existing OSM system" did not comply with the relevant Australian Standard, and that the preparation of a report on compliance would prevent the continuance of an existing use - that is, the septic tank. Those submissions had nothing to do with s 82. The second of these reasons applies also to the s 82 objection of 7 November 2008. Arguable failure to comply with s 82 is not demonstrated.

101 As for the reference to "Fail 99 LGA" in the Points of Claim, s 99 of the LG Act is a machinery provision which obliges the council to give an applicant notice of determination of the application. The Points of Claim do not explain how this section is said to be breached. Leaving aside the question of the status of the letter of 13 October 2008, the fact is that the council did (much later, on 2 November 2009) give the s 68 SEP 08/0087 approval, and gave notice of its determination. It had not previously refused this application, but had purported to "cancel" it and had refunded the fee, on the basis of its belief that the application related to the continued operation of the OSM system subsequent to the installation of the new bathroom, which it had refused, and so was devoid of subject matter. As Mr Crowther has the approval he sought, the s 99 argument is pointless. In any event, there were appeal rights which Mr Crowther chose not to invoke.

102 As for the reference to "Fail 100 LGA" in the Points of Claim, s 100 of the LG Act affords an applicant a right to request a review of a decision, as long as the request is made within 28 days of the decision and the approved fee, if any, is paid. In the present case the relevance of this provision is unclear. A request for review was made albeit not ostensibly under s 100 and not relative to the s 68 application, but citing "DA 08/0966" and "s 82A" of the EPA Act: see [45] above. The council appears to have treated this application as including a s 100 application, and approval of the s 68 SEP 08/0087 application was ultimately granted. In the meantime, no attempt was made by the council to prosecute and Mr Crowther was fully protected by cl 47(2), which allowed him lawfully to continue to operate the OSM system "until the application is finally determined": see [75] above. No reviewable error is demonstrated.

103 As for the reference to "Fail 176 LGA" in the Points of Claim, s 176 of the LG Act is the provision which affords a right of appeal within a 12 month period if an applicant is dissatisfied with respect to the applicant's application for approval, including an application under s 68. There was no such appeal. The Points of Claim do not explain what breach (if breach there could be) of the Act is alleged. The facts do not demonstrate any breach.

104 Subparagraph (2) at pp 36-38 of the Points of Claim contains confusing allegations of denial of procedural fairness and ultra vires. It is clear that no remedy is available to the applicants on any basis there sought to be explained.

105 Subparagraph (3) at pp 38-43 of the Points of Claim appears to be pleaded upon the basis that the alleged breaches of ss 82, 99, 100 and 176 of the LG Act have resulted in financial loss to Mr Crowther (who, however, is not named as an applicant) Ms Schultz (who is) and the company (which is, but which does not appear to have ever conducted any business with the council).

106 Subparagraph (3)(b) discloses that the proposed erection of the shed (and its bathroom) was not for residential purposes and that Mr Crowther (and the applicants) intended to use it for industrial purposes (recycling pallets), which "enterprise was obviated by the rejection of DA 08/0966". The council was not informed of this intended change of use nor asked for development consent for it. It cannot be assumed that the "enterprise" was one which could ever have been lawfully conducted. Subparagraph 3(b) then says that Mr Crowther decided to "build a business in Ecologically Sustainable Development, in order that [he] could better defend the Plaintiffs against the Respondent's allegedly improper purposes and virtually absolute powers and discretions". From what follows, it does not appear that Those Best Placed Pty Ltd has ever traded or had any revenue, nor has it been shown to have foregone any revenue. In any event, only "expenses" are recoverable under s 179 of the LG Act, and no "expenses" have been incurred by Mr Crowther or Ms Schultz. "Expenses" incurred by Those Best Placed Pty Ltd are not recoverable as the company was never "an applicant for approval". 107 This group of claims does not disclose any cause of action.

(v) DA 08/0966, (vi) SEP 08/0087, (xiii) Fail 97 EPA Regs 108 Under these headings, paragraph 4 of the Summons says: "The Plaintiffs note the provisions of s 69(1) Supreme Court Act 1970, and seek the remedies at law provided by that Sub Section (1), in substitution for the prerogative writs, including Writs of Mandamus and Certiorari.

We seek Orders from the Court pursuant to the Court's jurisdiction in Class Four matters, according to the provision of s 20(4) Land and Environment Court Act 1979, and s 65 and s 69 Supreme Court Act 1970." 109 Mr Crowther says in his affidavit that these headings refer to, respectively, the decision to refuse DA 08/0966, the decision to "cancel" SEP 08/0087, and the "decision" to "fail to notify" pursuant to clause 97 of the EPA Regulation "the council's intent to modify/extinguish EUR OSMS".

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.

(vii) EUR Land, (viii) EUR Building, (ix) EUR OSMS 114 "EUR" is an acronym for existing use rights. In relation to these headings in the Summons, Mr Crowther says in his affidavit that they refer to a "decision" by the council " to fail to provide consent for existing use rights" for, respectively, the Land, his home and the existing OSM system. 115 Under these headings, paragraph 4 of the Summons at p 5 says that the plaintiffs seek the following orders to restore their property rights: "(a) Order in the nature of Writ of Certiorari to quash the Deemed Rejection of the Plaintiffs Property Rights occasioned by the Respondent's failure to Determine the Plaintiff's claims for existing use rights in their land, building and OSMS which rights are provided for by Division 10 of Part 4 EPA, and are subject to the consent of the consent authority which has not been provided (b) Order the Respondent to Fulfil a Duty in the Nature of Writs of Mandamus to give proper, genuine and realistic consideration to the claims of existing use rights for the subject land, building and OSMS and Determine them by either providing the consent of the Consent Authority to those uses, or by proving those uses do not exist, or have been abandoned".

