Alcock v Director-General, Territory and Municipal Services (Administrative Review)
[2016] ACAT 78
•30 June 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
ALCOCK v DIRECTOR-GENERAL, TERRITORY AND MUNICIPAL SERVICES (Administrative Review) [2016] ACAT 78
AT 109/2014
Catchwords: ADMINISTRATIVE REVIEW – review of direction to repair damage to public unleased land – what is ‘damage’ – were works approved – should Tribunal retrospectively approve works – should a direction be issued – what should the direction require - direction cannot be issued where damage predates legislation
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68
Legislation Act 2001 ss 6, 84, 139, 254
Planning and Development Act 2007, s 50
Public Unleased Land Act 2013 ss 19, 21, 202, 204
Roads and Public Places Act 1937 (repealed) ss 2C, 9, 14, 15
Cases cited:Attorney-General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261
Byrne v Garrisson [1965] VR 523
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Fisher v Hebburn Ltd (1960) 105 CLR 188
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115R v Roux [2015] ACTSC 307
Samuels v Stubbs (1972) 4 SASR 200
Walkington & Ors and ACT Planning and Land Authority [2010] ACAT 81
Tribunal: President M-T Daniel
Date of Orders: 30 June 2016
Date of Reasons for Decision: 19 July 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 109/2014
BETWEEN:
ROBERT ALCOCK
Applicant
AND:
DIRECTOR-GENERAL, TERRITORY AND MUNICIPAL SERVICES
Respondent
TRIBUNAL: President M-T Daniel
DATE: 30 June 2016
ORDER
The decision under review is set aside and a decision to not make a direction under section 21 of the Public Unleased Land Act 2013 is substituted for the decision under review.
………………Signed…..
President M-T Daniel
REASONS FOR DECISION
On 17 September 2014 the Director-General Territory and Municipal Services by his delegate issued a Direction (the Direction) under section 21 of the Public Unleased Land Act 2013 (PUL Act) to the applicant in this matter. The Direction required the applicant to repair unauthorised damage to public unleased land on block 15 section 89 Banks (the public land). The Direction specified:
Damage to be repaired – all of the developments on the reserve at Block 15 Section 89 Urban Open Space adjacent to your lease at Block 1, Section 105, 7 Galbraith Close, Banks, including the concrete driveway, concrete terraced gardens, the area adjacent to your swimming pool structure and other landscaping that encroaches onto public unleased land is to be removed and the area restored to its natural state.
The applicant does not contest that he has undertaken certain works (the works) on the public land, which is situated immediately adjacent to the north-eastern boundary of his property. It is those works which were the subject of the Direction. The works consist of:
(a)a sizeable concrete block retaining wall (the retaining wall), forming a dogleg out from the north-eastern boundary, behind which sits a paved and grassed area beside the applicant’s pool;
(b)on top of the concrete block retaining wall, a colourbond fence, and steel and glass pool fences;
(c)on the north-eastern side of the retaining wall, and running most of its length, a series of stepped concrete terrace gardens approximately three metres wide (the terrace gardens); and
(d)on the north-eastern side of the terrace garden, and running in an arc from the bottom to the top of the north-eastern boundary of the block, a strip of concrete roughly three metres wide (the concrete strip) which was referred to in the Direction as “the concrete driveway”.
The applicant also concedes that in order to undertake the works he had first undertaken earthmoving works which had altered the contours of the public land.
The applicant has applied to the Tribunal for review of the decision to issue the Direction.
The hearing
The hearing of the application for review was held over four days in June and July 2015. Mr Alcock represented himself at the hearing, assisted by Mrs Alcock. The respondent was represented by Dr Jarvis of Counsel, instructed by Ms Mohindra. Both parties had filed two statements of facts and contentions, and a number of witness statements and expert reports.
The hearing commenced on 15 June 2015 with a site view, before resuming at the Tribunal for the taking of evidence. The hearing continued on 16 June, and 10 and 13 July 2015.
Over the four days of hearing the Tribunal heard evidence on behalf of the applicant from:
Mr Robert Alcock – the applicant, an experienced concreter and builder who also has some qualifications in drainage. The Tribunal took much of the facts contained in the applicant’s statements of facts and contentions to be, effectively, a witness statement by Mr Alcock.[1]
Mrs Alcock – wife of the applicant, an office manager. Mrs Alcock had not provided a written witness statement but provided some short oral evidence on matters which arose during the hearing, of which she had direct knowledge.
Ms Daphne Bain – a neighbour of the applicant, who had observed the flooding and erosion of the public land in the 2006/2007 storm. Mrs Bain had provided a witness statement.[2]
Mr Graeme Schoobridge – a civil engineer with over 40 years experience in traffic and civil engineering, who had prepared a report on the effectiveness of the works in managing the stormwater and erosion issues on the public land.[3]
[1] Exhibit A2 and A5
[2] Exhibit A1
[3] Exhibit A4
The applicant also put before the Tribunal video footage and photographs of the public land showing the works and surrounding areas, taken by Mr Alcock during a period of rain on 17 June 2015,[4] together with earlier photographs.[5]
[4] Exhibit A8 and A9
[5] Exhibits A3, A6 and A7
The respondent filed a comprehensive bundle of T-documents as directed[6]. In addition, the respondent relied on evidence from:
Mr Garry George – the delegate of the Director-General who had made the decision to issue the Notice. Mr George had provided a written witness statement.[7]
Mr Gabriel Joseph – a senior manager at TAMS who is a civil engineer with 37 years experience who had provided a witness statement.[8]
Mr Philip Prentice – an engineer with Indesco Consulting Engineers which had provided a report on the stormwater conditions at and around the subject site, including what excavation or filling had occurred, whether the works improved or were detrimental to the flood management, erosion control or drainage of the area, and what if any remedial actions should be taken. The Indesco report was also in evidence.[9]
Mr John Wearne – a civil engineer of more than 30 years experience, currently Principal Civil Engineer with GHD Pty Ltd, the firm which had been engaged as a consultant by TAMS in a stormwater design project including the public land following extensive flooding over December 2006/January 2007. Mr Wearne provided a written witness statement[10].
