Walton v Blacktown City Council

Appeal 7The powers of the Court on appeal from a s 121B Order are conferred by s121ZK of the Act: (4) On hearing an appeal, the Court may: (a) revoke the order, or (b) modify the order, or (c) substitute for the order any other order that the person who gave the order could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fit, or (f) make any other order with respect to the order as the Court thinks fit. 8In an amended application to the Court the applicant seeks the following orders: 1.That the order of Blacktown City Council dated 9 September 2011 is invalid. 2.In the alternative, that the order of Blacktown City Council dated 9 September 2011 be varied to delete the words, " you are hereby ordered to cease the use of the premises as a group home within 60 days of the date hereof " and insert instead the words, " you are hereby required to complete the work within 14 days ." 3.In the alternative, an order extending time for compliance with the order of the Blacktown City Council dated 9 September 2011.

Evidence 9The hearing included a view of the subject premises. Expert evidence was given on behalf of the Council by Mr Glenn Apps, Team Leader Regulatory Planning. In his statement of evidence dated December 2011 (exhibit 2) Mr Apps noted the circumstances that led to the modification of part of condition 6.1 to permit the applicant to install a film for privacy screening on the first floor windows and noted that at the time of issuing the Notice of Intention and the Order the privacy film had not been installed, and that on his inspection on 9 December 2011 it had been applied, thus satisfying that condition of consent. 10In relation to the fencing at the rear of the property Mr Apps noted that the pre-existing fencing is in good order and that in his opinion the installation of a 300mm lattice would be satisfactory rather than replacement. At the time of providing his statement of evidence Mr Apps noted that the lattice extension had been completed to raise the height of the fence to 1.8m. However, the lattice was not capped and in his opinion capping would provide rigidity to prevent the individual lattice sheets from warping. The lattice has now been capped. 11In relation to the screening at the front of the premises Mr Apps expressed the following opinion: In its current form the lattice screen is unsightly comprising lattice sheeting overlapped and fixed to the balustrade at the stairway and does not satisfy condition 6.1 of the consent. In my opinion satisfaction of the condition of consent can be achieved if the following works are undertaken to the existing lattice: Trimmed so that there is no overlapping of the diagonal piece over the straight piece. Trimmed so that the lower end is perpendicular to the ground, not perpendicular to the balustrade. Capped or framed to assist in providing rigidity to the lattice as well as visually finishing the lattice and paint the lattice screen to match the colour of other external timber, window frames and guttering of the group home. I am not satisfied with the appearance of the lattice and I am of the view that carrying out the above work would resolve my concerns and result in compliance with that aspect of the consent. 12In cross-examination Mr Apps conceded that condition 6.1 requires "framed lattice painted to match the building" and does not refer to aesthetic considerations. Mr Apps agreed that he had carried out inspections and had played a part in the drafting and issuing of the Notice of Intention and the Order. Mr Apps did not accept that this involvement or his expression of opinion concerning the appearance of the lattice screening indicated that he lacked impartiality in providing expert evidence to the Court. 13The general principles relevant to consideration of Council employees giving expert evidence was stated by Biscoe J in Pittwater Council v A1 Professional Tree Recycling Pty Ltd [2008] NSWLEC 325 at [11]: 11 The authorities support the following propositions, in my view. First, a mere family, personal or business relationship (including that of a retainer as an investigator), even of a kind that might reasonably cause an expectation of lack of impartiality, is insufficient of itself to lead to rejection of expert evidence. Secondly, and exceptionally, there may be additional factors which justify rejection on the ground of clear lack of capacity to bring the requisite degree of impartiality to the expert's reasons, either because the evidence is then inadmissible or in the exercise of the court's discretion. In my opinion, that an expert witness is or was an employee of the party retaining the expert, has investigated the matter prior to commencement of proceedings, and has recommended that proceedings be taken, are insufficient factors, of themselves, to lead to rejection of the expert's evidence. That is the present case. 14Nothing in Mr Apps' statement of evidence or in his oral evidence indicated any lack of capacity to bring the requisite degree of impartiality to his evidence. Mr Apps' statement of evidence did include expressions of opinion relating to his desired outcome in terms of appearance of the screening. Where those opinions are not relevant to the issues relating to the circumstances for the issue of the Order and compliance with it, I have given that little weight.

