Chapman v City of Greater Bendigo
[2018] VSC 358
•28 June 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
CIVIL CIRCUIT LIST
S CI 2017 00875
| ELISE CHAPMAN | Plaintiff |
| v | |
| THE CITY OF GREATER BENDIGO | Defendant |
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JUDGE: | Lansdowne AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 June 2018; further submissions to 18 June 2018 |
DATE OF JUDGMENT: | 28 June 2018 |
CASE MAY BE CITED AS: | Chapman v City of Greater Bendigo |
MEDIUM NEUTRAL CITATION: | [2018] VSC 358 |
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PRACTICE AND PROCEDURE – Application for leave to file an amended statement of claim – Principles underlying r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 applied – Whether proposed amended statement of claim discloses a cause of action – Defects of form – Leave to file the amended statement of claim refused.
NEGLIGENCE – Plaintiff claims her local council owed her a duty to acquire her land for a public purpose and had failed to do so, causing her loss – Whether the claimed duty inconsistent with the defendant’s statutory duties – Dansar Pty Ltd v Byron Shire Council (2014) 89 NSWLR 1 considered – Whether this question should be determined at trial – Held no because pleaded facts show the claimed duty not arguable.
BREACH OF STATUTORY DUTY – Plaintiff claims local council breached a duty to her imposed by s 197 of the Planning and Environment Act 1987 (Vic) to promptly acquire her land – Breach of this claimed statutory duty depends on duty to acquire being established – Not arguable on the pleaded facts that there was such a duty – Accordingly no cause of action for breach of statutory duty is disclosed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D R J O’Brien | HWL Ebsworth Lawyers |
| For the Defendant | Mr D A Klempfner | Barry Nilsson Lawyers |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
Procedural history.............................................................................................................................. 1
Legal principles.................................................................................................................................. 3
Principles of pleading.................................................................................................................. 3
Negligence and breach of statutory duty.................................................................................. 6
Common law principles relating to negligence.............................................................. 6
Breach of statutory duty................................................................................................... 11
Statutory modification...................................................................................................... 12
Parties’ submissions......................................................................................................................... 15
Discussion.......................................................................................................................................... 17
Overview of the PASOC............................................................................................................ 17
Common law duty...................................................................................................................... 18
Inconsistency with statutory duties................................................................................ 19
Claimed duty not supported by pleaded facts............................................................. 24
Draft Marong Plan............................................................................................................. 25
Marong Plan....................................................................................................................... 27
Implementation Plan......................................................................................................... 29
Land Needs Study............................................................................................................. 29
Email 22 August 2011....................................................................................................... 31
Regional Growth Plan....................................................................................................... 31
Other aspects of the plea of duty.................................................................................... 32
Breach of statutory duty claim.................................................................................................. 32
Interest in the land...................................................................................................................... 33
Causation and loss...................................................................................................................... 34
Defects of form................................................................................................................... 34
Defect of substance............................................................................................................ 35
Some other major deficiencies of form.................................................................................... 38
Conclusion......................................................................................................................................... 40
HER HONOUR:
Introduction
These reasons concern an application by the plaintiff, Ms Chapman, to file an amended statement of claim. Ms Chapman is the owner of land, and part owner of adjacent land, in Marong near Bendigo that is currently used as an alpaca hobby farm and zoned agricultural. She contends that the defendant (Council) identified her land in 2010 as potential land to be acquired for public open space, but failed to take appropriate steps to acquire it for that purpose over the following years, and indeed in 2017 decided to consider other land for that public purpose. She asserts that as a consequence of that identification of her land and delay in implementation of the proposal she has suffered loss in the value of her land by way of planning blight, and other losses. She also asserts that the identification of her land as potential open space has prevented it from being properly considered for rezoning to residential.
The defendant opposes the grant of leave to file the proposed amended statement of claim, and has made an application that the proceeding as a whole be dismissed. For the reasons that I now give, I will refuse leave to file the proposed amended statement of claim. I will hear the parties further on the defendant’s application.
Procedural history
Ms Chapman commenced this proceeding on 14 March 2017 by writ and statement of claim, at that time without legal representation. The proceeding at that time had thirteen defendants, being the Council, the Chief Executive Officer of the Council, two strategic planners employed by the Council, and nine councillors. The Council was the thirteenth defendant. Ms Chapman later discontinued the proceeding against all defendants except the Council.
I struck out the statement of claim attached to Ms Chapman’s writ on 28 June 2017. It was plainly deficient.
The plaintiff then retained solicitors and counsel, and sought leave to file a fresh statement of claim drawn by counsel and signed by those solicitors.[1] Ms Chapman’s counsel sought leave to file that statement of claim at a hearing on 9 November 2017. That statement of claim (called the FSOC in the quote below) sought to plead causes of action against five defendants only, being the Council, its CEO and three planning officers. It was an improvement on the draft prepared by Ms Chapman, but regrettably it remained quite deficient, in some respects egregiously so. I refused leave on 9 November 2017, and gave detailed reasons in writing published to the parties on 27 November 2017. Those reasons included these comments:
The FSOC, and the written and oral submissions made in support of it show that the plaintiff and her advisors have taken pains to assemble a detailed account of her grievances, and have done considerable legal and other research. The FSOC also shows an attempt at logical organisation of the plaintiff’s claims, for example by the use of headings. That is all commendable. What the FSOC regrettably does not show, however, is that the necessary next step has been taken – analysis of this dense amount of material, and distillation of it into a precise and legally sound formulation of a claim or claims that in law may give rise to a right to relief (a cause of action). That formulation must contain all the facts that are essential to the cause of action (material facts), and sufficient detail (particulars) to flesh out those facts, but should not contain more.[2]
[1]Marked Exhibit A at the hearing on 9 November 2017.
[2]Reasons dated 27 November 2017 [3].
The plaintiff then served a number of proposed redrafts on the defendant. She formally sought the Court’s leave to file a further draft by summons filed 22 March 2018. That summons came before me first on 16 April 2018. The draft statement of claim considered on that date limited the plaintiff’s claim to one cause of action, negligence, against one defendant, the Council. Unfortunately, however, the draft still contained so many drafting deficiencies that it could not proceed. The defendant also took objection to it on substantive grounds, but in my view the form of the draft was so deficient that its substance could not be properly considered, and I did not attempt to do so at that time. I refused leave to file that draft for those drafting deficiencies, but gave the plaintiff the opportunity to try again.
The plaintiff now seeks leave to file a proposed amended statement of claim (PASOC) that relies on two causes of action against the Council - negligence and breach of statutory duty. Some drafting errors and deficiencies have been corrected, although some remain. It is, however, in a form that now permits consideration of the substance of the proposed causes of action. That consideration has been aided by examination of the documents referred to in the PASOC.
Legal principles
Principles of pleading
I have approached this application for leave to file the PASOC on the basis that the same principles apply as if it was a strike out application pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules). I consider that to be the correct approach, because it would be futile to grant leave to file a pleading that is liable to be struck out.
That rule (Rule) provides as follows:
23.02 Striking out pleading
Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading—
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c) may prejudice, embarrass or delay the fair trial of the proceeding; or
(d) is otherwise an abuse of the process of the Court—
the Court may order that the whole or part of the indorsement or pleading be struck out or amended.
Affidavit evidence is not permissible in respect of the Rule but the Court may look at documents referred to in the pleadings.[3]
[3]Rule 23.04 of the Rules; and Day v William Hill (Park Lane) Ltd [1949] 1 KB 632.
In my view, the PASOC offends paragraphs (a) and (c) of the Rule. The defendant also submits that given the number of iterations of a draft amended statement of claim that have been served (the defendant’s evidence is that there have been 13 such iterations served)[4] that the PASOC offends paragraph (d) of the Rule. In my view, that submission is principally related to the defendant’s application for dismissal of the proceeding. I do not consider that the PASOC itself is an abuse of process.
[4]Affidavit of Erica Clare Lawson sworn 29 May 2018 (Ms Lawson’s affidavit) [4]. The affidavit and exhibits are provided in an Affidavit Book (Affidavit Book).
The law in relation to r 23.02 and the principles of pleading were conveniently summarised by Associate Justice Derham in Hoh and ors v Frosthollow Pty Ltd and ors.[5]His Honour summarised the principles of pleading as set out in earlier authority as follows (quoted without citations):
[5][2014] VSC 77 [12]-[20].
