Barnes v Dungog Shire Council

[1999] NSWLEC 146

Land and Environment Court

of New South Wales

CITATION:

Barnes v Dungog Shire Council [1999] NSWLEC 146

PARTIES

APPLICANT:
Barnes

RESPONDENT:
Dungog Shire Council

NUMBER:

10054 of 1999

CORAM:

Talbot J

KEY ISSUES:

Orders :- validity of council order under s 121B EP&A Act

LEGISLATION CITED:

Environmental Planning and Assessment Act s 121B - s 121K

DATES OF HEARING:

06/03/1999

DATE OF JUDGMENT DELIVERY:

06/21/1999

LEGAL REPRESENTATIVES:

APPLICANT:
Mr I Hemmings (Barrister)

SOLICITORS:
Stacks, The Law Firm

RESPONDENT:
Mr T Bates (Barrister)

SOLICITORS:
Borthwick Wilson & Mitchell

JUDGMENT:

IN THE LAND AND Matter No. 10054 of 1999
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 21 June 1999

John Barnes
Applicant

v
Dungog Shire Council
Respondent

REASONS FOR JUDGMENT


1. On 31 August 1998 the respondent council forwarded to the applicant John Barnes a notice of its intention to serve an order under s 121 of the Environmental Planning and Assessment Act 1979 (the EP&A Act). Correspondence and a meeting between representatives of the two parties took place. Amongst other issues discussed was whether the applicant had the benefit of existing use rights to carry on the activity about which the council was concerned. On 28 September 1998 a formal order was served. However, on 21 October 1998 the respondent informed the applicant’s representative that the order had been placed on “hold” pending receipt of a proposed development application and satisfactory evidence of existing use rights.

2. It should be noted at the outset that the council at all times has referred to s 121 in relation to the relevant order, whereas the correct reference is 121B. No issue is now taken in this regard.

3. On 17 December 1998 the council forwarded a further notice of intention to serve an order to the applicant.

4. The notice advised the applicant that the terms of the proposed order will be that the applicant, as the owner and occupier shall:-


1. Cease using the premises as a ‘Bulk Store’. Bulk Store is defined under the Environmental Planning and Assessment Act Model Provisions 1980 as “Bulk Store” means a building or place used for the bulk storage of goods, where the goods stored or to be stored are not required for use in a shop or commercial premises on the same parcel of land or on adjoining land in the same ownership.”

2. Remove all bulky materials that are being stored on the premises that fall into the definition of bulk store (ie sawdust, chicken litter etc.)

3. Cease using the premises for storage of waste for which a Licence or notice has not been granted or issued under the Waste Minimisation and Management Act 1995.

4. Remove all waste that is stored on the property.


5. The land referred to in the notice is Lot 2 DP 880530 Parish of Fosterton, County of Gloucester.

6. The notice of intention advised the applicant that it is proposed the order shall be complied with not later than 28 days from the date of service. The reasons for the order were set out as follows:-


1. The premises is being used for a purpose that requires Development Consent.

2. Waste is being stored contrary to the Waste Minimisation and Management Act 1995.

3. Waste product is not stored in a safe or healthy condition.


7. Section 121I provides that a person may make representations concerning a proposed order and that for that purpose the person may be represented by a barrister, solicitor or agent. The notice of intention notified the applicant of this right and advised that any representation may be made in writing to the General Manager or by appointment with council’s Executive Manager - Technical & Environmental Services with an appointment to be made during normal business hours within 14 days from the date of the notice.

8. On 21 December 1998 a consulting surveyor advising the applicant wrote on behalf of his client requesting an extension of time and observing as follows:-


Our client disagrees totally with all the issues raised in that letter. We would now call for a site meeting with councillors, council staff and NSW Agriculture representatives attending. We would appreciate the opportunity to show council the site, truck movements and various possibilities to alleviate councils (sic) concerns. It would seem from conversations with councillors, they may not be fully aware of the background of this particular site.

We would hope this site meeting may be held early in the New Year.


9. Notwithstanding the receipt of the letter dated 21 December 1998, the council wrote to the consulting surveyor on 5 January 1999 and observed that “(i)n compliance with Council’s Decision (Minute No. 29314) to issue an Order, shown attached is a copy of Order No. 24 issued by registered mail on 5 ^th January, 1999” .