Mr Peter Mayberry – the surveyor who had conducted a survey of the applicant’s block and the public land. Mr Mayberry’s statement and a copy of the survey was put before the Tribunal.[11]
Mr Kevin Ross Schofield – a works manager with Territory and Municipal Services who was engaged in managing the contract for the stormwater design and works for that Directorate in 2007/2008. Mr Schofield had not provided a written witness statement.
[6] Exhibit R1
[7] Exhibit R2
[8] Exhibit R6
[9] Exhibit R9
[10] Exhibit R7
[11] Exhibit R3
The respondent also relied upon the following documentation:
·ACTNow Inspection and Building Report[12]
·Extract from Licensed Builders Register[13]
·Hawkins Report to ACT Procurement Solutions dated 21 Dec 2007 for completion of stormwater rectification works[14]
·An A3 sized colour copy of ACTmapi dated 4 March 2015 showing the public land and the applicant’s block[15]
·Further photographs of the public land and the works, taken over a period in 2007[16] and during the recent rain storm on 17 June 2015[17]
·A sewerage map of the area[18]
·Two emails by Mr Wearne with attached drawings, depicting the contour lines and water flows over the area[19]
·A proposed form of direction which the respondent sought that the Tribunal make in substitution for the Direction
[12] Exhibit R4
[13] Exhibit R5
[14] Exhibit R8
[15] Exhibit R10
[16] Exhibit R11
[17] Exhibit R14
[18] Exhibit R15
[19] Exhibits R12 and R13
At the conclusion of the hearing the Tribunal reserved the decision.
The legal framework for the review of the Direction
The Direction was made under the PUL Act.
Section 129 and Schedule 1 of the PUL Act together provide that the applicant as the person subject to the Direction is entitled to apply to the Tribunal for review of the decision by the Director-General to give the Direction.
In reviewing the decision, the Tribunal must determine what is the correct or preferable decision, and is empowered to make orders confirming, varying, setting aside and substituting, or remitting the decision.[20] The Tribunal in exercising its review function also has available to it all of the powers which were available to the Director-General for the original decision.[21]
[20] ACT Civil and Administrative Tribunal Act 2008 section 68(3)
[21] ACT Civil and Administrative Tribunal Act 2008 section 68(2)
The proceedings raised a number of issues as to the correct operation of section 21 of the PUL Act, and whether a Direction could, and if so should, be given in the circumstances of this case. These issues were:
(a)Can section 21 of the PUL Act be employed in circumstances where the act or acts causing the damage were undertaken, and concluded, prior to the commencement of that legislation?
(b)If so, do the works constitute ‘damage’ to the public land?
(c)If the works constitute ‘damage’, were they nonetheless the subject of approval or permission?
(d)If the works constitute ‘damage’, and there was no approval for them, could, and should, approval for those works now be given by the Tribunal exercising the power of the Director-General under section 19 of the PUL Act?
(e)If the PUL Act applies, and the works constitute ‘damage’ and are not the subject of approval, is the correct or preferable decision to issue a direction to repair that damage, given the nature of the works and the history of storm water and erosion issues on the public land?
(f)If it is appropriate to issue a direction to repair, what should the direction require?
Before considering these issues, it is convenient to set out the broader history of the case.
Background facts
From the material filed and evidence given at hearing I am satisfied of the following facts.
The applicant is a registered and licensed builder class C. Prior to 2004 he purchased block 1 section 105 Banks (the block), which is situated at the foot of (and to the north/west of) Big Monks Hill. The applicant was given some discount on the block because of damage that he says had been done to it by the developer, which would impact upon the footing costs. The applicant said, and it was not contested, that the soil on the block was fine and silty, and prone to erosion.
The public land is situated on the north-eastern side of the block. The boundary between the block and the public land is not a straight line but forms a ‘dogleg’.
At the time of purchase the public land contained a natural gully.
In around 2004 the applicant commenced building work on the block. By reference to the building file,[22] on 27 July 2004 surveyors completed a report advising that the block boundaries were not fenced, that brick foundations for the house were in place and there was no encroachment on adjoining land.
[22] Exhibit R3
Over the period of time to the end of 2006 the applicant continued building work on the block. At various times building approval was granted to add a swimming pool, a pergola and pool room.
As a part of the work being done over this period the applicant constructed the concrete block retaining wall described at paragraph 2(a) above. The applicant explained in his evidence that due to an error by him in measuring the distances,[23] the point of the ‘dogleg’ in the north-eastern boundary was situated too far to the south-east, resulting in him building part of the retaining wall on the public land and not on the boundary.
[23] Possibly due to a mislocated surveyors peg, oral evidence Mr Alcock
While some of the approved plans contain a reference to the building of retaining walls across the rear of the property, there is no reference to the retaining wall described at paragraph 2(a). Nonetheless, the retaining wall was built and landscaping undertaken to provide a paved and grassed area alongside the pool. The area of public land ultimately situated on the wrong side of this retaining wall is not insignificant.
Soon afterwards, the site was inspected by the private certifier, and a partial certificate of occupancy granted. The private certifier does not appear to have noted that the retaining wall and landscaping encroached on the public land.
On New Year’s Day 2007 Mr and Mrs Alcock were at the coast when their neighbour Mrs Bain telephoned them and advised there had been a bad thunderstorm the evening before, and run-off from the Big Monks Hill catchment to the rear of the block (south and west) had flooded down their block to the gully on the public land. It transpired that the stormwater drains were blocked.[24] The stormwater had forced its way through Mr Alcock’s block, eroding a large amount of soil. The fortuitous placement of a pile of blue metal diverted the stormwater from eroding under the building which was under construction at the front of the block. However the pool was affected, and had to be lifted up and reinstated.
[24] Some attention was directed in the hearing, and in the documents filed, to the question of whether the applicant, or some other person, was responsible for the blockage of the stormwater system. That issue is irrelevant to these proceedings
As a consequence of the New Year’s Day 2007 flooding the Territory engaged consultants GHD Pty Ltd to design and oversee the construction of stormwater rectification works in a number of Canberra suburbs, Banks being one.
Over the course of 2007 a design was prepared in relation to the public land, involving the construction of a concrete/rock drain in the gully, and rebuilding of the earth contours in the public land to channel stormwater into that gully. Work was also done on drain construction uphill to the rear of the block. At the conclusion of the earthmoving and drainage work, a straw/bitumen mulch and grass seed was sprayed over the public land adjacent to the concrete/rock drain, extending to the concrete retaining wall, and this was watered until grass grew.
