Anderson v Lake Macquarie City Council
[2013] NSWLEC 96
•13 June 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Anderson v Lake Macquarie City Council [2013] NSWLEC 96 Hearing dates: 13 June 2013 Decision date: 13 June 2013 Jurisdiction: Class 2 Before: Preston CJ Decision: (1) The applicant's notice of motion for costs dated 26 March 2013 is dismissed.
(2) The applicant is to pay the respondent's costs in relation to the applicant's notice of motion for costs dated 26 March 2013.
Catchwords: COSTS - Council issued order to applicant requiring demolition and removal of a concrete seawall constructed on Crown land adjoining his land - applicant appeals to the Court - Council failed to comply with a precondition to the exercise of power to make an order requiring demolition and removal of the seawall - appeal upheld by Commissioner and Council's order revoked - applicant seeks an order that the Council pay his costs of the appeal - no order as to costs unless fair and reasonable in circumstances - whether Council acted unreasonably in circumstances leading up to the appeal - whether Council maintained a defence to the appeal where it did not have reasonable prospects of success and where to do so was unreasonable - whether Council's conduct rendered it fair and reasonable to make a costs order - the applicant succeeded only on one of the many grounds of challenge in the appeal - the applicant did not raise the ground of challenge that would have been determinative of the proceedings as a separate or preliminary question - the reasons for the Council's conduct in not complying with the precondition to the exercise of power to make an order were not so unreasonable as to found an order for costs - notice of motion for costs dismissed - applicant to pay respondent's costs on the notice of motion for costs Legislation Cited: Crown Lands Act 1989 Pt 5
Interpretation Act 1987 s 34(1)(b), 35(2)(a)
Land and Environment Court Act 1979 s 39(2)
Local Government Act 1993 ss 124, 126, 132, 153, 180
Land and Environment Court Rules 2007 r 3.7
Uniform Civil Procedure Rules 2005 r 28.2Cases Cited: Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323; (2007) 149 LGERA 360
Thaina Town (on Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 71 NSWLR 230Category: Principal judgment Parties: Mr Peter Anderson (Applicant)
Lake Macquarie City Council (Respondent)Representation: Mr T G Howard (Barrister) (Applicant)
Mr T F Robertson SC with Mr G W Long (Solicitor) (Respondent)
Mallik Rees (Applicant)
Lake Macquarie City Council, Corporate Legal Office (Respondent)
File Number(s): 21012 of 2012 Publication restriction: No
Judgment
Lake Macquarie City Council (the Council) issued an order under s 124 of the LocalGovernmentAct1993 (LG Act) to Mr Anderson that he demolish and remove a concrete seawall constructed on Crown land adjoining Mr Anderson's land at 21 Marks Parade, Marks Point. Mr Anderson appealed under s 180(1) of the LG Act against the order to the Court. On the appeal, the Court (Commissioner Morris) upheld the appeal and revoked the order.
The Commissioner held that the Court did not have the power to confirm the order by exercising any of the powers in s 180(4) of the LG Act because a precondition to the giving of the order under s 126 of the LG Act had not been satisfied. The Commissioner held that the order was in respect of Crown land (being Lots 7335 and 7336 in Deposited Plan 1156260) that was a reserve within the meaning of Pt 5 of the CrownLands Act 1989 (the land had been reserved from sale for the public purpose of public recreation). Section 126 of the LG Act provides that an order under s 124 may not be given "in respect of", amongst other land, "a reserve within the meaning of Part 5 of the CrownLandsAct 1989", without the prior written consent of the Minister responsible for administering the LG Act (s 126(1)). That Minister must not give his or her consent in respect of such a reserve until after the Minister has consulted the Minister administering the Crown Lands Act (s 126(2)).
The Commissioner found that the Minister had not given written consent prior to the Council giving the order under s 124 in respect of the Crown reserve in this case. The Commissioner found, therefore, that the precondition in s 126 of the LG Act had not been met. The Commissioner found that, as the Court was exercising the functions and discretions of the Council (s 39(2) of the LandandEnvironmentCourtAct1979), the Minister's consent needed to have been obtained but had not been. Accordingly, the Commissioner held that she could not confirm the order made and the order must be revoked ([38]).
Mr Anderson now seeks, by notice of motion dated 26 March 2013, an order that the Council pay his costs of the appeal.