(a)the function of a pleading in civil proceedings is to alert the other party to the case they need to meet (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the court may conduct a fair trial;
(b)the cardinal rule is that a pleading must state all the material facts to establish a reasonable cause of action (or defence). The expression ‘material facts’ is not synonymous with providing all the circumstances. Material facts are only those relied on to establish the essential elements of the cause of action;
(c)as a corollary, the pleading must be presented in an intelligible form – it must not be vague or ambiguous or inconsistent. Thus a pleading is ‘embarrassing’ within the meaning of r 23.02 when it places the opposite party in the position of not knowing what is alleged;
(d)the fact that a proceeding arises from a complex factual matrix does not detract from the pleading requirements. To the contrary, the requirements become more poignant;
(e)pleadings, when well-drawn, serve the overarching purpose of the Civil Procedure Act 2010 (Vic);
(f)a pleading which contains unnecessary or irrelevant allegations may be embarrassing – for example, if it contains a body of material by way of background factual matrix which does not lead to the making out of any defined cause of action (or defence), particularly if the offending paragraphs tend to obfuscate the issues to be determined;
(g)it is not sufficient to simply plead a conclusion from unstated facts. In this instance, the pleading is embarrassing;
(h)every pleading must contain in a summary form a statement of all material facts upon which the party relies, but not the evidence by which the facts are to be proved (r 13.02(1)(a));
(i)the effect of any document or purport of any conversation, if material, must be pleaded as briefly as possible, and the precise words of the document or the conversation must not be pleaded unless the words are themselves material (r 13.03);
(j)particulars are not intended to fill gaps in a deficient pleading. Rather, they are intended to meet a separate requirement – namely, to fill in the picture of the plaintiff’s cause of action (or defendant’s defence) with information sufficiently detailed to put the other party on guard as to the case that must be met. An object and function of particulars is to limit the generality of a pleading and thereby limit and define the issues to be tried;
(k)a pleading should not be so prolix that the opposite party is unable to ascertain with precision the causes of action and the material facts that are alleged against it;
(l)extensive cross-referencing of facts in a pleading may render parts of the pleading unintelligible;
(m)in an application under r 23.02, the court will only look at the pleading itself and the documents referred to in the pleading;
(n)the power to strike out a pleading is discretionary. As a rule, the power will be exercised only when there is some substantial objection to the pleading complained of or some real embarrassment is shown;
(o)if the objectionable part of the pleading is so intertwined with the rest of the pleading so as to make separation difficult, the appropriate course is to strike out the whole of the pleading; and
(p)Rule 13.10, which requires a pleading to contain the necessary particulars of any fact or matter pleaded.
Associate Justice Derham also helpfully noted that the audience by which the adequacy of a pleading is to be judged is not just the other party, in the following extract from his judgment (quoted without citations):
As Harper J (as he then was) pointed out in Downer Connect Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd, pleadings have another important audience: the Judge or Magistrate. In most cases, the opposite party will have the assistance of some knowledge of the factual background—some knowledge, in other words, of the facts against which the pleadings can be assessed. The tribunal of fact will never be in that position. The pleadings must therefore be drawn so as to allow the impartial and uninformed reader to know what the case is about. This end cannot be achieved unless the pleadings form a coherent narrative, of material fact, with the necessary detail included as particulars. They must be drawn with a careful eye to the evidence that will necessarily be called if the case is to be made out. If the party pleading does not have that evidence, then the case ought not go to trial. Indeed, it is generally true to say that it ought not to proceed beyond the point at which the party pleading appreciates, perhaps because the very act of pleading reveals it, that there is and will remain a gap in the evidence upon which the cause of action or defence is based and without which that cause of action or defence will fail.[6]
[6][2014] VSC 77 [19].
This quote is particularly apposite to the plaintiff’s submission that the PASOC is sufficiently answerable by the defendant Council, because the defendant knows what relevantly occurred. Even if the Council does, and this may be doubted given the complexity of the events and the period of time over which they are said to have occurred, the Court does not. The statement of claim must be intelligible as a stand-alone document to the Court.
Negligence and breach of statutory duty
Common law principles relating to negligence
The elements of a claim for damages arising from the negligence of a defendant are:
· That the defendant was under a duty owed to the plaintiff to exercise reasonable care in a particular respect (duty);
· That the defendant failed to exercise that care (breach);
· That the plaintiff has suffered loss; and
· That that loss was caused by that breach.
A cause of action in negligence accrues on the occasion of the loss. The loss that the plaintiff seeks to claim is economic, and her claim requires that she establish that the defendant as a council owed her a relevant duty.
A particular focus of the defendant’s objections to the PASOC arise in relation to the plaintiff’s proposed pleading of duty. It is not enough to create a cause of action in negligence that the carelessness of a person has caused loss to another person. A cause of action will only arise if the careless person owed a duty of care to the person who has suffered loss by reason of that carelessness.[7] The courts at times have attempted to identify when such a duty will arise by reference to the notion of ‘proximity’, or by reason of foreseeability of harm to one’s ‘neighbour’.[8] This doctrine was restated by the High Court in 1980 in Wyong Shire Council v Shirt in these terms:
Prima facie a duty of care arises on the part of a defendant to a plaintiff when there exists between them a sufficient relationship of proximity, such that a reasonable man in the defendant’s position would foresee that carelessness on his part may be likely to cause damage to the plaintiff.[9]
[7]Donoghue v Stevenson [1932] AC 562.
[8]Ibid [580]-[581] per Lord Atkin.
[9](1980) 146 CLR 40 [44] per Mason J; [44] Stephen J agreeing; [50] Aickin J agreeing.
The High Court moved away from this test in 2001 in Sullivan v Moody noting that it was unhelpful because ‘it gives little practical guidance in determining whether a duty of care exists in cases that are not analogous to cases in which a duty has been established’.[10] The Court in Sullivan v Moody did not attempt to formulate any general test for determining the existence or non-existence of a duty of care for the purposes of the law of negligence, noting that different classes of cases give rise to different problems in determining the existence and scope of a duty of care.[11]
[10](2001) 207 CLR 562, 578 [48].
[11]Ibid [50].
The plaintiffs in that case and the related appeal heard together with it sought to argue that medical practitioners who examined the plaintiffs’ children for signs of sexual abuse owed the plaintiffs a duty of care, notwithstanding the practitioners’ professional and statutory duties to report suspicion of such abuse and to regard the interests of the child as paramount. The High Court held that the fact that a defendant is subject to statutory obligations which govern or constrain the manner in which it may exercise its powers or discretions does not of itself rule out the possibility that a duty of care is owed to an individual plaintiff. However, if the suggested duty of care to the individual would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists.[12] On the facts of the two appeals before it, the Court held that the contended for duty did not exist in law because it would be inconsistent with the medical practitioners’ other duties.
[12]Sullivan v Moody (2001) 207 CLR 562 [60].
The establishment of duty is relatively straightforward in cases of physical injury or where there is a duty relationship already established by earlier cases. It is less straightforward in a case such as this, for pure economic loss. The authorities have emphasised that a plaintiff whose claim is for economic loss does not demonstrate that a defendant owed her a duty of care simply by proving that the defendant failed to exercise reasonable care, that the loss suffered was reasonably foreseeable, and that it was caused by the defendant’s want of reasonable care.[13] In other words, in these cases it is not sufficient to reason backwards from foreseeable loss caused by negligence, to duty. In a series of cases the High Court has identified an approach to the ascertainment of a duty of care to avoid pure economic loss based on the presence, in the particular circumstances, of ‘salient features’ that, when combined, constitute or reflect a sufficiently close relationship to give rise to a duty of care.[14]
[13]Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 [21]; Moorabool Shire Council and Another v Taitapanui and Others; (2006) 14 VR 55, 73 [71]-[73]; Wheelahan v City of Casey & Ors (No 3) [2011] VSC 15; Ku-ring-gai Council v Chan [2017] NSWCA 226 [116] per Sackville AJA.
[14]Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008) NSWLR 102; [2008] NSWCA 278, [105].
Further, the plaintiff’s claim is against a statutory authority. In Graham Barclay Oysters Pty Ltd v Ryan, the High Court held that:
An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. In particular categories of cases, some features will be of increased significance.[15]
[15](2002) 211 CLR 540 [149] per Gummow and Hayne JJ; Matthews v AusNet Electricity Services Pty Ltd & Ors [2014] VSC 664 [262] per Osborn JA; Dansar Pty Ltd v Byron Shire Council [2014] NSWCA 364 (Dansar) [114] per Meagher JA, [184] Leeming JA agreeing.
In Dansar Pty Ltd v Byron Shire Council (Dansar) the New South Wales Court of Appeal applied these principles to a duty contended to be owed by a local council to a developer.[16] The developer appealed from the failure of his claim for damages against a council which was also the local sewerage authority. In that case, it was conceded that the defendant council had made a factual error in calculating available sewerage capacity and had refused a development application on the basis of that error. Some years later it approved the application on the basis of the corrected sewerage capacity. The plaintiff developer claimed damages for the loss occasioned by the delay. The claimed duty was narrowly confined to the correct calculation of the available capacity, not to making any decision as to whether or not there was available sewerage capacity or as to its allocation. Nevertheless, the Court held by majority (Meagher and Leeming JJA, Macfarlan JA dissenting) that the defendant did not owe this duty, upholding the view of the trial judge that such a duty would be inconsistent with the unimpeded performance of the council’s statutory functions. Meagher JA held that:
The council was required to give paramount consideration to the safety and continued operation of the treatment facilities, maintaining public health and protecting the environment. That obligation and the interests to which the council was to have regard are incompatible with the existence of a private law duty to take reasonable care to avoid economic loss to a developer resulting from refusal of or delay in its development approval.[17]
[16][2014] NSWCA 364.