The rectification project concluded in November 2007, with the photographs of that time showing the completed concrete/rock drain and grass covering the public land in the area between the concrete/rock drain and the retaining wall.
Also over the course of the 2007 the applicant spoke on a number of occasions with Mr Schofield, with the civil engineer and other persons, about the stormwater rectification works. The applicant was concerned that the rectification project ensure that water was not directed towards his block, and he proposed that a design in terms of the works set out in paragraph 2 would achieve that outcome. The proposals put forward by the applicant in these discussions were not adopted by the engineer or incorporated into the rectification works, although the presence of the concrete block retaining wall is depicted on one site plan for the rebuilt earth contours which is stamped ‘approved’.
The rectification works were signed off as complete in December 2007. [25]
[25] Ex R8
After December 2007, the applicant continued to have concerns about the rectification works and pursued his proposed design with Mr Schofield when their paths crossed.
In 2012-2013, the applicant himself undertook first the terracing work, and then the concreting. The applicant conceded in his oral evidence that he knew when undertaking this work that it was outside the boundary of his block. In his opinion while these structures could be classed a permanent structure “they can come down quite quickly” due to a lighter mix of concrete being used and a lack of footings.[26]
[26] Mr Alcock, oral evidence
The respondent asserts that the total area of public land now covered by the works is approximately 200 square metres.
In 2014 the respondent received a complaint that the applicant had assumed public land for his own private use.
Mr George as delegate of the Director-General[27] conducted an investigation into the complaint, culminating in the issuing of the Direction on 17 September 2014.
Consideration of the issues
(a) Can section 21 of the PUL Act apply in circumstances where the act or acts causing the damage were undertaken, and completed, prior to the commencement of that legislation?
[27] The existence of a valid delegation to Mr George was disputed in the applicant’s documents, however this issue was resolved prior to the hearing by production of the relevant instrument
This issue was raised as a preliminary point at the commencement of the hearing.
Section 21 of the PUL Act provides:
21Directions to repair damage to public unleased land
(1)This section applies if—
(a)a person causes damage to—
(i)public unleased land; or
(ii)Territory property on public unleased land; and
(b)the damage is not authorised under—
(i)an approval under this Act; or
(ii)a public unleased land permit; or
(iii)a nature conservation licence under the Nature Conservation Act 2014, section 262 (What is a nature conservation licence?).
(2)The director‑general may direct (a repair damage direction) the person to repair the damage.
(3)A repair damage direction must be in writing and state—
(a)the public unleased land and Territory property (if any); and
(b)the damage to be repaired; and
(c)when the direction must be complied with, being a day at least 1 month after the direction is given to the person.
Prior to commencement of the PUL Act the Roads and Public Places Act 1937 (RPP Act) dealt with the issue of damage to public land. The RPP Act was repealed on commencement of the PUL Act. The RPP Act by section 14 had provided:
14 Repair of damage to public places
(1) A person who causes damage to a public place other than the fair wear and tear due to ordinary and reasonable use of the public place must—
(a)pay the cost incurred by the Territory in making good the damage; or
(b) if the Minister requires, make good the damage to the satisfaction of the Minister or a roads and public places officer.
(2) Subsection (1) applies whether or not the person was acting with the permission of the Minister or a roads and public places officer or under a permit granted to the person under this Act.
The applicant argued that because section 21 of the PUL Act applies ‘where a person causes damage’, if the acts causing the damage had occurred prior to commencement of the PUL Act, such damage fell outside the scope of the section. In other words, that the use of section 21 in the circumstances of this case involved a kind of retrospective application of the provision, which was not open on the ordinary meaning of the words used in section 21, and was contrary to the statutory presumption against retrospective operation. The applicant submitted that the phrase ‘causes damage’ in section 21 should be interpreted to apply only to damage caused after the commencement of the PUL Act.
If the applicant’s argument was accepted, then the Tribunal would have jurisdiction to review the decision to issue the direction[28], but in conducting the review would not be satisfied that it was appropriate to issue any direction under section 21. The inevitable consequence would be that the decision under review would be set aside, and replaced with a decision not to make a direction.
[28] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Counsel for the respondent submitted that the important point for the use of section 21 was that the damage be in existence at the time at which section 21 was called upon. In terms of the presumption against retrospectivity, it was submitted that in the circumstances of this case and given the similar terms of the preceding legislation, no unfairness or injustice would be worked by adopting the interpretation urged by the respondent.[29] It was submitted that the interpretation urged by the respondent should be adopted because the consequence of adopting the interpretation urged by the applicant would be to provide ‘immunity’ in relation to all unapproved damage in existence in the Territory as at the time of commencement of the PUL Act. This was argued to be a ridiculous and unintended consequence, which should not be preferred.
[29] This seems to be a reference to the approach taken in Attorney-General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261
It was submitted for the respondent that rather than applying the natural meaning of the words, a broader interpretation should be adopted, because of the remedial and protective nature of the PUL Act. It was submitted that the broader interpretation would best achieve the purpose of the PUL Act, by enabling pre-existing damage to be the subject of a repair direction and avoid the unintended consequence of ‘immunity’ for responsibility to repair past damage.
Counsel for the respondent pointed out that the application of section 21 to past acts must have been contemplated by the legislature, because the transitional provisions provided that permissions granted under the Roads and Public Places Act 1937 (repealed) (RPP Act) would be taken to be approvals under the PUL Act.
After hearing these oral submissions, I indicated to the parties that I was satisfied, at least on a preliminary basis, that is was open to issue a direction under section 21 of the PUL Act, and accordingly it was appropriate to proceed with the hearing to review the substance of the decision to issue the direction. I noted, however, that I had not reached a final view on the issue, and would consider it in greater depth after the conclusion of the hearing.
On 3 May 2016 I directed that further written submissions be filed addressing the question of whether section 21 of the PUL Act could be utilised in relation to damage which predated it, with particular reference to:
(a)the presumption against retrospectivity;
(b)whether the PUL Act can be considered to be procedural or substantive;
(c)section 84 of the Legislation Act 2001; and
(d)any legal or practical impossibility of action being taken under the RPP Act.