Applicant's case 15The applicant contends that the Order is invalid because the Council did not give reasons for the Order or the reasons were inadequate and the circumstances that were required for the giving of the Order did not exist. The applicant's submissions focused on three matters: 1.That there was no breach of the conditions of consent: Condition 6.2 which was not modified did not require capping of the lattice at the rear fence. Condition 6.1 did not require work to be done to make the privacy screen at the front of the premises attractive and the condition was entirely about privacy, and the reference to "painted to match the building" is too vague to be enforceable. 2.That the Order was not consistent with the Notice of Intention to Issue an Order: The terms of the Order are not consistent with the order foreshadowed in the Notice of Intention and the final Order is a fundamental change to what was required and is in substance a different order. The Notice of Intention foreshadowed an order requiring work to be done within 60 days, and the Order required the applicant to cease operating the premises, and the applicant had no opportunity to make submissions as to why such an order should not be issued. 3.The reasons given for the making of the Order were not sufficient to enable the applicant to decide whether to accept the terms of the order or to appeal: The Order simply recited the pre-conditions for the issuing of the Order and did not provide the true basis for the decision to issue the Order and why the applicant had to cease operating the premises rather than some alternative course of action.

Council's case 16The Council's position was that the reasons for the Order were adequate, on the basis that the Order was issued pursuant to item 1 under s121B. The pre-condition for the issuance of the Order as required by s121B, that the subject premises are being used in contravention of the conditions of a development consent, was satisfied. When the Order is read as a whole the reasons for the exercise of the Council's discretion in issuing the Order provides the recipient with the degree of clarity to enable him to understand the reason for the Council exercising its discretion to issue the Order, and the recipient of the Order could be in no doubt as to the rationale for the giving of the Order. 17The Council submitted that there is a breach of condition 6.1 as the lattice screening at the front stairs is not capped or painted. At the time of the issuing of the Order there was a breach of condition 6.1 in relation to the privacy film on the first floor windows, and of condition 6.2 in relation to the rear fencing. The Council submitted that there is no relevant inconsistency between the Notice of Intention and the Order: both identified that the Order was Order No.1 under s 121B, both directed the applicant to cease using the premises, both identified that there was a contravention of the consent, and both required compliance within the same time frame, namely, 60 days. At the date of the issue of the Notice of Intention there was non-compliance with conditions, and there was still non-compliance at the date of issue of the Order. The Council was entitled to have regard to the matters relevant to the s 96 modification when confirming the Order.

