Archibuild Australia v Sydney City Council

[1988] NSWLEC 127

Land and Environment Court

of New South Wales

CITATION:

Archibuild Australia v Sydney City Council [1988] NSWLEC 127

PARTIES:

APPLICANT
Archibuild Australia

RESPONDENT
Sydney City Council

FILE NUMBER(S):

20625 of 1987

CORAM:

Holland J

KEY ISSUES:

:-

LEGISLATION CITED:

Local Government Act

CASES CITED:

DATES OF HEARING:

26/02/1988

DATE OF JUDGMENT:

07/15/1988

LEGAL REPRESENTATIVES:

APPLICANT
Mr. Ken Patteson
RESPONDENT
Mr. Schofield

JUDGMENT:

HIS HONOUR: The respondent Council appeals to the Court against orders made on 26 February 1988 by an Assessor on an application filed by the Applicant on 24 December 1987.

The application stated that it was brought under s.3l7M of the Local Government Act and was against the Council's refusal of a building application in respect of a block of land at Erskineville.

Annexed were copies of the Applicant's building application dated 4 October 1987, the building plans and a letter from the Council dated 27 November 1987 disapproving the plans. No other documents were filed with the application.

The plans showed a single residence proposed to be erected on a narrow allotment and included a site plan showing the distance of the walls from the boundary lines.

The Council's letter stated that the plans were disapproved as they did not comply with "Council's requirements and Ordinance No. 70 in that the proposed dwelling has been set back from 200mm to approx. 900mm from the southern boundary and 200mm from the northern boundary of the allotment in lieu of being set back 900mm as required by Clause ll.6(2) of Ordinance 70". The set backs shown by the site plan were as described by the Council and, obviously, did not conform with the requirements of clause ll.6(2) of the Ordinance that there be a minimum of 900mm. The Council's letter went on to note that the exceptions to this requirement contained in the clause were not applicable.

The application was endorsed by the Registrar with a notice that the hearing would take place before an Assessor on 26 February 1988 and that if there was no attendance the hearing may take place and orders be made in a party's absence. A notice of hearing was issued and this advised the applicant of the requirement for service, including that service would be effected by personally delivering a copy to the Town Clerk and a note of particulars of service should be made by the server on the copy retained.

The application came before an Assessor for hearing on 26 February 1988. Mr. Ken Patteson appeared before the Assessor to represent the applicant. He described himself as a consultant in design and construction management, is the Managing Director of the applicant and has himself conducted the building application and the application to this Court and appeared on all occasions including the present appeal. There was no appearance for the respondent Council before the Assessor.

The Assessor proceeded with the matter in the absence of any representation for the Council and heard evidence and explanations from Mr. Patteson about the plans and the reasons for the set backs shown on the site plan. There is a transcript of the proceedings before the Assessor, the accuracy of which is accepted by both sides. It is annexure "C" to the affidavit of Paul James Schofield, l5 June l988. The transcript makes it clear that the only question to be determined by the Assessor was whether clause ll.6(2) of Ordinance 70 should apply. Mr. Patteson is recorded as saying to the Assessor at the end of the proceedings, "we'd seek a waivering of those clause ll.6(2) of Ordinance 70". The Assessor indicated that he would accede to that request and made orders that the application be upheld and that in respect of the building application clause ll.6(2) of Ordinance No. 70 under the Local Government Act, 1919 not apply.

The Council, claiming that it was never properly served with the application, was unaware that it had been made, was not aware of the date of the hearing, would have appeared and opposed the orders sought if it had been aware and would still oppose them if allowed to be heard, successfully applied to the Court for an extension of time to appeal against the orders. On 8 July l988 Hemmings J. extended the time for appeal and expedited the hearing so as to enable the matter to be resolved as soon as possible in view of the long delay since the Council had refused the building approval.

Being an appeal to the Court from orders of the Court made by an Assessor, s.56A of the Land and Environment Court Act, 1979 restricts the subject matter of appeal to questions of law.

Whilst a number of issues emerged, Mr. Schofield, on behalf of the Council, contended that the Assessor had made two errors in matters of law that would require the Assessor's orders to be set aside, the first of which would also require the applicant's original application to be dismissed and the second of which would at least require the matter to be remitted to the Assessor for a rehearing. As, in my opinion, the Council has demonstrated that both errors were made, there is no need to deal with other issues.

The first error concerns the jurisdiction of the Assessor to entertain the application at all. As mentioned, the application expressly stated and proceeded before the Assessor on the basis that it was made under s.3l7M of the Local Government Act which provides as follows:-

"(l) An applicant for an approval may lodge with the council an objection that the ordinances relating to the erection of buildings do not make appropriate provision with respect to the erection of the building the subject of the application or that compliance with any provision of those ordinances is unreasonable or unnecessary in the particular circumstances of the case.