The parties provided further written submissions as requested.
The question for the Tribunal is how to interpret the words used in section 21 of the PUL Act.
Section 139 of the Legislation Act 2001 requires that in working out the meaning of section 21 an interpretation which best achieves the purpose of the Act must be preferred. The purpose can be discerned from the words used in the section, by reference to the stated objects and purpose of the Act and broader context of the Act, and by having regard to contemporaneous extrinsic material such as the explanatory statement or second reading speeches.
I accept the applicant’s submission that a natural reading of the phrase ‘this section applies if a person causes damage’ would result in only a prospective application of section 21.
Section 6 of the PUL Act sets out the objects of the PUL Act as being to protect the amenity and natural value of public unleased land and facilitate the use of unleased land. According to the explanatory statement the PUL Act was intended to ‘modernise’ and ‘revamp’ the previous legislative regime.[30] Neither the explanatory statements nor the speeches in the Legislative Assembly shed any light on whether the legislation was intended to operate only prospectively or to also apply to damage caused before the commencement of the PUL Act. There is no indication in the surrounding legislative context or extrinsic material that section 21 was intended to apply to damage caused before the commencement of the PUL Act.
[30] Explanatory statement to PUL Bill - Overview
Counsel for the respondent pointed to the transitional provisions to the PUL Act (Part 20 as enacted) as evidence that the legislature intended the PUL Act to apply to damage to public land irrespective of when the damage was caused. Relevantly, sections 202 and 204 of the transitional provisions read:
202 Permissions to interfere etc be work approvals
(1) This section applies if, immediately before the commencement day, a person holds a permission—
(a) to interfere with a public place or other thing under the Roads and Public Places Act 1937, section 7 (Damage to or interference with public places and property on them); or
(b) to make an excavation in a public place under the Roads and Public Places Act 1937, section 8 (Construction of culverts etc in public places); or
(c) under the Roads and Public Places Act 1937, section 9 (Permission to place culverts etc across, and to interfere with the surfaces of, public places) to make or place a culvert, bridge, crossing or drain across a watertable, watercourse or footpath in, or to open up or break the surface of, any public place.
(2) The permission is, on the commencement day, taken to be a work approval—
(a) in the same terms as the permission; and
(b) subject to the same conditions as the permission.
(3) The work approval—
(a)is taken to expire on the day stated in the permission; and
(b)must not be amended, transferred or renewed.
...
204 Old permits to be public unleased land permits
(1) This section applies if, immediately before the commencement day, a person holds a permit (an old permit) under the Roads and Public Places Act 1937.
(2) The old permit is, on the commencement day, taken to be a public unleased land permit—
(a) in the same terms as the old permit; and
(b) subject to the same conditions as the old permit.
(3) The public unleased land permit—
(a) is taken to expire on the day stated in the old permit; and
(b) must not be amended, transferred or renewed.
It is important to remember that any transitional provisions contained in repealing legislation are usually not the only transitional provisions. Section 84 of the Legislation Act 2001 also applies whenever an Act is repealed, unless it is displaced expressly or by a manifest contrary intention[31]:
[31] Legislation Act 2001, section 6
84Saving of operation of repealed and amended laws
(1) The repeal or amendment of a law does not—
(a) revive anything not in force or existing when the repeal or amendment takes effect; or
(b) affect the previous operation of the law or anything done, begun or suffered under the law; or
(c) affect an existing right, privilege or liability acquired, accrued or incurred under the law.
(2) An investigation, proceeding or remedy in relation to an existing right, privilege or liability under the law may be started, exercised, continued or completed, and the right, privilege or liability may be enforced and any penalty imposed, as if the repeal or amendment had not happened.
(3) Without limiting subsections (1) and (2), the repeal or amendment of a law does not affect—
(a) the proof of anything that has happened; or
(b) any right, privilege or liability saved by the law.
(4) This section does not limit any other provision of this chapter and is in addition to any provision of the law by which the repeal or amendment is made.
(5) This section is a determinative provision.
(6) In this section:
liability includes liability to penalty for an offence against the law.
penalty includes punishment and forfeiture.
privilege includes immunity.
right includes capacity, interest, status and title.
Section 84, if not displaced, would operate upon the repeal of the RPP Act to preserve any liability under the RPP Act, and allow that liability to be the subject of investigation, action or proceedings notwithstanding the repeal. If section 84 applied to the RPP Act, then the respondent’s submission based on ‘unintended immunity’ would be misguided.
Counsel for the respondent submitted that the transitional provisions provided by Part 20 of the PUL Act (as enacted) evidenced both an intention that the PUL Act operate in relation to past damage (for the purpose of interpretation of section 21), and a manifest contrary intention in relation to the application of section 84 of the Legislation Act.
I am not persuaded by these submissions.
Subsection 84(4) of the Legislation Act provides that it is additional to any provisions in the repealing law. Subsection 6(7) of the Legislation Act provides that a provision of that Act is not displaced merely because the provisions deal with the same or a similar subject matter. It follows that the mere existence of other transitional provisions is not evidence of a manifest contrary intention, one must instead look to the content of those transitional provisions. In the current case such an examination demonstrates, contrary to the submission of the respondent, an intention that section 84 would operate to preserve rights and liabilities acquired under the RPP Act. This is not because of what is contained in the transitional provisions, but because of what is lacking.
The transitional provisions operate to deem work permits or permissions granted under the RPP Act to have status as an approval or permit under the PUL Act. Counsel for the respondent argued that it could be inferred that the continued effect of such approval or permission was necessary because it was intended that past damage would be captured by the PUL Act, thus the provisions evidenced an intention that section 84 not apply. While this inference is available, there is another which bears consideration. It could be argued that although section 84 operated to preserve rights and liabilities for actions undertaken under the old RPP Act, for administrative efficiency any permissions or permits granted were continued with equivalent legal effect in relation to actions to be undertaken after commencement of the PUL Act. This would obviate the need for persons to reapply under the new scheme for work previously approved which had not yet been undertaken.