[17]Dansar [161].
The majority also held that while it was foreseeable in a general sense that delay in consideration or rejection of a development application will have economic consequences for a developer, it was not foreseeable that the plaintiff would inevitably suffer loss as the occurrence of loss would have depended on a range of factors, some of which would not in the ordinary course be known to the council.[18]
[18]Ibid [169].
The Court also held that the plaintiff developer was not vulnerable to the defendant council in the required sense. First, it had not relied on any assurance from the council as to the availability of sewerage capacity or its allocation, the presence of reliance being an indication of vulnerability. A mere expectation that there would be sufficient capacity and that it would be equitably allocated was not enough.[19] The plaintiff in that case had been advised by the mayor of the defendant council that there was spare sewerage capacity prior to lodging its development application, but did not assert that it relied on any statement or advice as to the existence of such capacity, as to the way it would be allocated, or that it would receive an allocation.[20] Secondly, the necessary vulnerability was held not to exist because the plaintiff developer had no right or entitlement to have any available sewerage capacity allocated to its development application.[21]
[19]Ibid [174]-[176].
[20]Ibid [134].
[21]Ibid [179].
For all these reasons, the majority in Dansar held that the defendant was not subject to the claimed duty. The developer sought special leave to appeal the decision of the Court of Appeal, but that leave was refused. The Court, constituted by Hayne and Bell JJ, held that the appeal had insufficient prospects of success to warrant a grant of special leave.[22] Comments made by the Court in the course of argument indicate that the Court was concerned that the applicant was impermissibly seeking to reason backwards by ‘looking at what happened and inferring the duty from that’,[23] and was seeking damages when ‘the injury sustained is you do not get something which is not something you are entitled as a right to’ because the council was not obliged to give the allocation in question.[24]
[22]Dansar Pty Ltd v Byron Shire Council [2015] HCA Trans 093, line 457.
[23]Ibid per Bell J, line 238.
[24]Ibid per Hayne J, lines 204 and 187.
In Sami & Anor v Roads Corporation a determining factor was the inconsistency between the duty asserted to be owed by the defendant to the individual plaintiffs and the defendant’s statutory duties owed to a broader class.[25] In that case, Vickery J dismissed a claim by the plaintiffs, who were motor vehicle wreckers, against the defendant arising from a change to the registration process of re-shelled vehicles, which caused the plaintiffs’ business to become unviable. The plaintiffs contended that the defendant owed them a duty of care not to enforce guidelines which would cause them loss. His Honour held that no such duty existed because it would give rise to obligations inconsistent with the defendant’s obligations under legislation for the benefit of Victorians as a whole.[26]
[25][2008] VSC 377 per Vickery J.
[26]Ibid [140].
Breach of statutory duty
The plaintiff alleges that the defendant owed a duty to her pursuant to s 197 of the Planning and Environment Act 1987 (Vic) (PEA). That section provides as follows:
197 Expedition
Where the Minister or any responsible authority, planning authority, referral authority, public authority, municipal council, panel, committee or officer is required to do any act, including making any decision or forming any opinion, that act must be done as promptly as is reasonably practicable, in any event within the time limits prescribed or any extension of those time limits allowed by or under this Act, so that loss or damage to any person from unreasonable or unnecessary delay is avoided.
The section only applies in respect of acts that a relevant authority (which is conceded includes the defendant) is required to do. Hence, assuming for the moment that the section creates a right of personal action for breach, it only applies in respect of an act that the Council was required to do as soon as reasonably practicable. It is essential that the plaintiff adequately plead, and ultimately prove, that act.
The plaintiff relies on a 1998 Victorian case, Fitzwood Pty Ltd and ors v The Mayor, Councillors and Citizens of the Whittlesea City Council (Fitzwood) in which Ashley J (as he then was) considered a claim for damages for failure by the local council to implement a proposed reservation of the plaintiffs’ land for public purposes.[27] The causes of action in that case included a claim for breach of s 197. The act said to ground the statutory duty to act promptly was the acquisition of the plaintiffs’ land on the basis of a belief held by the defendant council that it was needed for a public road.[28]
[27](1998) 98 LGERA 28.
[28]Ibid 70.
The other causes of action in Fitzwood included common law negligence on the basis that the loss the plaintiffs’ claimed was reasonably foreseeable, and breach of a claimed common law duty to act as promptly as was reasonably practicable. The plaintiffs in Fitzwood pleaded as a fact giving rise to the common law negligence claim that the defendant council had formed the belief referred to above i.e. that part of their land would be needed for a public purpose, being a road. The duty was said to extend to the plaintiffs for two reasons – first, because it was reasonably foreseeable that a failure to reserve the portion of their land identified in various planning documents as being required for road use would cause the plaintiffs loss by subjecting the land to ‘planning blight’. The second reason was based on the fact that the plaintiffs in that case had made a series of permit applications to develop their land which were refused on the grounds that the proposed use was ‘premature’. The refusals did not in terms say that the prematurity arose because the land ‘is or will be needed for a public purpose’ and so they could not ground a claim for compensation under s 98(2) of the PEA, in the same form at that time as now.
The plaintiffs’ claim on all the proposed causes of action failed because Ashley J held that the defendant council did not in fact have the belief pleaded to ground the alleged common law duties, and the statutory duty. He did not determine whether or not the pleaded common law duties to avoid foreseeable loss or to act promptly existed at law, or the scope of those duties, and did not determine the contested issues as to whether s 197 of the PEA creates a private right of action, or if it does, its scope.
The plaintiff in this proceeding seeks to assert a similar common law duty, based on alleged foreseeable planning blight, and a similar claim for breach of s 197. As noted, however, Fitzwood is not authority for the proposition that such a common law duty existed in 1998, let alone now given the developments in the law of negligence. Nor is it authority for the proposition that a private right of action exists for breach of s 197. The Court in that case simply did not need to determine those issues, and did not.
As well as the common law changes, there have also been statutory changes, to which I now turn.
Statutory modification
The common law of negligence as it applies to claims against a statutory authority has been amended in Victoria by Part XII of the Wrongs Act 1958 (Vic). That Part was inserted in 2003, together with other statutory provision in relation to the law of negligence, which has not been the subject of argument before me. The Part applies to claims in negligence against a ‘public authority’ (other than certain claims not here relevant). ‘Public authority’ is defined by s 79 to include a local government council.
Sections 82, 83, 84 and 85 provide as follows:
82 Effect of this Part on the common law
Except as provided by sections 83, 84 and 85, this Part is not intended to affect the common law.
83 Principles concerning resources, responsibilities etc. of public authorities
In determining whether a public authority has a duty of care or has breached a duty of care, a court is to consider the following principles (amongst other relevant things)—
(a)the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions;
(b)the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceeding relates);
(c)the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceeding relates.
84 Wrongful exercise of or failure to exercise function
(1)This section applies to a proceeding for damages for an alleged breach of statutory duty by a public authority in connection with the exercise of or a failure to exercise a function of the authority.
(2)For the purpose of the proceeding, an act or omission of the public authority relating to a function conferred on the public authority specifically in its capacity as a public authority does not constitute a breach of statutory duty unless the act or omission was in the circumstances so unreasonable that no public authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.
(3)For the purpose of the proceeding the public authority is not liable for damages caused by the wrongful exercise of or failure to exercise a function of the authority unless the provisions and policy of the enactment in which the duty to exercise the function is created are compatible with the existence of that liability.
(4)Despite subsection (1), subsection (2) does not apply to a statutory duty that is imposed as an absolute duty on the public authority to do or not to do a particular thing.
85 Exercise of function or decision to exercise does not create duty
In a proceeding, the fact that a public authority exercises or decides to exercise a function does not of itself indicate that the authority is under a duty to exercise the function or that the function should be exercised in particular circumstances or in a particular way.
It is plain from s 82 that, contrary to the plaintiff’s submission,[29] the following three sections are intended to change the common law. The parties disagree as to whether their effect needs to be addressed in the plaintiff’s pleading and case, or whether the effect of the sections is a matter for the defendant Council to raise and prove in defence. The plaintiff addressed this question further in her Further Submissions on Behalf of the Plaintiff in Reply (Further Reply Submissions).[30] The issue does not appear to be the subject of definitive determination, but I agree that the better view is that it is for the defendant statutory authority to raise these sections in defence, and call evidence to support that defence at trial.[31] In other words, I am not persuaded that a plaintiff is required to address them in her statement of claim. It is plain, however, that where the defendant statutory authority is likely to rely on these provisions in defence it would be wise to take them into account in considering whether or not to bring a claim.[32]
[29]Plaintiff, ‘Submissions in support of Application for Leave to file Amended Statement of Claim and Further Orders and Directions’, Submission in Chapman v City of Greater Bendigo, S CI 2017 00875, 23 May 2018 (Plaintiff’s Submissions) [21].