Consideration 18The view confirmed the evidence provided in Mr Apps' statement of evidence that privacy film has been installed to the windows of the first floor bedrooms at the rear of the group home to a height of 1.5m above floor level, and that 300mm lattice with capping has been installed above the fencing in the rear yard. Two sheets of timber lattice have been installed along the stairs at the front of the premises. It was agreed between the parties that the height of the original timber balustrade is 84cm; the height of the extended balustrade is 101cm; and the height to the top of the lattice screen is 1.8m. The view confirmed the photograph taken by Mr Apps on 25 February 2011, that the screen is two separate sheets of timber lattice, one erected horizontally along the landing at the top of the stairs, and the other on the diagonal running down the stairs. 19I accept the evidence of Mr Apps, which was not challenged on this point, that at the time the Order was issued there was no privacy screening on the first floor windows, lattice screening had been installed on the rear fence and was uncapped, and lattice screening had been installed on the front stairs in the form observed on the view. 20I am satisfied that at the time of the issue of the Order the applicant had not complied with condition 6.1 which required the installation of the privacy screen on the first floor windows, and privacy screening on the street fronting the external staircase in the form of "framed lattice painted to match the building" as an alternative to "an opaque screen". 21In the Statement of Environmental Effects dated 16 March 2011 submitted in support of the s 96 modification application the applicant had sought the removal of the requirements for privacy screening along the street frontage and on the first floor windows. However, the terms of the determination of the modification application confirm that while the terms of the condition were amended, the requirement for screening remained. I am satisfied that at the date of the issue of the Order the lattice screening on the rear fence did comply with the terms of condition 6.2. 22Both conditions were conditions that had to be satisfied before occupation of the premises for the approved purpose of a group home. The correspondence in the Council's bundle of documents (exhibit 1) includes correspondence to the applicant from Mr Jeff Mead, a planner acting on behalf of the applicant in the s 96 modification application, stating that the applicant had commenced moving people into the premises. I am satisfied that the circumstances in which Order No. 1 could be issued under s 121B, namely that the premises "are being used in contravention of the conditions of a development consent", existed. The Order was given to the applicant as owner of the premises, and directed that he cease using the premises for the purposes of a group home. 23Section 121L of the Act requires that reasons be given for the giving of an order: 121L Reasons for orders to be given (1) A person who gives an order must give the person to whom the order is directed the reasons for the order. (2) The reasons may be given in the order or in a separate instrument. (3) The reasons must be given when the order is given, except in an emergency. In an emergency, the reasons may be given the next working day. 24The terms of the Order have been provided above. The applicant relied on Van Haasteren v South Sydney Council [2000] NSWLEC 168 and Lederer v Sydney City Council [2001] NSWLEC 272. In Lederer , Lloyd J held that the reasons provided did not clarify why the Council had exercised its discretion to issue the order or narrow down the possible bases of its actions, and concluded at [163]: I do not find that these reasons make intelligible the true basis for the decision to issue the order, or give the recipient sufficient information to decide whether to accept the order, or to appeal. Therefore, it does not satisfy the requirement to give reasons created by s 121L of the Act. On this ground also, the order is invalid. 25I agree with the Council that Lederer is distinguishable. In these proceedings the Order states the circumstances that enlivened the power to issue the Order, namely, the operation of the premises as a group home in contravention of the conditions imposed on the consent, and states why compliance with the conditions as particularised is required. The fact of non-compliance was both a basis for and a reason for taking action: J & J O'Brien Pty Limited v South Sydney Council [2002] NSWLEC 259 at [48]. Reading the Order as a whole, I am satisfied that it makes plain to the recipient the basis and the reason for the decision to issue the Order. 26The terms of the Notice of Intention to issue the Order are provided above. The Notice of Intention sets out the type of order, what it will require and the period for compliance. The accompanying letter particularises the three matters of concern being the screening of the bedroom windows, the screening of the front stairs, and the rear fence. The Notice of Intention informed the applicant of his right to make representations. There was no issue as to service of the Notice of Intention, or the Order. 27Section 121K (1) provides that after hearing and considering any representations made, the person who gives the Order may determine to give an order in accordance with the proposed order, to give an order in accordance with modifications made to the proposed order or not to give an order. Reading both documents as a whole, I am satisfied that while the precise terms of the requirements of condition 6.1 had been amended by the time the Order was issued, there was no difference in substance between the Notice of Intention and the final Order, and Lederer can be distinguished. 28It follows that I do not accept the applicant's submissions that the Order should be revoked because it is invalid or defective. The issue then is whether the Order should be revoked or some other order made in accordance with the power conferred by s 121ZK. 29The Order directed the applicant to cease using the premises for the purpose of a group home. The only non-compliance with condition 6.1 remaining is the finishing of the screening of the front stairs. The Statement of Environmental Effects dated 23 May 2011 proposed the privacy screening be "in the form of an opaque screen or framed lattice painted to match the building" to provide more certainty as to the actual design of the required screen. That is the requirement of the amended condition 6.1. The stated purpose of the condition is to address privacy concerns. I accept Mr Apps' evidence that framing would give the lattice screen greater stability and I accept that painting the screen would address some of the concerns relating to streetscape raised on behalf of the applicant in the Statement of Environmental Effects dated 16 March 2011 in support of the modification application. 30I am satisfied that rather than requiring the applicant to cease use of the premises as a group home, the appropriate course is to require him to carry out the work required by condition 6.1. I propose to substitute for the order issued on 9 September 2011 an order requiring the applicant to comply with the condition of consent by carrying out the work required to the lattice screen. The applicant indicated that this work could be carried out in 14 days. I propose to allow the applicant a period of 21 days to do that work. The partes are to draft an agreed form of words for the substituted order. 31Following discussion with the parties, the following directions were made: 1.By close of business 17 February 2012 the respondent is to notify the applicant as to a range of colours which the respondent considers will match the building in compliance with condition 6.1, and to advise the applicant of the proposed modified terms of the order including a provision that the applicant have 21 days to carry out the work required. 2.The parties are to provide to the Court by close of business on 22 February 2012 the agreed terms of a modified order, and following receipt of that I will make orders in chambers. 3.Liberty to the parties to restore the matter on 48 hours notice. Linda Pearson Commissioner of the Court 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. Decision last updated: 03 March 2012