(2) Any such objection shall be referred to the Land and Environment Court which, if it is of the opinion that the objection is well founded and that the building would be of a satisfactory construction if a direction were to be given under this subsection, may, by instrument in writing, direct that -

(a) such provisions of any ordinance relating to the erection of buildings as are specified in the direction -

(i) shall not apply; or

(ii) shall apply with such modifications as are specified in the direction,

in respect of the erection of that building; or

(b) such requirements as are specified in the direction shall apply to the erection of the building,

or give directions under both paragraphs (a) and (b) of this subsection.

(3) Any direction given by the Land and Environment Court under subsection two of this section shall, if the council's approval to the application for the erection of the building referred to in the direction is given, have effect according to its tenor and, in the case of a direction referred to in subparagraph (ii) of paragraph (a), or in paragraph (b), of that subsection, be embodied in that approval as a condition thereof."

The Council contends that the jurisdiction of the Court under this section may be invoked only if an applicant for building approval has first lodged with the Council an objection expressly claiming that some specified ordinance relating to the erection of buildings does not make appropriate provision or that some specified provision made is unreasonable or unnecessary as mentioned in the section.

It is claimed that no such objection has ever been lodged with the Council, none was ever referred to the Court and none was before the Assessor who purported to deal with the matter.

The Council submits that an ordinary application for building approval is not the lodgment of an objection under the section simply because it discloses a proposal in conflict with the requirements of some provision of some building ordinance. Therefore, the building application here was not an objection under s.3l7M, no such objection existed, the Court had no jurisdiction to entertain the application and the Assessor was in error in purporting to deal with it.

Mr. Patteson argued that the building application he lodged with the Council for approval in this particular case was patently non-conforming with clause ll.6(2) of Ordinance 70 and that the site plan of the building by its very nature demonstrated objection to the set back provisions of that clause. He relied on the fact that no special form of objection was laid down for s.3l7M to submit that the objection could be implied from the nature of the building proposed by an application for building approval and submitted it was an obvious implication in the present case. Accordingly, he submitted that the Assessor did not err in treating the application as an objection under s.3l7M.

Although it appears that no form has been established for objections under s.3l7M, and one does not go out of one's way to look for or require unnecessary forms and technicalities to be observed by members of the public seeking local government approvals, I think that the provisions of the section necessarily imply the need for some formalities of expression and precision for its operation to be set in train.

An applicant is required to "lodge" an objection which, in the context, would commonly import delivering something in writing. Then, as the section applies to all ordinances relating to the erection of buildings, there is a need to specify which ordinance or provision in order to identify the subject matter of the objection and, further, as there is a distinction made in the section between ordinances inappropriate and provisions compliance with which is unreasonable or unnecessary, an indication of the nature of the objection being made is called for.

As the whole purpose of an objection under the section is to have it referred to the Court (the Council has no power to uphold the objection or dispense with the provisions to which objection is to be made) it has to be clear that this is what the applicant is seeking, and as it is the section itself that gives the Court its jurisdiction, the form of the objection needs to demonstrate by express reference to the section or some other means equally clear that the intention is to invoke that specific jurisdiction. For these reasons, I cannot accept Mr. Patteson's submission that the building application he lodged constituted an objection under s.3l7M.

Subsection (3) of the section indicates that the intention was that the Court's jurisdiction to make orders relieving the applicant from compliance with the provisions of a building ordinance might be sought and exercised in advance of the Council's consideration of the total building application thereby avoiding an inevitable refusal for non-compliance. This reinforces the view that a separate and specific form of objection is required to be made to procure the operation of s.3l7M and a building application made without such form of objection is not open to be treated as an objection under the section.

In my opinion, on the undisputed evidence, no objection within the meaning of s.3l7M, was ever lodged with the Council or referred to the Court with the consequence that there was no foundation for the jurisdiction that the Assessor purported to exercise. In purporting to hear and determine the application the Assessor assumed powers that he did not legally possess and that was an error of law to correct which the appropriate orders of the Court will be to allow the Council's appeal, set aside the order made by the Assessor and dismiss the applicant's application.

Whilst this conclusion makes it unnecessary to consider the second error of law claimed by the Council, the Court should deal with it.

Mr. Schofield, on behalf of the Council, described it as an error of procedural law that resulted in the Council being unlawfully deprived of an opportunity to be heard. As I have said, the Council claims to have been unaware of the application or the hearing.

It is common ground that the only document on the Court's file was the application which I have already described. It follows that there was no appearance or affidavit of service and nothing else to indicate to the Assessor that the Council knew of the proceedings or the date of hearing.