[30]Dated 18 June 2018, [5]-[12].
[31]From the judgments it appears that this was the approach taken in Kennedy v Shire of Campaspe [2015] VSCA 215; Regent Holding v State of Victoria [2013] VSC 601 per Beach JA. See also Sami & anor v Roads Corporation [2008] VSC 377 [131].
[32]The defendant’s submissions suggest that it would take this approach here. Further, the documents exhibited to Ms Lawson’s affidavit include a letter from Ms Prue Mansfield Director Planning and Development of the Council dated 27 September 2013 to Mr Bert Roberts of the Marong Community Action Group in response to his letter of 17 September 2013 requesting that the Council take action to acquire land regional open space as per the Marong Plan 2011. I was taken to Ms Mansfield’s letter in argument by counsel for the defendant, without objection from counsel for the plaintiff. It was referred to in the proposed statement of claim attached to the amended writ, but is no longer referred to in the PASOC. For that reason, I have not taken its contents into account in this leave application, but they do give a sense of the matters on which Council might seek to rely pursuant to s 83 if the proceeding continues to trial.
Parties’ submissions
The parties have each provided very lengthy written submissions, and also made oral submissions. I do not propose to set out their respective submissions in anything other than overview.
In broad terms, while the plaintiff concedes that the common law and statutory duties she seeks to advance are novel, she contends that they should be allowed to go to trial for determination. She submits that the PASOC addresses all concerns previously identified either by the Court or by the defendant; that it is in a form to which the defendant can respond by way of filing a defence; and that to the extent some matters are contested, those matters should be contested at trial.
One of the matters identified in the defendant’s written submissions in respect of the PASOC is that it pleads the plaintiff’s interest in the subject land without adequately differentiating between the interests she holds in each of the two lots that together comprise what the PASOC identifies as ‘the Property’. It is apparent from title searches that were produced by the plaintiff in response to a request by the Court on 16 April 2018 that the plaintiff has been the sole registered proprietor of a portion of the Property (Lot 3) since 5 August 2008. However, she only became the registered proprietor of any portion of the balance of the property (Lot 2) on 31 December 2013.
Further, the title search reveals that she became a tenant in common with L & E Caile Pty Ltd of Lot 2 as of that date. The plaintiff incorrectly refers to her tenant in common as ‘Max Webb’.
The plaintiff conceded in her oral submissions that the PASOC requires further amendment by way of better differentiating and identifying her interest in each Lot. She contends, however, that the amendment does not affect the substance of her claim as the land she contends should have been acquired by the Council was Lot 3 which she has held as sole registered proprietor since 5 August 2008. It was said from the bar table that Ms Chapman had an interest by way of a terms contract in Lot 2 prior to becoming the registered proprietor but the details of any such interest are not pleaded.[33]
[33]There is an account of the plaintiff’s acquisition of her interests in each Lot in the plaintiff’s first set of written reply submissions, Plaintiff, ‘Submissions on Behalf of the Plaintiff in Reply’, Submission in Chapman v City of Greater Bendigo, S CI 2017 00875, 4 June 2018 (Reply Submissions) pages 3-4.
In her Further Reply Submissions, the plaintiff proposes to delete reference to Lot 2 altogether and rely on loss of value of Lot 3 only.[34]
[34]Plaintiff, ‘Further Submissions on Behalf of the Plaintiff in Reply’, Submission in Chapman v City of Greater Bendigo, S CI 2017 00875, 18 June 2018 (Further Reply Submissions) [56]-[57].
Save for this concession, the plaintiff does not concede any deficiency with the PASOC, and as noted submits that this deficiency is easily remedied and so not sufficient to warrant leave being refused to file it.
The defendant contends that the plaintiff’s proposed claim in negligence must fail because the duty for which she contends cannot arise at law. The duty as alleged was to acquire her land or some portion of it because documents issued by the Council had identified it as a suitable or the preferred site of future open space. The defendant submits that such a duty would be contrary to the line of authority to the effect that there can be no duty owed by a public authority to an individual if that duty would be inconsistent with the statutory obligations imposed on the public authority.
In the alternative, the defendant has taken me to the documents identified in the PASOC and submits that their content cannot support the claimed duty.
In addition to identifying these fundamental defects with the PASOC, the defendant contends there are multiple deficiencies both of substance and form. In relation to form, the defendant submits that many paragraphs are embarrassing in the legal sense, i.e. not in a form that can be responded to. I have noted earlier the admitted failure of the PASOC to correctly identify the plaintiff’s interest in each Lot comprising the Property. The defendant contends that this is a defect of substance that infects the entirety of the PASOC. The defendant also submits that the co‑owner of Lot 2, L & E Caile Pty Ltd, needs to be joined to the proceeding to ensure that all parties with a potential claim for diminution in value are bound by the decision.
Discussion
For the reasons that I now give in detail, I consider that there is considerable force to the defendant’s argument that the claimed common law duty cannot arise in law, because it would be inconsistent with the Council’s statutory duties to all residents and ratepayers. It might nevertheless be appropriate for the question of the existence of the duty to be determined at trial, rather than in a summary manner now, if it was arguable that the documents on which the plaintiff relies could be found as a matter of fact to have created such a duty. However, on scrutiny of the documents identified in the PASOC as creating this duty, I conclude that it is not arguable that they constituted even a decision by the Council to acquire her land, let alone an obligation to do so.
The claimed breach of the statutory duty to act promptly depends on the plaintiff being able to establish an underlying obligation to acquire her land. It accordingly fails as well because of the inability to establish that underlying obligation.
I now give my detailed reasons for these conclusions.
Overview of the PASOC
The PASOC has the following structure:
· An introductory portion (paragraphs 1-9) containing paragraphs under the headings ‘Plaintiff’s Property’ (which utilises a definition of Property that contains the lack of differentiation and error as to the other tenant in common noted above) and ‘The Council and its Organisational Structure’;
· A narrative portion (paragraphs 10-14) containing paragraphs under the headings ‘Council’s Breach of Statutory Duty and/or Negligence in the Identification of Plaintiff’s Property for Future Sporting and Recreational Facilities’ and ‘Council’s Change of Position on the Future Intention to Acquire Part of all of Plaintiff’s Property’;
· ‘Breach of Statutory Duty’ (paragraphs 14A-14D), which despite the reference to ‘breach’ in the heading, is apparently a plea of the statutory duty on which the plaintiff relies, which is pleaded to arise under s 197 of the PEA;
· ‘General Duty of Care’ (paragraphs 15-19) pleading what is apparently intended to be a common law duty (as it is pleaded as ‘Further or in the alternative to the Statutory Duty referred to in paragraph 14A);
· ‘Standard of Care of Statutory Duty and General Duty’ (paragraphs 20-22) which pleads foreseeability, probability and seriousness of harm and obligation on the Council to take precautions against such harm;
· ‘Breach of Duty’ (paragraphs 23 and 23A) in respect of both the Statutory Duty (defined in the Glossary to mean the statutory duty under s 197 of the PEA) and the ‘General Duty’ (defined in the Glossary to mean ‘the duty to avoid loss and damage to the Plaintiff by action without unreasonable delay in reserving and/or acquiring the Plaintiff’s Property for its identified Public Purpose’); and
· ‘Causation and Loss and Damage’ (paragraphs 24-27) claiming loss and damage caused by the defendant’s breaches of the Statutory Duty ‘further or alternatively’ the General Duty.
Common law duty
The claimed common law duty is pleaded in paragraph 15 to arise because the Council had ‘responsibility’ to administer the Greater Bendigo Planning Scheme (Planning Scheme). Two aspects of this ‘responsibility’ are pleaded in particular. First, the implementation of the recommendations of the various studies and plans which the plaintiff contends recommended that her land or a portion of it be reserved or acquired as the preferred location for future sporting and recreational facilities for the township of Marong. Secondly, avoiding unreasonable delay as required by s 197 of the PEA.
In other words, the plaintiff pleads the statutory duty as an element or aspect of the claimed common law duty.
In my view this is prone to introduce error. It may perhaps be thought that if there was a duty to acquire the plaintiff’s land then an aspect of that duty was that it be exercised without undue delay. To plead that this aspect arises from the statutory duty, which can only arise once the Council is required to do something i.e. if the common law duty exist, is circular.