The appeal under s 180 of the LG Act is within Class 2 of the Court's jurisdiction. Rule 3.7(2) of the LandandEnvironment Court Rules 2007 applies to all proceedings in Class 2 of the Court's jurisdiction. Rule 3.7(2) provides that:
The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances.
Rule 3.7(3) identifies, by way of example, circumstances in which the Court might consider the making of a costs order to be fair and reasonable. Mr Anderson relied on the circumstances in (c) and (f):
(c) that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings,
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(f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where:
(i)the claim or defence (as appropriate) did not have reasonable prospects of success, or
(ii)to commence or continue the claim, or to maintain the defence, was otherwise unreasonable.
Mr Anderson submitted that the Council acted unreasonably in the circumstances leading up to the appeal, within the meaning of r 3.7(3)(c), by giving an order under s 124 in respect of a reserve within the meaning of Pt 5 of the Crown Lands Act without complying with the condition precedent in s 126 of the LG Act of obtaining the prior written consent of the Minister.
Mr Anderson points out that the Crown land was a foreshore reserve, which had been dedicated for public recreation, with a width of between four to five metres between Mr Anderson's land and Lake Macquarie. The order required Mr Anderson to demolish and remove the concrete seawall on the reserve and restore the land on which the seawall was constructed in accordance with a plan attached to the order. This restoration would require excavation, the placing of a sloped rock rubble revetment, and course sand/pebble beach fill. Mr Anderson submitted that these works would have required a significant part of the reserve to be excavated, thus reducing the land size of the reserve and either removing or diminishing the capacity for that part of the reserve to be used for the purpose for which the land had been dedicated.
Mr Anderson submitted that for the Council to have purported to require such works to be carried out without attempting first to obtain the Minister's consent under s 126 of the LG Act was unreasonable conduct for the purposes of r 3.7(3)(c).
Mr Anderson submitted the Council, within the meaning of r 3.7(3)(f), maintained a defence to the appeal where the defence did not have reasonable prospects of success and where to maintain the defence was unreasonable. The failure of the Council to have obtained the written consent of the Minister under s 126 of the LG Act meant that the Council's defence to the appeal against the order was hopeless and doomed to fail.
Mr Anderson submitted that the Council could not avoid the effect of the limitation in s 126 (which applies to giving orders in respect of, amongst other Crown land, a reserve within the meaning of Pt 5 of the Crown Lands Act) by reference to the heading to the section (which refers to "Giving orders to public authorities"). Mr Anderson submitted this was not a reasonably arguable position for the Council to have taken having regard to s 35(2)(a) of the Interpretation Act 1987 (which provides that a heading to a provision of an Act is not part of the Act).
Mr Anderson accepted that it would be permissible to have regard to the heading as extrinsic material if the provision was ambiguous or obscure (s 34(1)(b)(i) of the Interpretation Act), but s 126 is not ambiguous or obscure. The words "in respect of" are a broad import: see Residents Against Improper Development Inc vChase Property Investments Pty Ltd [2006] NSWCA 323; (2007) 149 LGERA 360 at 399 [180]. They merely require some connection or relation between the two subject matters to which the words refer, namely, in s 126, between the order and the specified types of Crown land. In this case, the order required things to be done on the Crown reserve. This provides a sufficient connection or relation. Hence, s 126 applied to the order in this case.
Mr Anderson submitted that, in addition to these circumstances within r 3.7(3)(c) and (f), there are other circumstances which make it fair and reasonable to order costs. Mr Anderson gave prior notification to the Council in his statement of facts and contentions dated 24 November 2012 of his contention that the order was not lawfully made. The particulars stated that the Council had failed to comply with the precondition in s 126 of the LG Act prior to the issue of the order.
Mr Anderson submitted that the nature of the proceeding was an appeal against a statutory order that imposed a significant burden on Mr Anderson and compliance with the order would involve significant expense. This is a relevant factor to take into account: Thaina Town (on Goulburn) Pty Ltd vCity of Sydney Council [2007] NSWCA 300; (2007) 71 NSWLR 230 at [73]. The appeal against a statutory order is of a different nature to an appeal with respect to a development application where the applicant is seeking some form of privilege.
