Constantine v Environmental Protection Authority

[2004] NSWSC 812

CITATION:	Constantine v Environmental Protection Authority & Anor [2004] NSWSC 812
HEARING DATE(S):	24, 25, 26, 27 February 2004 30, 31 August 2004 1, 2 September 2004
JUDGMENT DATE:	30 September 2004
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass at 1
DECISION:	There will be judgment for the defendant; the plaintiff is to pay the costs of the proceedings; the exhibits may be returned.
CATCHWORDS:	Dumping of illegal waste and illegal use of land - discretionary statutory powers of local council - common law duty of care - breach of duty and causation
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Evidence Act 1995 Pt 3.4, s38 Local Government Act 1993 Protection of the Environment Operations Act 1997 Supreme Court Act 1970, s135
CASES CITED:	Amaca Pty Limited v State of New South Wales [2004] NSWCA 124 Brodie v Singleton Shire Council (2001) 180 ALR 145 Edwards v Attorney General & Anor [2004] NSWCA 272 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Pyrenees Shire Council v Day (1998) 72 ALJR 152 Sullivan v Moody (2001) 207 CLR 562 Rowling v Takaro Properties Limited (1988) AC 473
PARTIES :	Mario Constantine (Plaintiff) The Environmental Protection Authority (First Defendant) Blacktown City Council (Second Defendant)
FILE NUMBER(S):	SC 20819/01
COUNSEL:	Mr J S Wheelhouse SC (Plaintiff) N/A (First Defendant) Mr G M Watson & Ms T L Wong (Second Defendant)
SOLICITORS:	Delaney Lawyers (Plaintiff) N/A (First Defendant) McCabe Terrill Lawyers (Second Defendant)

- 19 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

30 September 2004

20819 of 2001 Mario Constantine v The Environmental Protection Authority & Blacktown City Council

JUDGMENT

1 Master: On 8 October 2001, the plaintiff brought these proceedings against two defendants. A compromise has been reached with the first defendant. It has been excised from the current pleading. The proceedings are now only maintained against what was the second defendant (the defendant).

2 As at the commencement of the hearing, the plaintiff’s claim against the defendant was as formulated in the subsequently filed second further amended statement of claim (filed in court on 30 August 2004). The plaintiff seeks damages said to arise from breach of a common law duty of care.

3 The plaintiff is, and at all material times has been, the registered proprietor of certain land known as 230 Grange Avenue Marsden Park (the land). He ran a nursery on the land. The land was relevantly zoned as “General Rural 1(a)” under the Blacktown Local Environmental Plan 1983. The defendant is the relevant Local Government Authority in respect of the land and has statutory powers to deal with matters such as illegal dumping and illegal use.

4 On 23 September 1999, the plaintiff granted a lease of a portion of the land to Ms Wilkie (Wilkie). In or about October 2000, without the requisite consent of the plaintiff, she purported to sublet the sand and soil portion of the land (the property) to Graveyard Recycling Pty Limited (Graveyard) for a period of three years. Graveyard is a company controlled by Mark Reid (Reid).

5 During the term of the lease, there was an illegal use of the property which involved a substantial dumping of industrial waste. It gave rise to the claim for damages (which is made inter alia for the loss of the use of the property, legal costs, and for costs of the removal of the waste).

6 There are separate proceedings brought against Wilkie which were commenced on 9 July 2001. In those proceedings, the plaintiff was seeking possession and damages for breaches of the lease. Those proceedings were initially stood over to a further date to be fixed. Wilkie subsequently vacated the property. Since then, there has been an undefended hearing of the proceedings.

7 In an affidavit sworn for the purposes of these proceedings (the affidavit), the plaintiff said that towards the end of November 2000, he observed that the volume of the material being dumped started to increase and that it comprised mostly rubbish from building sites.

8 In the affidavit, he said that in or about late November 2000, when he became concerned about the amount of the waste material, he telephoned the defendant. He further said that he was told to ring Shane Borg at the EPA and given a telephone number.

9 He further said that immediately thereafter he telephoned Mr Borg (Borg) and had a conversation with him.

10 In an earlier version, he had deposed (at least in respect of the latter conversation) that it took place in or about the first week of December 2000.

11 Although Borg was not an employee of the defendant, it is said by the plaintiff that he was an agent of the defendant and that it was vicariously responsible for him. He holds a delegation from it as an inspector (see Exhibit L) and was assigned inter alia to its municipality. He is an investigation officer with an organisation known as RIDS (which was set up as a joint venture to deal with what was referred to as a serious problem of illegal dumping of industrial waste in the Western Suburbs). The defendant was one of the joint venturers (along with inter alia certain other local councils). RIDS was partly funded by the defendant. In November 2000 the RIDS Pilot Program was drawing to a close. It was thereafter renewed. At that time it was recognised as being successful. Although RIDS continues, the defendant is no longer involved.