The explanatory statement to the transitional provisions noted that Part 20 ‘provides transitional provisions that determine the treatment of matters decided under the [RPP Act] before the commencement of the [PUL Act]”. However, there were very few transitional provisions contained in Part 20. If the respondent’s submission that Part 20 provided the entirety of the transitional provisions was correct one would expect that there would be transitional provisions for other important things done under the RPP Act. For example, there might be a transitional provision which provided that if the Minister had given a direction under section 14 of the RPP Act, it would be taken to still have legal effect, or perhaps it would be taken to be a direction by the Director-General under section 21 of the PUL Act.
Rather than the applicant’s interpretation of section 21 resulting in ‘immunity’ for past damage, this would instead seem to be the unavoidable consequence of adopting the approach to the transitional provisions urged by the respondent.
I am satisfied that neither the existence nor content of Part 20 of the PUL Act (as enacted) can be interpreted as a manifest contrary intention for the application of section 84 of the Legislation Act. As demonstrated in paragraph 58 the transitional provisions and section 84 are capable of concurrent operation. Subsection 6(7) of the Legislation Act provides that a provision of that Act must not be taken to be displaced by a provision of an Act so far as the provisions are capable of concurrent operation.
Further, the consequence of dis-applying section 84, given the paucity of the transitional provisions, could produce an unexpected result of ‘immunity’ for a number of matters under the RPP Act, a consequence which could not have been intended given the purposes of the legislation adverted to above.
In my view Part 20 of the PUL Act supplements, rather than displaces, section 84 of the Legislation Act.
For these reasons, I am satisfied that the interpretation which would best promote the objects of the PUL Act is to give the words of section 21 their natural meaning as applying only to damage caused after the commencement of the PUL Act.
I am satisfied that liability for damage caused before the commencement of that legislation continues to be dealt with under the RPP Act, the operation of which is preserved for that purpose by section 84 of the Legislation Act.[32] The respondent asserted that there was no longer a ‘Minister’ for the RPP Act or roads and public places officers to implement any direction given under section 14 of that Act. However, the lack of a Minister can be easily rectified by administrative arrangements issued by the Chief Minister, or potentially by the Chief Minister himself under section 254 of the Legislation Act. Further, the effect of section 84 is to continue the RPP Act, thereby continuing the definition of a ‘roads and public places officer’ contained in section 2C of that Act which includes an investigator appointed under the Fair Trading (Australian Consumer Law) Act 1992.
[32] The respondent conceded that the applicant had a ‘contingent liability’ under the RPP Act, applying the reasoning set out in Byrne v Garrisson [1965] VR 523 such a liability is preserved under the Legislation Act2001 provisions where it may not have been at common law
Because section 21 applies only where damage is caused after the commencement of the PUL Act, a direction under section 21 cannot be made in this case. It follows that the decision of the Tribunal must be to set aside the decision under review, and replace it with a decision not to issue a direction under section 21 to repair the damage.
It is not necessary to consider whether the interpretation urged by the respondent was contrary to the common law presumption against retrospective operation[33], and specifically whether or not the PUL Act is substantive or procedural, or whether or not the applicant’s liability under the RPP Act had sufficiently accrued so as to engage that presumption, if it applied.
[33] Fisher v Hebburn Ltd (1960) 105 CLR 188
Because of the conclusion I have reached, it is also not necessary to consider the remaining questions posed at the outset of this case. However, given that the parties underwent a four day hearing, presented expert and eyewitness evidence as to the facts, and made submissions on a number of legal issues relevant both to the PUL Act and the RPP Act, it is appropriate that I set out my findings of fact and conclusions about the legal issues debated, if only in summary form.
(b) If so, do the works constitute ‘damage’ to the public unleased land? (section 21(1)(a) PUL Act)
The second issue which arises for consideration is whether or not the works amount to ‘damage’ to public unleased land as required by paragraph 21(1)(a) of the PUL Act.
The word ‘damage’ is not defined in the PUL Act. The ordinary meaning is “injury or harm that impairs value or usefulness”[34] or alternatively “physical harm that impairs the value, usefulness, or normal function of something”.[35] To determine whether the public land has been damaged, therefore, it is necessary to establish that physical injury or harm has occurred, and be satisfied that this has impaired the value, usefulness or normal functioning of the public land.
[34] Macquarie Dictionary
[35] Oxford Dictionary
The applicant did not contest that he had undertaken physical works on the public land, and this included preliminary earthworks. However, he argued that these were largely consisting of concrete poured on top of the land, would not be difficult to remove, and could not be considered to be permanent. He contested that he had in any but the most minor way, caused physical harm to the public land situated underneath the works.
The respondent submitted that the term ‘damage’ should not be given a narrow scope given the objects and purpose of the PUL Act.
The phrase ‘causes damage’ has been the subject of judicial interpretation where appearing in many other pieces of legislation. Even in the context of criminal law, in which one would expect a narrower interpretation of the phrase to be adopted, it has long been accepted that the term can encompass even the ‘temporary functional derangement’ caused when a police officer’s cap was squashed flat.[36] Given the purpose of the PUL Act, it is not appropriate to read into the concept of ‘damage’ the necessity that the damage be permanent or irreversible.
[36] Samuels v Stubbs (1972) 4 SASR 200, see R v Roux [2015] ACTSC 307 per Refshauge J paragraphs [144] to [149] for a summary of authorities
I am satisfied that the works, and the preliminary earthworks, constitute injury or harm to the public land, and turn next to the question of whether the value, usefulness or normal functioning of the public land has been impaired.
The public land in this case is zoned PRZ1 under the Territory Plan, that is an ‘Urban Open Space Zone’. The zone objectives for PRZ1 are:
PRZ1 - Urban Open Space Zone
Zone Objectives
(a) Provide an appropriate quality, quantity and distribution of parks and open spaces that will contribute to the recreational and social needs of the community.
(b) Establish a variety of settings that will support a range of recreational and leisure activities as well as protect flora and fauna habitats and corridors, natural and cultural features and landscape character.
(c) Allow for stormwater drainage and the protection of water quality, stream flows and stream environs in a sustainable, environmentally responsible manner and which provides opportunities for the community to interact with and interpret the natural environment.
(d) Allow for ancillary uses that support the care, management and enjoyment of these open spaces including park maintenance depots, small-scale community activity centres.