116 In the Points of Claim at pp 44-46 there appears the heading "EUR Land, EUR Building, EUR OSMS". This group of claims seems to rest on an assumption by Mr Crowther that the council is under a statutory duty (the source of which is not particularised) to enter into formal consideration of claims of "existing use", even in a context in which such matters are not relevant to the determination of any actual application for planning approval.

117 Whilst the council has confirmed to Mr Crowther that his premises have "existing use rights", the rights can only be those arising under s 109 of the EPA Act as the use of the premises as a dwelling-house is permissible in the zone.

118 The council did not respond, and did not have to respond, to the attempt by Mr Crowther to have it confirm that the existing OSM system had "existing use rights". Mr Crowther's understanding of the law relating to continuing use rights is flawed. Such rights relate to land use, not to particular structures or works (except to the extent that the Act limits enlargements etc and rebuilding). In the context of a septic tank, the relevant right is to use the land for residential purposes, the disposal of effluent being ancillary or incidental to that use. That right does not entitle the landholder to retain a particular tank which, because of a change in volumes of waste treated, is inadequate to afford healthy conditions on the land.

119 Mr Crowther says in the Summons at p 5 and the Points of Claim at p 45 (presumably on his own behalf and on behalf of Ms Schultz, but not on behalf of the corporate applicant) that "The Plaintiffs wish to have our property rights restored". But no property rights have been removed, altered or impacted upon. The claim is hopeless.

(x) Alter/Modify, (xi) Approval 120 In relation to these headings in the summons, Mr Crowther says in his affidavit that they respectively refer to (a) a "decision" to "imply an increased hydraulic loading arising from DA 08/0966 by application of formulae in the Plumbing and Drainage Code of Practice, pursuant to Regulation 16 and Part 2 of Schedule 1 of the Local Government (General) Regulation"; and (b) the "decision" by the council 'to require an AS1547/2000 Report in relation to DA 08/0966' pursuant to the same Code of Practice, Regulation and Part. At the hearing I was not taken to the said Code of Practice and am therefore unable to say anything about it.

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.

124 Under the first two of these headings, the Summons says that the plaintiffs seeks the remedies and orders provided by ss 65 and 69 of the Supreme Court Act to: (a) quash the deemed rejection of "Further DA1"; (b) order the council to fulfil a statutory duty to accept the prescribed fee to determine Further DA 1 to invoke the conditioning power provided by s 80A EPA Act as a precondition to determination of DA 08/0966 and SEP 08/0087 by giving proper, genuine and realistic consideration to the merits of the application as required by various statutory provisions and by giving mandatory consideration to the matters provided for in s 79C EPA Ac t , s 89 LGA etc. 125 Under the third and fourth of these headings the Summons says "Provided for in the event the impugned decisions and the Determination of DA 08/0966 and cancellation of SEP 08/0087 revert to the respondent at the order of the Court". Under the fifth heading the Summons says "Provided for in the event the Court orders the impugned Decisions and Determinations to revert to the respondent for Re Determination and Determination of FURTHER DA 1 as a precondition to the exercise of the Respondent's powers in determining DA 08/0966 and SEP 08/0087".

126 The Points of Claim at pp 53-60 group these headings together. The arguments are difficult to decipher but their thread seems to be that in the event Mr Crowther's OSM system has to be upgraded, the council must pay for it. They do not rest upon any assertion of breach and do not give rise to any cause of action.

(xi) Approval, (xii) Fail 68 LGA 127 Mr Crowther says in his affidavit that "Approval" is the decision to require an AS 1547/2000 report in relation to DA 08/0966. He says that "Fail 68 LGA" is the decision "to fail to notify" pursuant to s 77 of the LG Act an intending applicant (pursuant to s 68) that the undertaking of an AS 1547/2000 report on an existing pre 2002 OSM System "would on the balance of probabilities provide Council with documentary evidence of non conformance of that existing OSMS with current health standards, thereby entitling Council to require the OSMS owner to…alter the OSM system".

128 Under each of these headings in paragraph 4 of the Summons appear the words "As per Alter/Modify" - a reference to heading (x). As the heading (x) claims must fail, so too must these claims. (xx) Duty of Care, (xxi) Retrospectivity, (xxii) Negligence, (xxiii) Fail approval 129 Mr Crowther says in his affidavit that "Duty of Care" is the decision to fail to provide the applicants with a statutory duty of care; "Retrospectivity" is the decision to approve as council policy recommendations of certain consultants; and "Negligence" is the decision by the council's General Manager to ignore the applicants' claim of financial hardship.

130 Under each of the headings, paragraph 4 of the Summons states: "Provided for in the event the Court orders the impugned Decisions and Determinations to revert to the Respondent for Re Determination and Determination of Further DA1 as a precondition to the exercise of the Respondent's powers in Determining DA 08/0966 and SEP 08/0087". 131 The Points of Claim at pp 98-101 group together "Retrospectivity, Duty of Care, Negligence and Fail Approval". These pages do not disclose any reasonably arguable cause of action.

132 Although I cannot see it in the Summons or Points of Claim, Mr Crowther in his affidavit of 13 January 2010 said that "Fail approval" refers to the council's approval of SEP 08/0087 (see [49] above); that the approval was an error of law as the council had earlier referred to it as cancelled; and that he considers no lawful approval has been provided by the council to operate the OSM system on the Land. I have earlier rejected this contention: see [13] above.

(xiv) Fail 81 EP&A 133 Although not pleaded, in Mr Crowther's affidavit of 13 January 2010, he alleged a 24th error of law under the heading "Fail 81 EP&A". Given that it was not pleaded, it is unreasonable that this complaint should be entertained.

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.

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