Inconsistency with statutory duties
The fundamental difficulty with the claimed duty is exposed by its alleged source - the Council’s responsibility for administering the Planning Scheme. The plaintiff contends that the claimed duty to her is not inconsistent with the Council’s duties to the broader community, because there is no conflict between her interests and that of the broader community.[35] I do not agree. Even assuming for the moment that the planning documents on which she relies do unequivocally propose the acquisition of her land, those documents relate to the overall planning of Marong, within the context of the overall planning of the Greater Bendigo area. Responsibility for the overall planning of the municipality may require or justify delay in implementing, or failure to implement, a planning proposal previously made. The duty to the community as a whole may require a decision that is not in the interests of an individual landowner in that community. This immediately exposes the claimed duty to the argument that it does not exist in law because it would be inconsistent with the Council’s statutory duties in planning and local government generally.
[35]Plaintiff’s Submissions [21(5)] p 11.
The duties and powers of a planning authority, which includes the Council, are set out in s 12(1) of the PEA. Section 12(1) provides as follows:
12 What are the duties and powers of planning authorities?
(1) A planning authority must—
(a) implement the objectives of planning in Victoria;
(b)provide sound, strategic and co-ordinated planning of the use and development of land in its area;
(c)review regularly the provisions of the planning scheme for which it is a planning authority;
(d)prepare amendments to a planning scheme for which it is a planning authority;
(e)prepare an explanatory report in respect of any proposed amendment to a planning scheme;
(f)provide information and reports as required by the Minister.
Pursuant to this section, the Council has statutory responsibilities in respect of the whole of the land within its municipal area and pursuant to the Planning Scheme, not just in respect of land in and around Marong.
In respect of its responsibilities as a local government authority, the Local Government Act 1989 (Vic) contains a Charter for local government that sets out, amongst other things, the purpose of local government (s 3A); the objectives of a council (s 3C); and the role (s 3D) and functions (s 3E) of a local council. These sections provide as follows:
3A What is the purpose of local government?
The purpose of local government is to provide a system under which Councils perform the functions and exercise the powers conferred by or under this Act and any other Act for the peace, order and good government of their municipal districts.
3C Objectives of a Council
(1)The primary objective of a Council is to endeavour to achieve the best outcomes for the local community having regard to the long term and cumulative effects of decisions.
(2)In seeking to achieve its primary objective, a Council must have regard to the following facilitating objectives—
(a)to promote the social, economic and environmental viability and sustainability of the municipal district;
(b)to ensure that resources are used efficiently and effectively and services are provided in accordance with the Best Value Principles to best meet the needs of the local community;
(c)to improve the overall quality of life of people in the local community;
(d)to promote appropriate business and employment opportunities;
(e)to ensure that services and facilities provided by the Council are accessible and equitable;
(f)to ensure the equitable imposition of rates and charges;
(g)to ensure transparency and accountability in Council decision making.
3D What is the role of a Council?
(1)A Council is elected to provide leadership for the good governance of the municipal district and the local community.
(2) The role of a Council includes—
(a)acting as a representative government by taking into account the diverse needs of the local community in decision making;
(b)providing leadership by establishing strategic objectives and monitoring their achievement;
(c)maintaining the viability of the Council by ensuring that resources are managed in a responsible and accountable manner;
(d)advocating the interests of the local community to other communities and governments;
(e)acting as a responsible partner in government by taking into account the needs of other communities;
(f)fostering community cohesion and encouraging active participation in civic life.
3E What are the functions of a Council?
(1) The functions of a Council include—
(a)advocating and promoting proposals which are in the best interests of the local community;
(b)planning for and providing services and facilities for the local community;
(c)providing and maintaining community infrastructure in the municipal district;
(d)undertaking strategic and land use planning for the municipal district;
(e) raising revenue to enable the Council to perform its functions;
(f) making and enforcing local laws;
(g)exercising, performing and discharging the duties, functions and powers of Councils under this Act and other Acts;
(h)any other function relating to the peace, order and good government of the municipal district.
(2)For the purpose of achieving its objectives, a Council may perform its functions inside and outside its municipal district.
The exact meaning of these sections was not the subject of argument and so it follows that my analysis does not have the benefit of that argument. With that proviso, it would appear that these sections draw a distinction between the ‘municipal district’ of a council and a ‘local community’. ‘Local community’ is not a defined term in the Act. It would be inconsistent with s 3A for the area of responsibility of a particular local council to extend beyond its municipal district, and so I infer that ‘local community’ is a subset of a municipal district. If that analysis is correct, it provides some support for the plaintiff’s emphasis on the Council’s duties to the residents of Marong, as opposed to residents of other parts of the City of Greater Bendigo.[36]
[36]Plaintiff’s Submissions [62]-[66] and Further Reply Submissions [19]-[24]. It may nevertheless be appropriate for the question of the existence of the duty to be determined at trial, rather than in a summary manner now
Be that as it may, however, the statutory obligations of the Council as a planning authority in relation to planning schemes (Part 2 of the PEA) and as an instrument of local government under the Local Government Charter are owed to persons within the municipal district generally. They are not stated to be owed to any particular individual. Further, it is readily conceivable that in exercising its responsibilities to the local community, or to the municipality as a whole, the Council may be required to act in a way that does not favour a particular individual, or causes loss to a particular individual.
The Council may owe duties to a particular individual in respect of a permit application (Part 4 of the PEA), or in respect of compensation (Part 5 of the PEA), but the plaintiff does not rely on any such duty in this case. She does not plead that the Council has breached any duty owed to her in respect of a permit application, and asserts that she is not entitled to access the compensation regime, on the basis that its preconditions have not been met. Indeed that assertion is a basis on which she says she should be permitted to proceed with this claim.[37]
[37]Plaintiff’s Submissions [46] and [18(c)] of the PASOC.
In Dansar, a claim of a duty owed to a particular individual failed even where that individual had made an application and it was conceded that the application had been refused due to what was described as an operational error. The claim failed because the claimed duty was inconsistent with the statutory obligations of the defendant as a sewerage authority by reason of which it was not required to allocate any particular sewerage capacity to the application. The plaintiff’s case here is significantly weaker.
At its highest as pleaded, the plaintiff requested a Planning Panel to consider rezoning her land for the purposes of subdivision (Particular (iii) to paragraph 11) and contends that the Planning Panel could not take this further because of the identification of her land as required for a public purpose (paragraph 10B). She does not plead that the Council itself, as opposed to an officer of the Council, refused to rezone her property as residential by reason of this identification (paragraph 10B(b)). Further, the failure on which she relies is not of any operational or administrative kind, but at its highest as pleaded is a failure to allocate funds to one purpose, to acquire land identified as required for a public purpose (paragraph 10), as opposed to other purposes. The allocation of funds is a matter that plainly raises potential inconsistency with the obligations of the Council towards its ratepayers and residents generally.
In my view, the defendant’s argument that this is the fatal flaw with the plaintiff’s claimed common law duty has considerable force. Inconsistency with the statutory function is a significant consideration when a duty to an individual is asserted as against a statutory authority, and here it could well be determinative.
The plaintiff relies on Fitzwood and the approach taken by Osborn J (as he then was) in Wheelahan v City of Casey and ors (No 3) (Wheelahan) in support of her submission that leave be granted notwithstanding potential difficulties in establishing the claimed duty at trial.[38] As noted earlier, I do not consider that Fitzwood provides a reliable basis on which to proceed, given the limited findings and the developments in both statute and the common law since it was decided. In Wheelahan Osborn J held that it was preferable to allow a claim for economic loss to proceed to trial, notwithstanding submission that no relevant duty could be established. Each case must, however, be decided on its own pleading and facts, and the claimed duty in that case is distinguishable from the duty on which the plaintiff seeks here to rely. The plea of duty of care sought to be struck out in that case was not against a statutory authority - it was pleaded by the City of Casey, not against it, and against a private company which had provided services to that City. Thus it is not an example of a claimed duty of care as against a local council being permitted to go to trial. Further, there was no defect of form relied upon in that case.
[38][2011] VSC 15.
I am conscious that caution must be exercised before striking out (or in this case refusing leave to file) a pleading on the ground of r 23.02(a) i.e. that it is does not disclose a cause of action.[39] As noted earlier, if it was arguable that the pleaded facts, including the documents on which the plaintiff relies, could establish that the Council was under an obligation to acquire her land, then it may be preferable to allow the question of duty to be determined at trial. In this case, however, I am satisfied that the claimed duty has no real prospect of success as a matter of fact and so to allow the PASOC to be filed would be futile.
[39]Authorities summarised by Derham AsJ in Hoh and Ors v Frosthollow Pty Ltd and ors [2014] VSC 77 [20]. See also the Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 [35] in relation to summary judgment for failure to identify a cause of action.
Claimed duty not supported by pleaded facts
I consider that the pleading fails on its facts because I do not consider it arguable that the documents on which the plaintiff relies show a decision by the Council to acquire her land and so cannot found an obligation to do so. At their highest, the documents show only that the plaintiff’s land was considered the most appropriate land to meet a perceived need for more open space for Marong in the future. In my view, that is not enough. In reaching this conclusion, I consider only documents that are referred to in the pleading.