(e) Ensure that development does not unacceptably affect the landscape or scenic quality of the area, adequacy of open space for other purposes, access to open space, or amenity of adjoining residents.
(f) Provide for integrated land and water planning and management.
The respondent submitted that in interpreting the word ‘damage’ regard should also be had to the objects of the PUL Act, which are to “protect the amenity and natural value of public unleased land” and “facilitate the use of public unleased land.”
It was submitted by the applicant that the works constitute necessary erosion control measures which should have been undertaken by the Territory in the stormwater rectification project, and were not. The applicant submitted that as a result of the state the contours of the land were left in at the conclusion of the stormwater project, his property was left exposed to risk of damage from concentrated water flows, and the terracing and concreting and preliminary reshaping of the land had been necessary to remove this risk.
The applicant submitted that the overall consequence of the works was not to damage but to improve the public land, in that the risk of erosion was reduced, and the surface of the concrete strip was safer for pedestrians than a grassed surface or nearby footpaths with loose soil on them. He submitted that the visual aspect provided by the works was pleasing and consistent with other works on public land in the vicinity.
The respondent argued that the Tribunal should not engage in a process of determining whether the ‘net’ value of the public land had been reduced overall, and that it was sufficient if value or usefulness in any one aspect had been impaired.
I consider that the approach urged by the respondent is correct, and the concept of ‘damage’ in paragraph 21(1)(a) is not to be determined by an assessment of whether the overall value, usefulness and normal function of the public land has been impaired. Rather, the decision-maker must make an assessment of whether the injury or harm to the land has in any respect impaired the value, usefulness or normal function of that public land.
This is not to say that the factors advanced by the applicant are irrelevant. The superficial nature of any works, their necessity for erosion or flood control, and the ‘net value’ approach urged by the applicant might more properly be considered in exercising the discretion under subsection 21(2) of the PUL Act whether or not to issue a direction.
Applying this rubric, I am satisfied that the preliminary earthworks undertaken on the public land by the applicant prior to 2007, constituted damage to the public land. Further, although the applicant argued that these structures simply sit on top of the public land, I am satisfied that the erection of the retaining wall, any fill placed behind it, and the earthworks necessary to construct it, each constitute damage to the public land on which they are situated. This is because these works have interfered with what was the natural state of the public land, and the consequence of these works is that the area of public land is physically changed and not available to the public. Its value, usefulness and normal function has been reduced.
I am also satisfied that the construction of the terraced garden beds, and the laying of the concrete strip, each constitute damage to the public land. This is because in order to construct these works the applicant undertook further minor earthworks to reshape the contours of the public land from how it had been left at the conclusion of the stormwater rectification works. While the concrete in the terraced garden beds and elsewhere sits largely on the top of the re-shaped land, these are significant structures – in the case of the concrete being reinforced with continuous steel mesh – that affect not only the visual amenity of the area but the way in which the public can use the public land. While the quality of the workmanship may be high, this does not mean that it is not ‘damage’.
(c) If the works constitute ‘damage’, were they nonetheless the subject of approval or permission? (section 21(1)(b) PUL Act)
In order for a direction to be issued under section 21 of the PUL Act, the ‘damage’ must not be authorised. This is different to the situation under section 14 of the RPP Act, whereby a requirement to repair damage can be issued even if a permit or permission had been granted.
Although the retaining wall was constructed on the public land in error, rather than with prior approval, the applicant argued that it was subsequently ‘authorised’ because the presence of the wall was depicted on plans of the public land prepared in 2007 for the stormwater rectification project.
The applicant further argued that the terracing and concrete strip were the subject of verbal approval given by Mr Schofield. The applicant was unable to point to the exact date of the verbal approval, but relied upon the history of his interactions with Mr Schofield and the contractors for the stormwater rectification project. The evidence of the applicant was that over a number of interactions Mr Schofield agreed with the applicant’s design proposal, even to the extent of discussing height requirements for the walls, and stated that if the design was ‘alright’ with the contractors it was ‘alright’ with Mr Schofield. The applicant’s evidence was that he pressed Mr Schofield on numerous occasions to provide him with an aerial photograph of the public land which was to be drawn upon and submitted to a government agency for approval, although the precise agency to which it was to be submitted was unclear.
As noted earlier, the transitional provisions to the PUL Act provide that a permission granted under the RPP Act has effect as an approval under the PUL Act. The respondent disputed that permission was ever granted under the RPP Act. The respondent submitted that for permission for the works to have been granted under section 15B of the RPP Act there would first be the necessity for a written application. Such an application would need to be accompanied by a plan clearly showing the defined boundaries of the object – a process similar to that described in the applicant’s evidence. The respondent submitted that no such application was ever submitted. There was no evidence of an application being submitted. I find that no application was submitted under section 15B of the RPP Act, and consequently no permit was granted.
The phrasing of section 15B of the RPP Act is not consistent with permanent works being conducted. A more apt provision, if there was any provision for approval of works of the kind carried out in this matter, might have been section 9 of the RPP Act which provides:
9Permission to place culverts etc across, and to interfere with the surfaces of, public places
(1)The Minister or a roads and public places officer may give permission to a person to make or place a culvert, bridge, crossing or drain across a watertable, watercourse or footpath in, or to open up or break the surface of, any public place.
(2)The permission may be given subject to the conditions the Minister decides.
The applicant submitted that the works fell within section 9, and that he had been given verbal approval by Mr Schofield. The works would fall within section 9 if, as submitted by the applicant, they were regarded as drainage measures. There was evidence that the retaining wall, being in the nature of a ‘hob wall’ performed a drainage function, as did the hard surface of the concrete strip. The retaining wall, it would seem, was never the subject of express verbal approval but rather was taken for granted in subsequent discussions about the terrace gardens and the concrete strip.
Even if the concrete strip and terrace gardens are considered to fall within the terms of section 9 I am not satisfied that verbal approval was given under that section, for two reasons.
First, approval for section 9 could only be given by the Minister or a roads and public places officer. Mr Schofield’s evidence was that he did not have the authority to approve works on public land, and that his understanding was that a written application would have to be made. There is no evidence that Mr Schofield was a delegate of the Minister nor that he had been appointed as a road and public places officer.