10. The letter to the surveyor went on to say that a council inspection had been arranged for 10.30 am on 28 January 1999 to view the site and other matters of concern. Further the letter advised that the request for an extension of time will be considered at the on site meeting.

11. The formal order issued on 5 January 1999 made orders in the same terms as the proposed orders in the notice of intention and furnished identical reasons.

12. The applicant commenced these class 1 proceedings by way of an appeal on 3 February 1999.

13. Pursuant to s 121ZK, on the hearing of an appeal, the Court may:-


(a) revoke the order, or

(b) modify the order, or

(c) substitute for the order any other order that the person who gave the order could have made, or

(d) find that the order is sufficiently complied with, or

(e) make such order with respect to compliance with the order as the Court thinks fit, or

(f) make any other order with respect to the order as the Court thinks fit.


14. Section 121ZN provides that if an appeal is duly made to the Land and Environment Court against an order the appeal does not affect a stay of the order.

15. The council does not propose to take any action to enforce the order pending the disposal of the proceedings.

16. The applicant has made application to have a disputed question of law regarding the validity of the order heard by a Judge prior to a hearing on the merits.

Question of law

17. Three grounds previously relied upon were not pursued by Mr Hemmings who appears for the applicant.

18. Ultimately the question of law to be determined is put as follows:-

i) Whether the disputed order made by Dungog Shire Council on 5 January 1999 is an invalid order, on the following grounds:

a) No opportunity was given by the council to hear and consider the applicant’s representations prior to determining the order give on 5 January 1999, contrary to s 121J and s121K of the Act.

b) Council has no power to make Order No. 2.

c) Order No. 2 is void for uncertainty.

d) Order No. 3 is ultra vires.

e) Order No. 4 is void for uncertainty.

The statutory context

19. Section 121B provides that an order may be given by a council to do or to refrain from doing, inter alia, the following relevant things taken from the Table in the section:-

Column 1 To do what?	Column 2 In what circumstances?	Column 3 To whom?
1. To cease using premises for a purpose specified in the order	(a) Premises are being used for a purpose that is prohibited (b) Premises are being used for a purpose for which development consent is required but has not been obtained (c) Premises are being used in contravention of the conditions of a development consent	Owner of premises, or person by whom premises are being used for the purpose specified in the order


20. Section 121D requires the council to “ comply with sections 121F-121K ” before giving an order under s 121D.

21. Section 121E provides as follows:-

121E. A person who complies with sections 121F—121K is taken to have observed the rules of natural justice (the rules of procedural fairness)


22. There is no real dispute that the council relevantly complied with, or was not required to comply with, s 121F - s 121H.

23. Section 121I, s 121J and s 121K set out the right of a person to make representations concerning the proposed order and the manner of dealing with those representations as follows:-


Making of representations
121I . (1) A person may, in accordance with a notice under section 121H, make representations concerning the proposed order.

(2) For the purpose of making the representations, the person may be represented by a barrister, solicitor or agent.

Hearing and consideration of representations
121J. The person who gives the order or the nominated person is required to hear and to consider any representations made under section 121I.

Procedure after hearing and consideration of representations
121K. (1) After hearing and considering any representations made concerning the proposed order, the person who gives the order or the nominated person may determine:
(a) to give an order in accordance with the proposed order, or
(b) to give an order in accordance with modifications made to the proposed order, or
(c) not to give an order.

(2) If the determination is to give an order in accordance with modifications made to the proposed order, the person who gives the order is not required to give notice under this Division of the proposed order as so modified.


24. Significantly s 121E provides that the effect of compliance with s 121F - s 121K is that the rules of natural justice (the rules of procedural fairness) are taken to have been observed.

25. The applicant’s complaint is that the council proceeded to issue the order pursuant to the resolution at its ordinary meeting on 15 December 1998 without complying with the requirement in s 121J by failing to hear and to consider the representations the applicant foreshadowed in the letter dated 21 December 1998 and which it postponed to the site meeting.

26. Firstly, it is contended that the provisions of s 121H, s 121I and s 121J are mandatory in the sense that the legislature intended that a failure to comply with the requirements would invalidate the making of an order ( Tasker and Ors v Fullwood and Ors [1978] 1 NSWLR 20 at 23-24).