Mr Anderson submitted that it is fair and reasonable to order costs in favour of a citizen appealing against an order under s 124 of the LG Act where: the Council did not have the statutory power to issue the order by reason of a failure to satisfy a condition precedent to the exercise of the power; the citizen told the Council prior to the hearing of the appeal that the Council did not have the power to issue the order and why; the position of the citizen as to lack of power on the part of the Council to issue the order was plainly correct; and the Council nevertheless decided to defend the appeal and press the order as if the order were valid.
Mr Anderson, therefore, submitted that the Council should be ordered to pay his costs of the whole of the proceedings or, in the alternative, on or after 24 November 2012 when Mr Anderson filed his statement of facts and contentions.
The Council submitted that the Court should make no order as to costs. First, the issue of whether there had been non-compliance with s 126 of the LG Act by failing to obtain the prior written consent of the Minister to the Council giving an order under s 124 of the LG Act was but one of the issues that had been raised by Mr Anderson and that was contested at the hearing of the appeal. Mr Anderson raised other points challenging the validity of the order as well as merit issues concerning the terms of the order and whether it should be made in the exercise of the Court's discretion. Mr Anderson did not isolate the s 126 validity point and ask that it be separately determined. In fact, he argued several validity points, all but one of which he lost, as part of the hearing of all matters in issue, including the merits of making the order. Most of the two days of the hearing was devoted to Mr Anderson's crossexamination of the Council's expert and submissions as to why, on the merits, Mr Anderson should not be visited with an order. The fact that the s 126 validity point was determined as part of the merit dispute supports the presumption in r 3.7(2) of no order as to costs, not its displacement.
Secondly, the Council submitted it is relevant to take into consideration the fact that Mr Anderson was unsuccessful on every other issue which he contested.
Thirdly, the Council submitted that the nature of the appeal, having regard to the scope and purpose of the legislative scheme within which the appeal is found, is a neutral consideration. Council pointed to the requirement in s 132 of the LG Act for notice to be given of a proposed order under s 124 (in response to which in this case Mr Anderson made no representation that an order would be invalid for want of Ministerial consent under s 126); the power under s 153 of the LG Act to revoke an order at any time (although Mr Anderson never sought for the Council to exercise the power of revocation on the ground on which Mr Anderson succeeded before the Commissioner); and the fact that the Court has a wide discretion under s 180(4) of the LG Act to revoke, modify, substitute, etc the order as the Court thinks fit.
Fourthly, the s 126 validity point on which Mr Anderson succeeded was not so obvious that it was unreasonable for the Council to defend the appeal so as to maintain the order made by the Council. The Council submitted there was a real question as to whether s 126 did apply to the order given by the Council under s 124 of the LG Act. The Council put this argument as to construction in two ways. First, the power to give an order under item 28 of the table to s 124 is to do the things specified in column 1, including repairing damage to a "public place". Section 126, on the other hand, limits the giving of an order under s 124, without the prior written consent of the Minister, in respect of, amongst other types of Crown land, "a reserve within the meaning of Part 5 of the Crown Lands Act1989."
The Council submitted that the "public place" in respect of which the order was given to repair damage to it, was not the Crown reserve as such, but rather the foreshore of Lake Macquarie, which was outside of the Crown reserve. Hence, the Council submitted, there was a real question as to whether the order was given "in respect of" the Crown reserve or the foreshore of the lake, so as to enliven the requirement in s 126 to obtain prior Ministerial consent to the giving of the order.
The second way the Council put its argument was that there is an ambiguity in s 126(1) of the LG Act as to whether an order is "in respect of" that land because it requires work to be done on it or, on the other hand, is only in respect of the "public place", which is the subject of damage in column 1 of item 28 of the table to s 124. This ambiguity as to the meaning of s 126 allows reference to extrinsic material, which can include the heading to s 126: see s 34(1)(b) of the Interpretation Act.
Although the heading does not directly resolve that ambiguity, the Council submitted it certainly confines the scope of an order to a public authority. The ambiguity is resolved, the Council submitted, to this extent: the words "in respect of" are deliberately general, and may extend beyond the "public place" referred to in column 1, because the limiting factor in the order is that its recipient must be a public authority. That enables a broad scope to be given to the identification of the land to which an order falling within s 126 relates because it is otherwise confined to a public authority.