According to the transcript to which I have referred, the Court Officer announced at the commencement of the proceedings that there was no appearance by the Sydney City Council and thereupon the Assessor at once invited Mr. Patteson to proceed with the applicant's case and he did so. It is plain from the transcript that the Assessor did not turn his mind at all to the question of service or, if he did so, made no mention of it and made no enquiries of Mr. Patteson or otherwise as to evidence of service or reasons for the Council's absence from the hearing.

Part VII of the Land and Environment Court Rules contains provisions for the service of proceedings in rule 3. Rule 5 of that part provides:-

"Except with the leave of the Court no hearing.... shall take place in respect of any proceedings unless the Court is satisfied that the application commencing the proceedings has been served as required by rule 3(3) or that notices have been sent as required by rule 3(4)."

Part VIII of the Rules contains rule 5 which, so far as material, provides by subsection (l) -

"Where service of any document has not been personal, and the Court is satisfied on the evidence before it that the service did not come to the knowledge of the party within a reasonable time, or on that evidence is in doubt, the Court shall not allow any fresh steps in the proceedings to be taken against the party, but shall adjourn or strike out the proceedings or order fresh process to issue, as to it may seem just."

Rule ll of that Part provides, so far as material, that personal service on a corporation may be effected by delivering a copy to, inter alia, the town clerk.

Mr. Patteson claimed before me that, having previously told the Council's Special Projects Engineer who had processed his building application that he intended to lodge an appeal to this Court, he telephoned the Council on 24 December 1987 and left a message for the Engineer that the hearing was set down for 26 February 1988. Of course that was Christmas Eve when a telephone message may easily go astray or be forgotten. Anyway, it was not service of notice, personal or otherwise. Then Mr. Patteson claimed he had delivered the application and accompanying documents with notice of the hearing date endorsed thereon to the Council's offices on 12 January 1988 and, on being advised that the Engineer was not available, left the documents with the Reception Desk Clerk, telling her they were important for the Engineer to receive. Mr. Patteson says he made a note on the documents to the effect that they were left for the Engineer at the reception desk on that day.

The Engineer's evidence is that, although he had made a note that an appeal was to be lodged on 24 December 1987, he had no recollection of any telephone message that day and that he did not receive or see the application documents until the copies were shown to him in May 1988 and there were none in the Council's files. Mr. Patteson did not seek to challenge the Engineer's evidence.

Mr. Schofield did not seek to dispute Mr. Patteson's assertions about service and did not seek to have him give evidence or be cross-examined before me because, on his argument, the assertions were not relevant or necessary to be investigated on this appeal.

His argument was that it was sufficient to show that the Assessor, contrary to Part VII, Rule 5, failed to satisfy himself that service had been effected or give leave to the applicant to proceed because the result of that was that no hearing of the application could lawfully take place. He submitted that, on the evidence, the only conclusion open was that the Assessor paid no attention to the question of service and that no question of leave to proceed was ever considered by him. He submitted that, in such case, it is not necessary for a respondent to establish that, in fact, service had not been properly effected on him.

Mr. Patteson submitted that the Assessor's orders should not be disturbed on this ground because what he had done in delivering the documents to the offices of the Council was sufficient service to bring the proceedings to the notice of the Council and that his client should not have to suffer because of failure by Council's staff to see that the proper officer received the documents.

The giving of proper notice of the proceedings to the other side is an essential element in the due administration of justice. There are well known exceptions in special cases that may be left aside; but it is elementary justice that all parties affected have the opportunity to be heard. The rules of natural justice applicable to matters of procedure by tribunals insist upon proper notice to all parties. In this Court there are express rules designed to require whoever constitutes the Court for a hearing, call over or conference to give attention to the question whether due and reasonable notice of the proceedings has been given to other parties. I have already referred to these rules.

The importance of Rule 5 Part VII need not be laboured. In terms it prohibits the Court from proceeding with a hearing unless the Court is satisfied of due service or gives leave to proceed. There is a positive duty to be satisfied and, if not satisfied, to consider whether leave should be given and if it be decided that leave should not be given, not to proceed. When all parties appear, satisfaction as to service is automatic; but when any party fails to appear, the alarm bells should be sounding, equally automatically, for the Court to inquire as to whether the party was served. Usually the party desiring to proceed will be able to prove service and will be called on to do so; but the Court has the duty of being satisfied with the proof offered and, if not satisfied, the duty not to go on with the hearing until satisfied or, having duly considered the question, granting leave to proceed. The Court is not bound to embark on its own inquiries as to reasons for the absence of a party; but in practice, the othe

r party will usually oblige for the sake of enabling the matter to proceed or be otherwise dealt with. In some cases it will be appropriate for a request to be made of the Registrar or the Court staff to make inquiries. The circumstances will vary but whatever the steps taken the Court is required by the rule to take the initiative. It is the duty of the Court to look for satisfaction as to service or, if there are sufficient grounds, to give leave to proceed in the absence of such satisfaction.