27. Alternatively, if the Court finds against the applicant in that respect, Mr Hemmings submits that the applicant has been denied procedural fairness and it follows that the order is invalid. In that case it may become necessary to consider the effect of the decision of the High Court in Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106 where Mason J discussed the rules of natural justice as they apply to administrative decisions and the effect of a right of appeal upon the application of the principles of procedural fairness. At 116 his Honour said:-

Further, the earlier cases should not be regarded as deciding that the presence of an appeal to another administrative body is an absolute answer to a departure from natural justice or the standard of fairness. The existence of such an appeal does not demonstrate in itself that the inferior tribunal is at liberty to deny a hearing. But if the right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have ‘cured’ a defect in natural justice or fairness which occurred at first instance … in some cases the court will be compelled to take account of the public interest in the efficiency of the administrative process and the necessity for reasonably prompt despatch of public business and balance that interest against the countervailing interest of the individual in securing a fair hearing - in appropriate cases that balance will be achieved if the individual secures a fair hearing on his appeal.


28. It is clear nevertheless that the applicant is not precluded from raising the question of the validity of or the power to make the order in these appeal proceedings ( Cox and Hazell Pty Ltd v Gidney [1981] 1 NSWLR 468).

29. The applicant submits that the order is beyond power as the subject matter cannot be found in any item in the Table to s 121B. It is assumed that the respondent made Order No. 1 purporting to rely on item 1 in the Table.

30. Furthermore, he says there is no power which justifies Order No. 2 requiring the removal of all bulky material. If the applicant is not correct in that contention, then Mr Hemmings argues that Order No. 2 is void for uncertainty as it is not specific enough to satisfy the requirements of s 121B.

31. The applicant also contends that the power to make Orders Nos 3 and 4 cannot be found within the Table and further that Order No. 4 is also void for uncertainty.

32. On the other hand, the respondent asserts that it complied with the provisions.

The effect of s 121J and s 121K

33. The function of the Court is to give effect to the intention of Parliament when it enacted the legislation. The principles to be applied were expressed by the Court of Appeal in Tasker at 23 - 24:-

The problem arises whenever a judicial or executive act, or the act of a litigant, is subjected by statute to the prior performance of conditions. The numerous decisions in this field have been recently reviewed by this Court … From these sources we take the following propositions: (1) The problem is to be solved in the process of construing the relevant statute. … (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved … (3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute … (4) The intention being sought is the effect on the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement … (5) It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory …


34. Section 121J defines the duty of the council or the nominated person. In this case it is the General Manager, as the representations were made in writing as required by the notice of intention issued on 17 December 1998.

35. The notice of intention invited the recipient to make representations by appointment with Council’s Executive Manager - Technical & Environmental Services as an alternative to making representations in writing. The letter dated 21 December 1998 was addressed to the General Manager as required, but went further and called for a site meeting with councillors, council staff and a representative of New South Wales Agriculture.

36. Section 121K makes it clear that the order is not to be made until after hearing and considering any representations made concerning the proposed order.

37. The question is whether the letter dated 5 January 1999, being the only evidence before the Court, reflects a consideration of the representations made by the letter 21 December 1998. In one respect it is a positive response because arrangements are made for a site meeting on 28 January 1999. Nevertheless, on the facts of this case, the outcome of the meeting could have no bearing on the issue of the notice.

38. It is worth noting that the order dated 5 January 1999 requires the applicant to comply with its terms within 28 days, namely on or about 2 February 1999, whereas the on site meeting is appointed for 28 January 1999. It is not reasonable to expect that, depending on the outcome of the meeting, the applicant could be in a position to comply with the terms of the order within five days without taking some initial steps beforehand.

39. I do not agree that the letter from the surveyor in response to the notice of intention was an opportunity lost as Mr Bates submits on behalf of the council. The reality is to the contrary in that the letter made an application to be heard orally. The application was, in practical terms, rejected by the pre-emptive issue of the notice. The surveyor’s letter specifically referred to the prospect of a meeting “early in the year” .

40. The imminence of the expiration of the period fixed in the notice had the potential to place the applicant in a compromising position at the meeting on 28 January 1999.

41. The council’s response is that account can be taken of the events which preceded the issue of the subject notice of intention in order to determine whether the subsequent actions of the council are reasonable. Such an argument is referable to any contention that the period of 14 days allowed by the notice of intention was reasonable but is not directly relevant to the issue of whether the council complied with its obligation to consider the representations made by the applicant except to the extent that any representation made is merely a reiteration of the earlier position.