I am not satisfied on the evidence of the interactions between Mr Schofield and Mr Alcock that Mr Schofield had ostensible authority to grant an approval on behalf of the Minister, rather I am satisfied that the content of the discussions was that approval would have to be provided by the unspecified agency to which the aerial photograph was to be submitted. Specifically, I do not consider that the ‘alright’ conversation outlined above at paragraph 86, even if it occurred with the clarity that the applicant now recounts it, cloaked Mr Schofield with ostensible authority on behalf of the Minister to grant verbal approval. The continued efforts by the applicant to obtain the aerial photograph for submission to the government agency are inconsistent with the conclusion that the applicant thought that Mr Schofield had authority to approve the work.
Secondly, the evidence did not satisfy me that permission or approval was granted by Mr Schofield on any occasion. Mr Schofield denied having given permission or approval for the works. While a number of conversations with Mr Schofield were detailed by Mr Alcock, and Mr Schofield was cross-examined on his recollection of those conversations, I am satisfied that the content of those conversations never reached an unequivocal ‘yes you may do that work’.
Mr Schofield gave evidence that he felt badgered by the applicant, who approached him at social occasions in order to pursue the matter, and he gave evidence that he may well have agreed with anything the applicant said in order to extricate himself from conversations. I am satisfied that while discussions between the applicant and Mr Schofield covered matters of design, and the obtaining of the aerial photograph which was to be written on and submitted, the history of those conversations is more consistent with arrangements being made to submit an application which was likely to gain approval than with permission having been granted. The ‘alright’ conversation cannot be relied upon as the moment in which approval was given, because there was a precondition for that approval which was not established.[37]
[37] Namely, that the applicant’s design solution was ‘alright with the contractors’
The depiction of the retaining wall upon one of a number of site plans prepared for the stormwater rectification project cannot be interpreted as both an application for approval and subsequent approval of that wall under section 15B of the RPP Act. Nor can the fact that the existence of the wall was taken for granted in subsequent discussions be interpreted as an after the event approval under section 9 of the RPP Act of the construction of that wall on public land.
There was no application for the terracing or concreting to be approved under section 15B, and I am satisfied no approval was granted under that section. Further, I am not satisfied on the evidence that there was a verbal approval under section 9 of the RPP Act given for those works by the appropriate person.
In conclusion I am satisfied that no permission was granted under the RPP Act for the works to be conducted, and consequently the works were not authorised for the PUL Act or the RPP Act.
(d) If the works constitute ‘damage’, and there is no prior approval, is it appropriate to grant approval now?
If the Tribunal found that there was no prior permission for the works, the applicant asked that the Tribunal, standing in the shoes of the decisionmaker, exercise the power under section 19 of the PUL Act to approve the works. Section 19 provides:
19Approval to carry out work on public unleased land
(1)A person may apply to the director‑general for approval (a work approval) to carry out work on public unleased land.
(2)On receiving an application, the director‑general must—
(a)give a copy of the application to each entity the director‑general considers should be consulted about the application; and
(b)tell each entity that they may give a written submission to the director‑general, not later than 15 working days after receiving the copy of the application, about—
(i)why the work should not be carried out; or
(ii)how the work should be carried out.
(3)If the public unleased land is a reserve, the director‑general must consult the conservator about the application.
(4)In deciding whether to issue an approval, the director‑general must consider—
(a)whether the work would be likely to—
(i)cause undue disturbance, inconvenience or offence to people lawfully on or near the public unleased land; or
(ii)cause undue risk to people or property; or
(iii)damage the public unleased land; and
(b)any submissions received under subsection (2).
(5)The director‑general may issue an approval only if reasonably satisfied that carrying out the work in accordance with the approval would not be likely to—
(a)unacceptably affect people lawfully on or near the public unleased land; and
(b)cause unacceptable risk to people, property or the public unleased land.
(6)An approval may be subject to any condition that the director‑general reasonably believes is necessary to—
(a)eliminate an effect or risk mentioned in subsection (5); or
(b)if the effect or risk cannot be eliminated—minimise the effect or risk.
The respondent argued that section 19 should not be employed by the Tribunal in this case, for a number of reasons. First, section 19 requires a public consultation process be undertaken, which had not occurred in this case. Indeed, section 19 requires a written application be made by the applicant, copies of which are to be provided to each relevant entity. No such written application has been made.
Secondly, the respondent submitted that the Tribunal would not be minded to grant approval given the clearly expressed views of the Directorate that it would oppose such works on the basis they constitute damage to the public unleased land which reduces the amenity of the land.
Thirdly, the respondent submitted that to approve the works would, at least in relation to the public land which has been subsumed behind the concrete block retaining wall, permit residential use in the PRZ1 zone – which is a prohibited use in that zone. The respondent submitted that section 50 of the Planning and Development Act 2007 prohibits the Director-General doing a thing inconsistent with the Territory Plan.
I did not consider that it was appropriate for the Tribunal to exercise powers under section 19 of the PUL Act. While an oral application had been made to the Tribunal, no written application had been received, such that the Tribunal would be able to comply with the consultation requirements. The practical difficulties in attempting to comply with consultation requirements while the Tribunal is engaged in review of a decision were highlighted in another context in Walkington & Ors and ACT Planning and Land Authority [2010] ACAT 81.
Accordingly, I declined to attempt any exercise of power under section 19 of the PUL Act.
(e) If the works are damage, and there is no approval, is the correct or preferable decision to issue a notice to remedy that damage, given the history of storm water and erosion issues in the area?
As noted above at paragraph 72, the applicant argued that the purpose of the works was to constitute necessary erosion and flood control measures. The applicant submitted that the overall consequence of the works improved the public land in a number of ways, by:
(a)reducing the risk of erosion;
(b)reducing the risk of flooding;
(c)reducing the risk of snakes;
(d)providing a safer surface for walkers; and
(e)providing a pleasing visual impact.
These factors, if made out, are all relevant to the exercise of the discretion whether or not to issue a direction to remedy the damage.
The applicant submitted that he undertook the works on the basis of perceived storm water and drainage issues and the Territory’s “lack of adequate, if at all, drainage and maintenance of the vacant land.” He argued that the common law allows property owners to take reasonable measures to protect their land and property from flooding. The applicant asserted that “TAMS have failed in their ‘duty of care’ to carry out work without causing damage to the applicant’s property, to that end still directing water flow into our property.”