Alternatively, the Council submitted reference could be made to the heading as extrinsic material because the ordinary meaning conveyed by the text of the provision leads to a result which is manifestly absurd or unreasonable: see s 34(1)(b)(ii) of the Interpretation Act. The Council submitted that it would be unreasonable in practice to require a Council to obtain Ministerial consent every time it requires, by an order under s 124, a private person to do something on a Crown reserve. There is already a check in that the owner or manager of the Crown reserve would have to consent to the person doing the work on the Crown reserve, otherwise the person would be trespassing on the Crown reserve. A further check of Ministerial consent to the making of the order is not required. Only if the order is given to the public authority who is the owner or manager of the Crown reserve would this check be insufficient. In this circumstance, s 126 is needed so as to require Ministerial consent to the giving of an order to such a public authority.
Hence, the Council submitted that its argument that s 126 did not apply to the order in this case, because the order in respect of the public place was given to Mr Anderson and not a public authority, was not unreasonable.
Mr Anderson submitted in reply that the first way the Council submitted that s 126 may not have applied to the order in this case had not been argued before the Commissioner and that the second way was hopeless or doomed to failure as there was no ambiguity in s 126 enabling consideration of the heading to s 126.
Mr Anderson also submitted in reply that, although he had made no application to the Court for the s 126 point to be heard and determined separately from all other issues on the appeal, this simply meant that he could not rely on the circumstance in r 3.7(3)(a) in support of his argument that there be an order for costs; it did not disentitle him from relying on the circumstances in r 3.7(3)(c) and (f).
I do not consider that the making of a costs order as to the costs of this appeal is fair and reasonable in the circumstances, essentially for the reasons given by the Council in its submissions.
First, the issue concerning non-compliance with s 126 of the LG Act was only one of the issues raised and contested on the appeal. The Council put in issue, by its statement of facts and contentions, questions of law and fact relating to the requirements of item 28 of the table to s 124. These included that the concrete seawall constructed on the Crown reserve was causing damage to a public place because of its effect on the natural ecosystem and processes of the foreshore of Lake Macquarie, and that Mr Anderson was a person to whom an order could be given because he was entitled to the benefit of the structure as the owner of the adjoining allotment.
Mr Anderson in his statement of facts and contentions raised additional facts and contentions to those raised by the Council and rebutted the Council's contentions. Mr Anderson contended:
1. The order was not lawfully made or served, not only because of the failure to comply with the requirement for Ministerial consent under s 126 but also because of the failure to comply with the requirement in s 132 for giving notice of the proposed order.
2. The Council failed to give due notice of the person to whom representations were to be made by Mr Anderson or proper consideration of the representations made by Mr Anderson in response to the notice under s 132, in that the time to make representations was insufficient and the notice required the representations to be made to the Senior Building Surveyor when the office was vacant and there was no one to receive Mr Anderson's representations.
3. The order was invalid as:
(a)Mr Anderson was not a person within any of the categories of person to whom an order could be given under column 3 of item 28;
(b)there was no actual or likely damage to any public place under column 2 of item 28;
(c)there was no power under column 1 of item 28 to require Mr Anderson to 'restore' the public place in the matter prescribed by para (b) of the order or to carry out works which improve the public place;
(d)Mr Anderson was not the owner of the structure and did not benefit from it.
4. The time for compliance with the order and the terms of the order were unreasonable.
5. The Court in the exercise of its discretion should not grant the order.
6. Compliance with the order would cause more damage to the public place than if the seawall was removed.
7. The order was unreasonable.
The parties filed and served documentary evidence addressing the questions of fact and law raised by them in their respective statements of facts and contentions. In addition, the Council called an engineering expert. All issues, both legal and factual, were tried together. There was a view of the site and a two-day hearing. The Council's expert was examined and crossexamined.
The Commissioner reserved her judgment at the conclusion of the two-day hearing. The Commissioner's decision was not in favour of Mr Anderson on any issue other than the question of failure to comply with the requirement for Ministerial consent under s 126 of the LG Act. The Commissioner rejected Mr Anderson's challenges to the validity of the order relating to the requirements in item 28 of the table to s 124, holding instead that the preconditions to the order had been met. The Commissioner made findings of fact on these requirements in item 28 that supported the giving of the order. The Commissioner did not determine Mr Anderson's challenges relating to the notice of the proposed order under s 132 of the LG Act.