42. I cannot accept that a response which specifically defers consideration of a matter raised by representations made in writing to a date beyond the issue of the intended order can amount to compliance with s 121J which requires the person giving the order or the nominated person to hear and consider the representations before making the order.

43. The scheme of sections 121I - 121K, particularly when considered in the light of s 121E, clearly displays an intention by the legislature to require strict compliance.

44. If the council had intended to convey that it proposed to rely on its earlier consideration of representations made in response to the original notice of intention given in August 1998, it gave no indication to that effect. It has not been demonstrated that the representations foreshadowed for the proposed site meeting were no more than a reiteration of the matters raised in the earlier negotiation and discussions.

45. The council certainly afforded the applicant an opportunity to make representations as required by s 121H. However, its failure to first hear and consider the foreshadowed representations pursuant to s 121J means that, contrary to s 121K, the decision to give the order was premature. Having decided to deal with the matters to be raised at the site meeting it was precluded from giving the order until at least the meeting had taken place. The decision to issue the order, on the face of the letter to the consultant surveyor, was not as the consequence of the exercise of any discretion following consideration of the matters referred to in s 121J. The letter mentioned only that the order was issued in compliance with council’s decision in December.

46. The failure to strictly comply with the pre-condition in s 121J had the consequence that the act of giving the order was invalid.

47. The answer to the first question of law is that the disputed order made by the respondent council on 5 January 1999 is not a valid order because the council failed to hear and consider the applicant’s representations prior to giving the order as required by s 121J.

48. The decision in Twist is distinguished on the basis that the issue in that case was concerned with overcoming the lack of procedural fairness on appeal. A failure to strictly comply with pre-conditions set pursuant to a statutory scheme cannot, by its nature, be cured on appeal.

49. Although the failure to comply strictly with the statutory regime removed the assumption created by s 121E that the council is otherwise taken to have observed the rules of natural justice (the rules of procedural fairness), it does not follow that the injustice to the applicant caused by the statutory breach can be remedied or cured by this appeal hearing. I do not understand Twist to be authority for the latter proposition. If it is, then the effect would be that a council may ignore the statutory regime altogether and thus rely on the right of appeal to avoid its responsibility to comply with the law.

50. The purpose of providing for the hearing and consideration of representations before giving an order is to force the council to have proper regard to the respondent’s position irrespective of the right to expect procedural fairness according to the rules of natural justice. The rights and expectations are, in my view, quite distinct.

51. Notwithstanding the invalidity of the order, the remaining issues have been argued and it is appropriate to respond to the arguments raised by both parties.

The effect of Order No. 2

52. The Court is not satisfied that the council is precluded from making an order in the form of Order No. 2. It can be reasonably regarded as an explanation or further particularisation of Order No. 1 and the manner in which the recipient is expected to respond by removing the specified materials.

53. Any question of uncertainty can be resolved by the reference to the provisions of the Model Provisions dealing with the definition of bulk store.

The effect of Order No. 3

54. Although it may be argued that the storage of waste requires development consent, the Court has not been appraised of any power which arises from the terms of Column 2 of the Table that entitles the council to insist upon compliance with the provisions of the Waste Minimisation and Management Act. Order No. 3 is therefore ultra vires the power to make an order in circumstances which arise under the EP&A Act. The reference to a purpose that is prohibited in Column 2(a) of the Table must be read as referring to a purpose prohibited by the provisions of the EP&A Act.

55. The council, in my opinion, has correctly conceded that Order No. 3 is beyond power.

The effect of Order No. 4

56. Order No. 4 can be readily understood by reference to either a definition of waste in any relevant statutory instrument made pursuant to the EP&A Act, or the ordinary meaning of the word waste. Assuming that the storage of waste requires development consent, the recipient could be in no doubt that any waste stored on the property must be removed.

Question of Law

57. Whether the disputed order made by Dungog Shire Council on 5 January 1999 is an invalid order on the following grounds:


a) No opportunity was given by the council to hear and consider the applicant’s representations prior to determining the order given on 5 January 1999 contrary to s 121J and s 121K of the Act - Yes.

b) Council has no power to make Order No. 2 - No.

c) Order No. 2 is void for uncertainty - No.

d) Order No. 3 is ultra vires - Yes.

e) Order No. 4 is void for uncertainty - No.

58. In the circumstances the appeal should be upheld and pursuant to s 121ZK(f) the council ordered to treat the order as a nullity.