The plaintiff pleads in paragraphs 10(a)-(f) and 15(a) the following documents prepared by the Council or its officers as containing the recommendations to reserve or acquire part or all of her land:
· Draft Marong Plan 2010;
· Marong Plan 2011;
· Implementation Plan 2011;
· Land Needs Study 2011; and
· Regional Growth Plan 2014.
The defendant sought copies of these documents and others referred to in the PASOC and has exhibited them to an affidavit.[40] The plaintiff also refers in paragraph 10(e) to an email from the Council to the plaintiff dated 22 August 2011, which does not appear to have been requested by the defendant and is not in evidence.
[40]Ms Lawson’s affidavit.
Draft Marong Plan
I accept the defendant’s submission that it is a misnomer to call at least the first few pages of the document the plaintiff has supplied to the defendant as the ‘Draft Marong Structure Plan dated 16 December 2010’ by that name. The first three pages are entitled a ‘Project Bulletin’ i.e. a work in progress (and in fact Project Bulletin No. 1), not a draft completed plan.[41] The second paragraph of the text of the document makes it plain that the document is not itself a structure plan, or even a draft structure plan. That text states that ‘A Structure Plan is to be prepared for Marong’ (emphasis added). The third paragraph states: ‘This is the first of three project bulletins. The aim of Project Bulletin No. 1 is to introduce the project, explain its purpose and outline the structure plan process including how the local community can become involved’ (emphasis added). The copy of Bulletin No. 1 in evidence is very poor, but it appears to show on the second page a table for the Proposed Timeline commencing June 2010 for Project Commencement, including a Community Workshop in July 2010 and Community Submissions in September 2010. The third page of the document states that ‘A draft Marong Plan will be ready for exhibition and public comment by mid-December this year’ and continues that the public exhibition will run to 15 February 2011, with a revised Plan in response to public comment to be ready by ‘late March 2011 with a public launch to follow in April’.
[41]Ibid, of document marked 3 in ECL-18; Pages 119-121 in the Affidavit Book.
Even if an actual Structure Plan adopted by the Council might in law be capable of creating a duty owed to Ms Chapman, I do not consider that Project Bulletin No. 1 conceivably could. It is merely a document announcing a process.
The final page of what the plaintiff has supplied to the defendant as the Draft Marong Structure Plan is marked Project Bulletin 3, and bears a hand written and a printed annotation ‘16/12/2010’.[42] The plaintiff does not plead what occurred between Project Bulletin No 1 and this document, which appears on its face to be part of Project Bulletin No. 3. The text does describe what has been achieved by that date as ‘the Draft Plan’. I allowed the plaintiff to mark up and put into evidence a colour copy of this page.[43] The plaintiff’s mark-up shows her identification of the area of Lot 3 (the portion of her land of which she was sole registered proprietor at this time). Her identification of that Lot coincides with most, but not all of the only area marked on that page as Proposed Open Space. I consider that at most by this stage, the Council had published a draft plan that on its face proposed that an area of land most of which coincides with land owned by the plaintiff be ‘proposed open space’. I do not consider that this document could in law be said to create a duty to act on its contents, given that it describes itself as a ’draft’ and refers to only ‘proposed’ open space.
[42]Affidavit Book, page 122.
[43]Plaintiff’s Exhibit C.
Marong Plan
The PASOC pleads that the Council then adopted and published what the plaintiff accurately calls the ‘Marong Plan 2011’. The Marong Plan is dated 15 June 2011.[44] Adoption and publication of this document is the first pleaded fact that in my view could conceivably create a duty on the Council to act on its contents. The difficulty for the plaintiff, however, is that those contents do not support a duty to reserve or acquire any portion of the plaintiff’s land. I accept the submission by the defendant that the contents of the Marong Plan show that it was intended as a guide only for future development of Marong; had been prepared well in advance of the time at which its full implementation was perceived to be required; and anticipated that change may be required over time.
[44]Affidavit Book, pages 123-139.
The first paragraph of the Introduction states explicitly (emphasis added) that ‘The Marong Plan is intended as a guide to enable growth and development in the Township that is consistent with the longer-term intent to establish a ‘Satellite Township’ according to the aspirations of the Town’s community’. The final paragraph of the Introduction notes that the implementation plan as prepared ‘will be updated over time as the need arises’. The first objective stated under Plan Objectives makes it plain that the Marong Plan was forward planning for 2030 at which time an estimated population of 8,000 people was envisaged, as compared with the population in 2011 of 500-600 residents.[45]
[45]Ibid, page 101, per clause 2.5 of the Marong Recreational Land Needs Study August 2011.
The portion of the Marong Plan that refers to Regional Open Space (clause 4.2) states that ‘A second regional open space area comprising an area of approximately 8 to 10 ha is to be provided’. The clause goes on to state the criteria that should be met for this area, which the plaintiff contends were all met by Lot 3. Critically, however, the clause qualifies this list of criteria by the words ‘The location is subject to further investigation’ and ‘The assessment of potential open space siting opportunities is to be identified as a priority action in the Implementation Plan’ (emphasis added).
Given all these indications in the Marong Plan that it was intended to be a guide to long term planning, the details of which may change over time, and that while regional open space would be required, its particular location was to be further investigated, I do not consider that it could give rise to a duty to acquire any particular site for regional open space.
In her Further Reply Submissions, the plaintiff submits that even if the statements in the Marong Plan were ‘mere recommendations’ as the defendant submits, they still had an effect on the value of the plaintiff’s land.[46] This may be so, as a matter of fact, but as noted earlier it is not possible to create the necessary duty by reasoning backwards from loss and causation to duty.
[46]Further Reply Submissions [46]-[47].
There is another aspect of the Marong Plan that is relevant to the claimed duty. That is the inclusion of the proposed Marong Business Park. One of the plaintiff’s grievances appears to be that her land which abuts the land now designated to be the Marong Business Park has not been rezoned residential to allow subdivision.[47] The Marong Plan refers (clause 2.2) to the proposed Marong Business Park as ‘a major employment area of regional significance’ which is to be protected by ‘maintaining adequate separation from existing and future areas of residential development’.
[47]Plaintiff’s Submissions page 26.
To the extent that the plaintiff’s land has not been, or cannot be, subdivided for residential development because it abuts the Marong Business Park, the Marong Plan shows that that consequence may be a result of the Council giving preference to the employment interests of the region, including the Marong local community, over her individual interest in residential subdivision. This conflict demonstrates the inconsistency between the claimed duty to her to acquire her land, and the Council’s statutory duties. This is so even if, as the plaintiff submits, the relevant class for comparison between the duty said to be owed to the plaintiff and the class to whom the Council owes its statutory planning duties is the class of residents of Marong, as opposed to residents of the municipality generally.[48]
[48]Plaintiff’s Submissions [63]-[65] and Further Reply Submissions [19]-[21].
Implementation Plan
The plaintiff next relies on the Implementation Plan dated 6 July 2011.[49] This contains an item, item 13, which the Plan describes as ‘VH’ i.e. a very high priority, ‘in progress’, the purpose of which was to ‘identify a preferred site for a future regional open space to service the Marong and district community’. What was to be done was to complete a needs analysis, determine possible siting options and compare them, designate a preferred site, and determine a preferred process and expected timing for site acquisition. For the same reasons stated earlier, given that this work was still in the exploration stage, I do not consider that it could give rise to a duty to acquire the plaintiff’s land.
[49]Affidavit Book, pages 140-143.
Land Needs Study
The most specific identification of the plaintiff’s land as the preferred location for future open space is made in the next document in time pleaded by the plaintiff - the Marong Recreational Land Needs Study dated 15 August 2011 (Land Needs Study).[50] The Land Needs Study notes that by 2031 an additional 8 ha of recreational open space will be required for the estimated population at that time of 7,532.[51] It notes that the Marong Plan highlighted an area of over 50ha in size for investigation of the most appropriate land to provide this 8 ha area. The Land Needs Study then divides this 50 ha area into three parcels, Parcels 1, 2 and 3, which it assesses for appropriateness for the proposed additional open space.
[50]Ibid, pages 91-118.
[51]Ibid, page 111, clause 4.
The Land Needs Study concludes that Parcel 1 is the least suitable, and that Parcels 2 and 3 are both ‘considered suitable choices for acquisition in the short to medium term (1-5 years)’.[52] It recommends that ‘Council, as a first preference, investigate acquiring either Parcel 2 or 3’ for open space (emphasis added).
[52]Ibid, page 113.
Parcel 2 is stated in the table that makes the assessment on which this recommendation is based, Table 8, to have two owners. The plaintiff contends that Lot 3 fell within the identified Parcel 2. In other words, she was one of the owners of Parcel 2. She contends that Parcel 3 corresponds to Lot 3, and that she had an equitable interest in Lot 3 at that time by virtue of a terms contract to purchase it. Assuming for the purposes of this application that these assertions are true, the Land Needs Study recommended that the Council ‘investigate’ acquiring some or all of land of which she was a landowner, or in which she had an interest.