Although determination of the s 126 validity point was, in the end, determinative of the proceedings, Mr Anderson had not applied for that question to be dealt with separately from other issues in the proceedings (as he could have under Pt 28, r 28.2 of the UniformCivilProcedureRules2005) or that the issue be dealt with at the hearing as a preliminary issue before all other issues were tried. Instead, the s 126 validity question was dealt with along with all other issues and there was an evaluation of the merits of the making of the order.
It is true, as Mr Anderson submitted, that this meant that the circumstance in r 3.7(3)(a) was not enlivened but this did not disentitle Mr Anderson from relying on the other circumstances in r 3.7(3)(c) and (f). However, it does affect whether it would be fair and reasonable to depart from the presumption in r 3.7(2) that there be no order as to costs. In circumstances where all issues, legal and factual, were heard and determined at the hearing over two days, it may not be fair and reasonable to order the party that was unsuccessful on only one issue (which occupied a fraction of the hearing) to pay all of the costs of the party that was successful on that one issue but not on all other issues. The hearing on that one issue in this case took ten or so minutes out of a two-day hearing.
Other legal and factual issues raised and pressed by Mr Anderson on the hearing were also potentially determinative of the appeal. The issues raised by Mr Anderson in his contentions 1, 2, and 3, if they had been determined in his favour, would have been determinative of the appeal. However, the Commissioner determined the issues in contention 3 against Mr Anderson and did not determine the other issues in contentions 1 and 2 in relation to the notice of the proposed order under s 132 in favour of Mr Anderson. The potentially determinative nature of the issues raised by Mr Anderson does not mean that, because they were not resolved in Mr Anderson's favour, an order for costs should be made against him. They too were part and parcel of the hearing of the appeal and do not justify a costs order.
Secondly, the Council's argument that s 126 did not apply to an order under s 124 of the LG Act given to an owner of private land adjoining a Crown reserve was not so unarguable as to make it unreasonable for the Council to have made the s 124 order without obtaining the prior Ministerial consent under s 126 or to have defended Mr Anderson's appeal against the order. It may be that the Council did not put its argument before the Commissioner at the hearing in both the ways or as articulately as it did on the hearing of this costs application. Yet, the argument that s 126 did not apply to the order made by the Council under s 124 was squarely raised. The question is whether it was unreasonable for the Council to have taken the view that s 126 did not apply to the order it gave under s 124 without obtaining Ministerial consent under s 126, and to have defended the appeal. This involves considering the argument itself, not just how it was run before the Commissioner.
The Council's argument was that s 126 applied where the s 124 order is given to the person who owns or has the care, control and management of the Crown reserve and requires that person to do the things specified in the order. In this case, the Council did not give the order to such a person, but instead gave it to the owner of private land adjoining the Crown reserve (Mr Anderson) and required him to do the things specified in the order. The Council's argument was that an order to the owner of private land requiring that person to do things on the Crown reserve to repair damage to the public place of Lake Macquarie and its foreshores adjoining the Crown reserve did not answer the description in s 126 of an order "in respect of" the Crown reserve.
The Commissioner, by her determination, implicitly rejected the Council's argument. However, I do not consider that the Council's argument was so hopeless, in the ways submitted on the costs hearing, as to make the Council's conduct in making the s 124 order in the first place without having obtained Ministerial consent under s 126, or defending the appeal against the order, so unreasonable as to fall within r 3.7(3)(c) or (f).
For these reasons, I do not consider it fair and reasonable in the circumstances of this appeal to make an order for the payment of costs of the appeal. Mr Anderson's notice of motion for costs should, therefore, be dismissed.
The Council applies for an order for costs in relation to Mr Anderson's motion for costs. Ordinarily, costs follow the event for a costs application, notwithstanding that such an application is made within proceedings in Class 2 of the Court's jurisdiction. This is because they involve a separate question, of a different nature, to the issues involved in the substantive Class 2 appeal. The parties accepted this position. I consider that it is fair and reasonable for Mr Anderson to pay the Council's costs of his unsuccessful application for costs.
Accordingly, I make the following orders:
(1) The applicant's notice of motion for costs dated 26 March 2013 is dismissed.
(2) The applicant is to pay the respondent's costs in relation to the applicant's notice of motion for costs dated 26 March 2013.
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Decision last updated: 05 July 2013
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