I have read the reports of the experts listed and heard their oral evidence over a number of days, visited the site, viewed photographs and video footage of the area in question during periods of rainfall, and heard the accounts of the flooding on New Year’s Day 2007. From all of this evidence I am not satisfied that there is currently, or was at the conclusion of the stormwater rectification works in 2007, a physical situation whereby significant water flow is directed from public land into the applicant’s property. I am satisfied that there was such a physical situation in existence on New Year’s Day 2007, however I do not know whether this was due to the extent of runoff from Big Monks hill, the then slope of the public land towards the natural gully, the blockage of the stormwater drain, or a combination of these factors.
I am satisfied that each part of the works has either drainage, erosion control or flood mitigation effects. However, on the evidence of the experts only the construction of a retaining wall, in the nature of a ‘hob wall’, could be considered to be ‘necessary’ to address the issue of water flow towards the applicant’s property. The construction of the terrace gardens and the concrete strip were not, on the expert evidence, necessary measures, although they may have drainage, erosion or flood mitigation effects.
Most importantly, there was no evidence that it was necessary that the retaining wall, or indeed any of the works, be constructed on public land instead of on the applicant’s land or the boundary. I am satisfied that it was not necessary that either the retaining wall, or any of the other works, be constructed on public land in order to protect against the risk of flood or erosion.
The applicant gave evidence that the works had reduced the risk of snakes, provided a safer surface for walkers and provided a pleasing visual impact. This evidence was observational and a matter of subjective opinion. I am not satisfied that the concrete strip is objectively any ‘safer’ than the grass or dirt which was in existence at the end of 2007, and the visual amenity of the works is a matter of subjective opinion on which minds would differ.
Also relevant to exercise of the discretion is the nature and purpose of the land, and the use to which it is now put. The respondent submitted that, as a result of the works, use by the public of a large amount of public land is not possible. Having visited the site, I accept the submission that the area of land covered by the terraced garden is no longer easily accessible to the public. The asserted reason for the reduced use, being the need for erosion control or flood risk mitigation, was not established on the evidence.
I note that the area of public land located behind the retaining wall is entirely inaccessible. While the experts gave evidence that a ‘hob wall’ would be advisable to deal with the risk of stormwater or runoff entering the applicant’s property, there was no evidence that such a wall was required to be situated on public land rather than on the block boundary. The reason for the location of the wall, and the consequent assumption of a significant expanse of public land to the private use of the applicant, was human error.
While the applicant did not specifically raise this point, I have also had regard to the expense and effort the applicant must have expended in undertaking the works, and the consequent expense and effort which must be go into their removal. It seems to me that this is not an insignificant matter, although the applicant did give evidence that the works were superficial and could be removed easily.
The decision to issue a direction to repair land under section 21 of the PUL Act is discretionary. Weighing up all of the above factors, I am satisfied that the correct decision would be to issue a direction to repair the damage, if that power were available.[38]
(f) If it is appropriate to issue a notice to remedy, what should that notice require?
[38] I considered whether it might be possible for this Tribunal to make a direction in terms of that previously open under the RPP Act, perhaps utilising section 68(2) of the ACT Civil and Administrative Tribunal Act 2008. I decided not to do so, as the jurisdiction of the Tribunal is limited to that of the Director-General under section 21 of the PUL Act, while the power under section 14 of the RPP Act is exercisable by the Minister. I considered this to be too stark a difference to permit an approach similar to that adopted in Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115
The respondent had provided to the Tribunal a proposed direction by which it sought that the applicant return the public land to the condition it had been in in October 2007 at the conclusion of the flood mitigation works. This proposed direction was, in my view, inadequate given that the expanse of public land located behind the retaining wall had been assumed at an earlier date.
It is appropriate that the applicant be required to make good the damage, rather than the Territory restoring the site at the applicant’s expense. This is because the applicant’s property has been physically integrated with the assumed public land, and any attempt to resume the public land behind the retaining wall will impact upon the applicant’s landscaping and potentially the pool. This process is best undertaken by the applicant who can manage the impact of the works upon his own property.
Commonsense would suggest that the applicant be required to remove the works and restore the land under the terrace gardens and concrete strip to the 2007 levels, however it will be necessary to obtain expert advice as to the area behind the retaining wall. It may be that expert advice is that this area should not be returned to natural ground level, but instead be left at a level recommended by the engineers as necessary to ensure stormwater is directed to the concrete/rock drain.
Conclusion
In conclusion, I am satisfied that the works constituted ‘damage’, that they were not the subject of approval or permission, and that it would not be appropriate for the Tribunal to embark on a process of considering approving the works.
I am satisfied that the works perform some drainage, erosion or stormwater control functions and the retaining wall is a necessary structure, however I am not satisfied that it was necessary for any part of the works to be constructed on public land.
I am not satisfied that the works constitute an improvement to the public land in any objectively verifiable sense. I am satisfied that due to the works the purpose of the public land is detrimentally affected, and use of the land by the public is diminished. I am satisfied that the applicant will suffer loss if a direction is made to remove the works. I am not satisfied that removal of the works will leave his property exposed to an unacceptable risk of damage from floodwaters or erosion.
Balancing these factors, I am satisfied that the correct decision would be to direct that the works be removed and the damage repaired by the applicant, if the power to make such a direction was available to the Tribunal.
However, I consider that the correct interpretation of section 21 of the PUL Act is that it applies only in relation to damage to public unleased land caused after the commencement of that Act. In the current case, the works were undertaken before the commencement of the PUL Act, and fall under the RPP Act the operation of which is preserved for these purposes by section 84 of the Legislation Act 2001.
………………………………..
President M-T Daniel
HEARING DETAILS
FILE NUMBER: | AT 109/2014 |
PARTIES, APPLICANT: | Robert Alcock |
PARTIES, RESPONDENT: | Director-General Territory and Municipal Services |
COUNSEL APPEARING, APPLICANT | N/A |
COUNSEL APPEARING, RESPONDENT | Dr Jarvis |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | ACT Government Solicitor |
TRIBUNAL MEMBERS: | President M-T Daniel |
DATES OF HEARING: | 15, 16 June 2015; 10, 13 July 2015 |
2
7
0