Three things can immediately be seen. First, the plaintiff was not the only owner or person with an interest affected by this recommendation. If the recommendation created a duty on the Council to act on it, then there are other persons with a potential claim. I accept the plaintiff’s submission that this is not necessarily fatal to her claimed duty.[53] However, what was said was a recommendation only, and a recommendation to ‘investigate’ acquisition, not to acquire. Thirdly, and critically, the Land Needs Study was not prepared by the Council - it states that it was prepared for the Council by another person, Mark Hands of CPG. The plaintiff does not plead that it was prepared by Council. Paragraph 10(d) pleads that ‘Council procured’ its preparation. Whatever the Land Needs Study recommends, the Council cannot be bound by those recommendations unless it has adopted them. The PASOC pleads that the Council ‘adopted’ the Marong Plan, and ‘prepared’ the Implementation Plan, but does not plead any adoption of the Land Needs Study as a fact and counsel for the plaintiff could not tell me in oral argument if that had occurred.
[53]Further Reply Submissions, [33]-[35].
For these reasons, I do not consider that the Land Needs Study can support the claimed duty.
Email 22 August 2011
Paragraph 10(e) of the PASOC identifies the next material facts in these terms:
(t)he Council was aware of the Plaintiff’s concerns about the status of her property in relation to the proposed open space and advised her that it was “taking steps to seek a resolution in as timely a manner as possible”.
The particulars to the paragraph identify an email from Mark Stubbs of Council to the plaintiff dated 22 August 2011. The email is not in evidence. On the assumption that the paragraph accurately states its contents, it could not in my view establish any duty on the Council to take any particular action. According to the pleading, the Council only undertook to seek a timely resolution, not to acquire her land.
Regional Growth Plan
The final document on which the plaintiff relies in paragraph 15(a) as creating the claimed common law duty is the Regional Growth Plan 2014. I presume that is the document defined in the Glossary to the PASOC as the ‘Loddon Mallee South Regional Growth Plan’, although the Glossary Entry mistakenly describes it as the ‘Regional Growth Plan 2011’, one of the many slips of language that are still evident in the PASOC. I will refer to it simply as the Regional Growth Plan.
As the defendant correctly identifies, the Regional Growth Plan was not prepared by the Council. It is a state government document that relates to five local government areas, including the Greater Bendigo local government area. The plaintiff pleads in paragraph 10A that the Council later incorporated the Regional Growth Plan into the Planning Scheme by an amendment gazetted on 30 May 2014 which requires the Council to plan in accordance with any relevant regional growth plan. Even assuming that to be correct, I do not consider that the Regional Growth Plan either imposed a duty on the Council to acquire the plaintiff’s land either by its own terms or by reference to the earlier documents on which the plaintiff relies.
The Regional Growth Plan merely notes the Marong Plan and the Marong Business Park, and states that the implementation of the Marong Plan and development of the Marong Business Park should be prioritised.[54] Given my earlier analysis of the Marong Plan, all that the Regional Growth Plan adds is, at most, a requirement to prioritise investigation of open space and potential acquisition, not any requirement to acquire any particular parcel of land.
[54]Page 196 of the Affidavit Book.
Other aspects of the plea of duty
The plaintiff has sought in the paragraphs following paragraph 15 in this portion of the PASOC and in the portion headed Standard of Care to plead other aspects of the relationships between herself and the Council that support the claimed duty – reasonable foreseeability of loss; vulnerability to the actions of the Council by reason of her position as a Councillor preventing her from advocating for her personal interest and the absence of other statutory remedies; and the necessity for a reasonable Council to take precautions against her loss.
Given my conclusions in relation to inconsistency and the lack of factual foundation for the plaintiff’s claim of duty it is not necessary to consider these aspects of the pleading further in a substantive sense.
Breach of statutory duty claim
As noted earlier, assuming for the moment that a private right of action is available for breach of s 197 of the PEA, such a duty can only arise where the Council is ‘required’ to do something. In other words, there must be an underlying obligation before the statutory duty to proceed expeditiously can arise.
The Particulars to the plea of statutory duty at paragraph 14B(b) identify the underlying duty as being to comply with the ‘obligation in clause 11.05-1 of the Planning Scheme to “ensure regions and their settlements are planned in accordance with any regional growth plan (being the Regional Growth Plan 2014”’ (emphasis added). In other words, an obligation to plan, not to acquire any particular land. Assuming for the moment that there is such a duty, and that breach of it can give rise to a private right of action, it is difficult to see how failure to acquire the plaintiff’s land could constitute a breach.
Further articulation of the claimed duty in this section of the PASOC shows, however, that the underlying complaint in respect of this proposed cause of action as with negligence, is failure to acquire the plaintiff’s land. The third paragraph of the Particulars to paragraph 14(b) states that as a consequence of the claimed duty to plan according to any regional growth plan, the Council was under a duty to implement, with priority, the Marong Plan, which identified the plaintiff’s land. Further, the Particulars to paragraph 14Dstate that s 197 imposed a statutory duty on the Council ‘from at least May 2014’ (a reference to the adoption of the Regional Growth Plan) to ‘act on its stated intention…in the Marong Plan…by taking steps to formally reserve or acquire (part or all of the plaintiff’s land)’.[55] In other words, to acquire her land.
[55]Plaintiff’s Submissions [16].
As discussed earlier, the Marong Plan 2011 did not impose an obligation on the Council to acquire the plaintiff’s land, and nor does the adoption of the Regional Growth Plan into the Planning Scheme. In other words, the plea of statutory duty in my view necessarily fails by reason of the failure of the plea of a common law duty.
Interest in the land
I noted earlier in these reasons that the plaintiff concedes that she has pleaded her interests in the relevant land compendiously, without accurately identifying the nature of those interests and the different dates on which they were acquired.
I accept the defendant’s submission that this defect infects the whole of the PASOC and is a distinct reason for refusing leave to file it. The plaintiff pleads as the basis for the claimed common law duty to acquire her land a series of Council documents, commencing in 2010 when she was the registered proprietor of Lot 3 only, up to 2014 when she had acquired a legal interest in Lot 2 as well. If the claim is to proceed in respect of each Lot, it would be essential in relation to the pleading of duty for the plaintiff to identify clearly the nature of her interests in each Lot and when she acquired them, and to identify with precision the portion of those Lots that she claims was identified in the various Council documents as required or suitable for acquisition for public open space.
This clear identification would also be required in relation to the pleas of causation and loss. The current plea at paragraph 24 claims loss by reason of diminution in value of the plaintiff’s land due to planning blight and uncertainty, and loss of opportunity to develop it by residential subdivision. For those pleas to survive, it would be necessary to identify with precision what portion of the plaintiff’s land was said to be subject to this blight and/or loss of opportunity and from what date.
Further, if the portion of the plaintiff’s land that was so affected includes Lot 2, then I accept the defendant’s submission that the co-owner of that Lot, L & E Caile Pty Ltd, must be joined to the proceeding to ensure that all necessary parties are bound by the determination of the claim. Joinder is required pursuant to r 9.06(b)(i) of the Rules.
I note that the plaintiff in her Further Reply Submissions proposes that she abandon any claim in respect of Lot 2. I accept that if she were to be permitted to re-plead, then this amendment would remove the need to join the co-owner of that Lot.
Causation and loss
I have referred above to the substantive difficulty caused for the pleading of causation and loss by the failure to properly identify and distinguish the plaintiff’s interests in her land. The pleading of these elements in paragraphs 24 to 27 is problematic in other ways as well, both in substance and in form.
Defects of form
First, the two elements of the causes of action are pleaded together, in an undifferentiated way, with the result that the facts necessary to establish causation are simply not pleaded or glossed over. I could identify only two facts pleaded to show causation. The first is that the plaintiff reasonably relied on the Council’s identification of her land as required for future public open space (paragraph 25). What this ‘reliance’ caused the plaintiff to then do, or not do, and why that in turn caused loss is not pleaded. The second asserted fact is buried in the Particulars to paragraph 24, at Particular (v). This is the assertion that uncertainty as to the future use of her land ‘prevented the Plaintiff from constructing her desired home on the Property’ despite having a planning permit and bricks to do so. In what way was she so prevented? Further, the defendant cannot plead to this fact as it appears in the Particulars rather than in a distinct paragraph.
Other than these two matters, the necessary causation is merely asserted, not pleaded out (paragraph 24 ‘by reason of’; paragraph 26 ‘the loss and damage ...was caused by’; and paragraph 27 ‘the loss and damage …was a reasonably foreseeable consequence’).
Next, there are internal references to other paragraphs of the PASOC that may be errors, or if not, are very confusing. Paragraph 24 asserts loss ‘by reason of the matters pleaded in paragraphs 18-23A above’. The reasons for selecting these paragraphs as opposed to some others is unclear. Paragraph 27 pleads the loss claimed in paragraph 23. This would appear to be a plain error, as paragraph 23 does not plead loss; paragraph 24 does.
