Belinda Nixon v Wyong Shire Council [1998] Nswlec 192

[1998] NSWLEC 192

Land and Environment Court

of New South Wales

CITATION:	BELINDA NIXON v. WYONG SHIRE COUNCIL [1998] NSWLEC 192 [1998] NSWLEC 29
PARTIES:	BELINDA NIXON v. WYONG SHIRE COUNCIL [1998] NSWLEC 192
FILE NUMBER(S):	20103 of 1998
CORAM:	Cowdroy J
KEY ISSUES:	:-
LEGISLATION CITED:	Local Government Act 1919 Local Government Act 1993; s 68 s 124 sch 7
CASES CITED:	Burwood Council v Gaetano Russo (No 40145/94, Talbot J, 14 March 1995) ; Raymond & Anor v South Sydney City Council (No 20136/95, Pearlman CJ, 7 May 1996)
DATES OF HEARING:	19 August 1998
DATE OF JUDGMENT:	08/21/1998
LEGAL REPRESENTATIVES:	Mr M W Anderson instructed by Ms B Nixon Mr P Tomasetti

JUDGMENT:

1

1. By Application Class 2 filed 22 June 1998 Belinda Nixon (“the Applicant”) appealed against an order made pursuant to Section 124 of the Local Government Act 1993 issued by Wyong Shire Council (“the Council”) dated 26 May 1998. The appeal raises for determination an issue concerning the power of Council to make such an Order.

2. On 6 May 1974 the owner of premises being Lot 31 Section 27 in Deposited Plan 4526 known as No 31 Wolseley Avenue, Tacoma made a building application to the Council to effect certain additions to premises already constructed on such lands. Subsequently the Council granted approval with the following condition:-

Subject to the additions not being used for separate occupation.

3. By Order No 30 under the Table to Section 124 of the Local Government Act 1993, the Council ordered the owner of the subject lands to comply with Building Approval No 1339/74 and not use the additions for separate occupation .

The reasons for making the Order were stated to be that the single occupancy is being used as two separate occupancies . The Applicant, as owner of the premises challenges the power of Council to make such an Order.

BASIS OF CHALLENGE

4. The Applicant says that Section 124 of the Local Government Act 1993 (“the 1993 Act”) entitles the Council to order a person to do or to refrain from doing a thing specified in Column 1 of the Table. A notice under Order 30 would require compliance with an approval . “Approval” is defined in the Dictionary to the 1993 Act as meaning “ an approval that is in force under this Act”. In the present circumstances, the approval in respect of which compliance has been sought by the Council was not one which was in force under the said Act, but rather one which was granted pursuant to the provisions of the Local Government Act 1919 (“the 1919 Act”).

5. In support of its contention, the Applicant relies upon two unreported judgments of this Court, namely Burwood Council v Gaetano Russo (No 40145/94, Talbot J, 14 March 1995) and Raymond & Anor v South Sydney City Council (No 20136/95, Pearlman CJ, 7 May 1996). In Russo , Talbot J found that Part 3 of Schedule 7 to the 1993 Act made no provision whereby a breach of the 1919 Act was to be treated as a breach of the 1993 Act. His Honour held that the circumstance referred to in 1(a) of Column 2 to the Table in Section 124 was applicable to a building erected without an under the 1993 Act; that it was part of the scheme of the Act that buildings should not be erected without approval pursuant to Section 68 (of the 1993 Act); and that the purpose of Section 124 was inter alia, to ensure that a Council could control the circumstances referred to in the Table. However, His Honour found that except as provided for in Schedule 7, there was no provision which was to control circumstances which arose before 1 July 1993; that Schedule 7 contained no reference to an omission or failure to comply with the provision of the 1919 Act, except in respect of existing orders. He accordingly found that the Order made by the Council relating to the structure in question was beyond Council’s power.

6. In Raymond , Pearlman CJ adopted the approach of Talbot J in relation to an Order 30 made by Council in respect of work for which no approval had ever been provided. Her Honour found that the consent granted under the 1919 Act did not apply to the structure in question. Her Honour, having reached the conclusion that no approval had been given to the work which was carried prior to the 1993 Act, held that Section 124 did not entitle the Council to proceed under Section 124 Item 1(a). Since the building in question was not erected in breach of Section 68 of the 1993 Act the Court had no power to vary the Order under Section 124 Item 1(a). I should add that the circumstances in which Orders can be made pursuant to Section 124 Item 1 have, since the determination in Russo and Raymond been amended to enable a Council to take action where a structure has been erected without approval under the 1919 Act.

FINDINGS

7. I do not consider that the factual circumstance as found by their Honours Pearlman CJ and Talbot J in Raymond and Russo respectively to be of relevance in relation to the present question. In essence, the findings of their Honours was that the 1993 Act did not enable a Council to use Section 124 to take action in respect of a breach under the 1919 Act.

8. In the present case, the circumstances are quite different. An approval was granted under the 1919 Act for the relevant work pursuant to Section 311(1), as contained in Part XI of that Act. The validity of such approval remains by virtue of the transitional provisions of Schedule 7 Part 3 Clause 14 to the 1993 Act which provides:-

An approval given, or deemed to have been given, under the old Act or an ordinance under the old Act, and in force immediately before the commencement of Division 1 of Part 1 of Chapter 7, if it is an approval, or an approval of a kind, that may be given under this Act, continues in force and is taken to have been given, and may be revoked or modified, extended or renewed, under this Act.

Accordingly, an approval, granted under the 1919 Act is to continue in force and is taken to have been given under the 1993 Act.

9. The approval granted to the applicant remained in force as at the date of the commencement of the 1993 Act, and is therefore deemed to be an approval under Section 68 of that Act.

10. The reference, in Section 124 Item 30 of the Table to an approval is therefore to be construed in the light of the provisions of the Local Government Act 1993. By virtue of the deeming provision contained in Schedule 7 Part 3 Clause 14, the approval referred to in 124 Item 30 is not confined to an approval in respect of works the subject of an approval of Council under Section 68(1) of the Act. It is extended specifically to an approval under the 1919 Act if such approval was current as at 1 July 1993.

ORDERS

11. I find that the Council has power to issue the Order pursuant to Section 124 Item 30 of the Local Government Act 1993 and dated 26 May 1998 in relation to the premises No 31 Wolseley Avenue, Tacoma.

The question of costs is reserved.

Liberty to apply to either party in respect of the merits and/or question of costs.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 3 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE ACTING JUSTICE DENNIS A COWDROY OAM