As to what the Assessor did in the present case, I am dependent on the absence from the file of any documents indicating that the respondent had been served, the transcript of the proceedings before him that is in evidence and the very proper attitude of Mr. Patteson in readily agreeing that the transcript correctly shows what took place. It is enough to say that it appears that, by inadvertence, the Assessor omitted to inquire as to service and had no material before him upon which he could have been satisfied as to service or formed a conclusion that leave to proceed should be given notwithstanding absence of satisfaction as to service. On the evidence, it would seem that the need to look for proof of service before proceeding ex parte simply slipped his mind. I must conclude that there was an inadvertent failure by the Assessor to perform the duty imposed on the Court by rule 5 of Part VII and the question is what follows from that.

The first question is whether a failure to comply with the rule renders an order or decision made in the proceedings liable to appeal under s.56A of the Land and Environment Court Act. Does an appeal against the orders made here by the Assessor on the ground of such failure constitute an appeal on a question of law?

In my opinion it does. The duty to ensure that due notice has been given to a party, whether considered as arising expressly from the rule of Court here in question or in relation to the requirements of the rules of natural justice, is directed to the attainment of procedural propriety and fairness and may be said to be unrelated to the correctness in point of law of any order or decision made by the tribunal; but the question whether the duty has been performed in the particular case and the question what effect the failure to perform it should have on any orders or decisions made in the proceedings are, in my view, properly characterised as questions of law: Escobar v. Spindaleri (1986) 7 N.S.W.L.R. 5l at 57, 59. In my opinion, the present appeal is a proper appeal on a question of law within the meaning of s.56A.

The effect on orders made after non-compliance is the next question. Mr. Schofield's argument involves the proposition that any order or decision is invalidated if the rule is disobeyed, and the rule is disobeyed if the Court failed to perform the act of satisfying itself as to service or giving leave to proceed. Therefore, an order would be invalidated even if there was in fact due service and the party simply decided not to attend the hearing.

In my opinion, that is not the proper effect to give to non-compliance with the rule. Failure to comply will ground an appeal on a question of law as I have already held; but the remedy, if any, to be given by the Court on the appeal will depend on the circumstances of the case. As the plain object of the rule is to ensure procedural propriety and fairness it does not necessarily follow that the decision made in the proceedings must be set aside in order to do justice to a party for whose protection the rule is designed. For example, if it could be shown that the party was in fact served or otherwise had adequate notice of the proceedings, deliberately chose not to attend and suffered no disadvantage by the failure to comply with the rule, it would, I think, be open to the Court to let the decision stand by making no order on the appeal. That would not seem to me to be in disconformity with the rule and would appear to be a proper exercise of the Court's power under s.56(2)(b) whereby the Court is empowered t

o make such order in relation to the appeal as seems fit.

On the evidence before the Court in the present case, I have no reason to doubt the evidence of the Council's Engineer that notice of the proceedings and the hearing date never reached him, that no such notice appears in the Council's files and that no relevant officer of the Council had notice of the proceedings. If at the hearing an inquiry had been made of Mr. Patteson about service and he had given the same account as in evidence now, as I am sure he would have done, that account may well have, in my own view, should have, raised a doubt as to whether the attempt at service had succeeded in reaching a responsible officer of the Council, reinforced by the failure of any such officer to attend the hearing. It would, of course, have been for the Assessor to decide whether he was satisfied or should have inquiries made as to the Council's absence; but I am left not only with the belief that the Council did not know of the proceedings but also with the impression that if the Assessor had turned his mind to the

question he probably would not have been satisfied as to service, or, at least, would have had inquiries made which readily would have revealed the Council's ignorance and led him to refrain from proceeding with the hearing.

Therefore, if the Council had failed on its first point, I would on the present question have allowed the appeal, set aside the Assessor's orders and remitted the proceedings to him for a re-hearing according to law.

I raised with the parties the question of what could be done to enable the applicant to obtain a speedy resolution of the long delayed building application, including the objection to the relevant ordinance. Both sides agreed to co-operate for that purpose, the applicant to prepare and lodge the s.3l7M objection, the Council to refer it to the Court and also to deal otherwise with the building application, bearing in mind that the Council's refusal of 27 November 1987 stated that the plans did not comply with Council's requirements other than those of Ordinance 70, and that it may be possible to have any other outstanding disputes dealt with by the Court at the same time as the s.3l7M objection. I am confident that the Registrar, with the co-operation of both parties will do what can be done to speed the fresh applications to an early hearing.

On this appeal, the orders of the Court are:-

l. Appeal allowed.

2. Orders made by the Court on 26 February 1988 set aside.

3. Applicant's application filed 24 December 1987 dismissed.

4. Appellant Council's costs of the appeal to be paid by the Respondent (Applicant).

5. Respondent (Applicant) to have an indemnity certificate under the Suitors' Fund Act in respect of such costs.