The plea of loss in paragraph 24 is significantly defective. The paragraph does not plainly plead when the loss by reason of planning blight first occurred, and so the calculations based on a ‘before and after’ basis in the Particulars cannot be assessed in any meaningful way. Before when? After when? In oral submissions, counsel for the plaintiff asserted that the cause of action reached a ‘climax’ in 2015 but could not answer with any precision when the plaintiff’s loss occurred, which is the date on which any cause of action in negligence would accrue.
Defect of substance
The defendant’s submission that the claim for rental expenses in Particular (v) to paragraph 24 is statute barred in respect of any loss before March 2011 (six years prior to the commencement of the proceeding) is likely correct, but as the plaintiff observes this would ordinarily be a matter to plead in a defence,[56] if leave was otherwise granted to file the PASOC.
[56]Reply Submissions [118].
It appears from paragraph 24(c) that the plaintiff wishes to claim damages for loss of the opportunity to develop her land for residential subdivision. She asserts that the identification of her land as suitable or required for open space prevented its rezoning as residential and so its potential for residential subdivision. This claim is problematic, first because the documents she identifies in the PASOC are not, in my view, capable of showing that she had any such sufficiently articulated plan.
In Particular (iii) to paragraph 11 the plaintiff refers to the Site Nomination Form she lodged with the Council on or around 30 April 2014 for consideration in the development of the Bendigo Residential Strategy, which she states reflected the ‘Plaintiff’s subdivision plans’. The ‘Plaintiff’s Subdivision Plan’ (in the singular, as opposed to the plural used in paragraph 11) is defined in the Glossary to be her ‘plans to procure the subdivision and development of part or all of her Property for residential development, as detailed in the planning submission lodged by the Plaintiff to Council on or about 30 April 2014’.
The documents produced by the plaintiff to the defendant as falling within this category and subsequently exhibited by Ms Lawson to her affidavit are a Site Nomination Form completed by the plaintiff and a letter from a planning consultant, Mr Stephen Pole to Council dated 20 March 2014.[57] The pro forma content of the Site Nomination Form states that it ‘has been prepared to assist landowners and developers in preparing submissions to the revised Greater Bendigo Residential Strategy that seek to have land included within the Urban Growth Boundary’.[58] In other words, it appears uncontroversial that completion of the Form was a first stage towards rezoning to residential, which may then have permitted subdivision.
[57]The plaintiff sought to put into evidence another document, MFI 2, which appears on its face to be a proposed residential subdivision prepared by Spiire, but I refused the tender as the date on that document is 27 May 2014 and so could not be part of a submission lodged by Ms Chapman on 30 April 2014, or by Spiire on 25 May 2014 which are the two submissions pleaded in the Particulars to [11].
[58]Page 85 of the Affidavit Book.
In response to the pro forma question ‘Is the owner prepared to develop the land?’ Ms Chapman answered ‘Maybe in conjunction with developer/s’. By way of further information, she added ‘We are requesting Council to put this land inside the Marong residential boundry (sic) and make a decision/purchase land for future recreation’.[59]
[59]Ibid, page 86.
I accept the defendant’s submission that this is not an unequivocal request for rezoning to permit residential subdivision. At most it is an expression of conditional interest. Further, the further information suggests that the plaintiff’s real request was that the land be acquired, not that she be able to develop it. For this reason, to the extent the claim for loss in paragraph 24 seeks damages for loss of opportunity for residential subdivision, these documents do not support that claim.
The plaintiff in her Further Reply Submissions asserts that she does not claim to have made a subdivision application, but that submission to the Planning Panel was a necessary precursor to such an application.[60] She submits that the Marong Plan and Implementation Plan precluded or prevented her land from being recommended by the Planning Panel as suitable for future residential development.[61] Even if this is so, the second difficulty with her claim for loss of opportunity to subdivide is that she does not plead any fact from which the conclusion could be drawn that, save for the Marong Plan, the Panel would have recommended her land be rezoned residential. The only portion of the Panel Report to which counsel for the plaintiff took me in argument does not support this conclusion.[62] The Panel in that portion of its Report expresses surprise at the ‘extensive subdivision’ in Marong to date, states that ‘structure planning, community planning and provision of open space infrastructure and community services in the town is urgent’ but states that it ‘is not in a position to recommend the location of the new recreation reserve’. It is plain from these comments that the Panel was treating the plaintiff’s land as proposed open space, not as land to be rezoned residential for subdivision.
[60]Further Reply Submissions [41].
[61]Ibid [26].
[62]Pages 385-386 of the Affidavit Book, being clause 10.2 of the Panel Report dated 13 November 2015.
Further, the plaintiff does not plead any Council resolution in response to the Planning Panel report - only an officer’s report. Nor does she plead what occurred in relation to rezoning of land to residential as a result of the Planning Panel report. It is left completely unclear how the comments made by the Planning Panel caused a failure to rezone her land as residential, so as to permit subdivision.
A third difficulty is that the documents pleaded show a possible alternative reason for the failure of her land to be rezoned- being the necessity for separation of the Marong Business Park from residential areas.
Some other major deficiencies of form
For the reasons set out above, I consider that the PASOC fails to plead a cause of action that could succeed at trial and leave should be refused on that basis. There are also other major difficulties of substance and form as identified above.
Given these conclusions, I do not consider it necessary to analyse the form of the pleading in much further detail. Suffice it to say that it contains a number of defects of form, which would justify the refusal of leave on that basis alone, although leave could be sought to re-plead if these were the only defects.
The first is rolled up pleading and inconsistency in relation to the plea of the general duty. Paragraph 10 which begins the narration of the facts said to ground the duty pleads that the Council took a number of steps to identify the plaintiff’s land ‘as being required and/or suitable for a public purpose’. There is a world of difference between identifying land as required for acquisition, and identifying it as suitable for acquisition, and if both were to be relied upon in the alternative then the pleading should expose the difference and its consequences, not bundle them together.
Further, paragraph 11 refers to the documents discussed above (together with some later developments) as identifying the plaintiff’s land as ‘suitable’ for a public purpose i.e. only suitable, not required. This would appear inconsistent, both with paragraph 10 and with the duty as pleaded in paragraph 15 where it is described as a duty to ‘reserve or acquire’ some or all of the plaintiff’s land.
A second overall deficiency of form is the failure to sufficiently identify the relevance of certain events pleaded in the narrative portion of the PASOC after the pleading of the Regional Growth Plan. Paragraph 10B pleads the appointment of a Planning Panel to consider amendments to the Planning Scheme to which the plaintiff made a submission, on which a Council officer commented. Paragraphs 12-13 plead a change of position by the Council in relation to the location of the new recreation reserve. The relevance of these pleaded facts is unclear. As discussed earlier, if the inclusion of information about the Planning Panel and its Report is intended to ground a claim for loss of opportunity, it does not do so. In her Further Reply Submissions, the plaintiff submits that:
The Plaintiff seeks to rely on the Council’s position taken at the Panel rather than the Panel recommendations themselves. In this proceeding it (sic) does not seek to challenge the Panel recommendations and the Panel Process but rather to impugn the Council’s conduct before and after the Panel Hearing, namely the failure of the Council to implement its own recommendations and stated priorities (as they had represented to the Panel that they would) and which the Panel recommended that they do.[63]
[63]Further Reply Submission [31(a)].
If this is the purpose, then the pleaded matters are evidence, not additional material facts. The detail of the Council’s change of position is also for evidence, and does not need to be, and should not be, pleaded.
The defendant in its written submissions makes many detailed drafting objections to the PASOC. In light of the fundamental defects discussed in these reasons, it is unnecessary to consider those objections in detail. I observe merely that many of the drafting objections taken are in my view sound, but if re-pleading were to be permitted should be capable of remedy by better drafting.
Conclusion
I will refuse leave to the plaintiff to file the PASOC.
I note that the plaintiff attached to her Further Reply Submissions a further iteration of a proposed amended statement of claim dated 18 June 2018, claiming in the title to the document that it was ‘pursuant’ to my orders of 4 June 2018. I have not heard the parties on this assertion, but it appears incorrect. I made no order on that date allowing the filing of a further proposed amended statement of claim. The orders merely permitted the filing of the Further Reply Submissions; reserved judgment on the application for leave to file the PASOC (not any further iteration of a proposed amended statement of claim); and adjourned the defendant’s application that the proceeding be dismissed to a date to be fixed. It follows that, subject to further submission, the further iteration dated 18 June 2018 was provided without leave. I have not read it for the preparation of these reasons, and caused the defendant to be informed that it was not required to read it.
I ask the parties to prepare proposed orders to give effect to these reasons, and, if they do not agree, I will hear them further. I will also hear the parties further if required on the defendant’s outstanding application that the proceeding be dismissed.
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