12 In the affidavit, the plaintiff deposed to having other conversations with Borg and to constantly telephoning him (this is said to have taken place during December 2000 and January 2001) and having conversations with various other persons (including Wilkie, Ms Chitty (Chitty), who was an employee of the firm of solicitors known as Truman Hoyle, and Mr O’Connor (O’Connor), who was a partner in the firm of Houston, Dearn and O’Connor who were solicitors then acting for the second defendant).

13 The case as pleaded alleges that various representations were made to the plaintiff. In support of the allegations, the plaintiff adduced evidence to the effect that he had approached the defendant for the purpose of having it take action to stop the dumping, that he was led to believe that such action would be taken, that it would bring about a cessation of it and that there was no need for him to take action himself.

14 In the affidavit, he deposed to being told by Borg inter alia “We will take action …” and “We will stop it” and being told by O’Connor inter alia “There is no need for you to do anything”. He further deposed that O’Connor did not tell him to get separate advice.

15 In an earlier affidavit version, he had deposed to Borg saying “We should be able to stop it” and that the EPA would take action.

16 In the affidavit, he deposed that from approximately the first week in December 2000, he saw a rapid increase in the amount of building waste material. He deposed to seeing trucks carrying “skip bins” full of waste arriving at and a front end loader working on the property and saw the name “Graveyard Recyclers”. He further deposed that the number of persons working increased.

17 Broadly speaking, it is put on behalf of the plaintiff that during the months of December 2000 and January 2001 there was a substantial dumping of waste on the property which was allowed to take place because of inactivity on the part of Borg and the defendant. This inactivity was said to be the cause of his present problems and that what was done later by the defendant was too little too late. He makes no complaint as to the conduct of the defendant after early March 2001.

18 The hearing of the proceedings in this Court commenced on 24 February 2004. It continued during a further three days in that month. By then it had exceeded its time estimate. The hearing resumed on 30 August 2004. It was concluded on 2 September 2004.

19 At the commencement of the hearing, there was consent to the severance of the questions of liability and quantum. The court then proceeded with the hearing of the question of liability only.

20 I shall now return to other evidence relied on by the parties. It threw up conflict. The resolution of the conflict was material at least to the plaintiff’s case as it was initially put. I have closely observed all witnesses during the giving of testimony. In determining questions of credibility and reliability I have taken into account both demeanour and evidence.

21 The affidavit was sworn by the plaintiff, shortly before the commencement of the hearing on 20 February 2004. It was relied on in these proceedings together with inter alia material that had been adduced in the LEC.

22 The plaintiff was cross-examined at length. He had sworn earlier affidavits which had been used elsewhere (including an affidavit sworn on 27 September 2001 which had been used in the LEC proceedings). This affidavit contained earlier versions of certain of the material relied on to substantiate the alleged representations. The material was not only not identical with what appeared in the affidavit, but it threw up conflict and/or discrepancy.

23 During cross-examination, there was a sustained and effective challenge to the plaintiff’s credibility and reliability. I was left with the impression that his recollection could not be regarded as reliable. It was put to him that versions of conversations had been altered with the intent of improving his prospects in these proceedings. In my view, there was force in that contention. By the time that the evidence had been concluded, little was said in support of him being a reliable witness. I do not regard him as a reliable or credible witness.

24 Generally speaking, where there is conflict in the affidavit material, I do not accept what appears in the affidavit. I regard what is contained in the earlier material as being more reliable than what was said in these proceedings.

25 Material subsequently adduced threw up conflict between the evidence of the plaintiff and other witnesses. I shall deal with that matter in due course.

26 Two affidavits sworn by Mr Sheehy were tendered by the plaintiff (they had been used in the LEC proceedings). He gave some brief oral evidence.

27 I rejected the tender of the material contained in MFI 3 (including the transcript relating to evidence given by Messrs Stockbridge, Illy, Apps and Borg). For a variety of reasons I was not satisfied that the material was admissible as being admissions under Pt 3.4 of the Evidence Act 1995.

28 Even if I had been of a different view, I would have exercised the discretion of the court to refuse to admit the material pursuant to s135 of the Supreme Court Act 1970. It was very short on probative value and such value as it had was substantially outweighed by the danger that it might be unfairly prejudicial to the defendant and cause or result in undue waste of time.

29 The plaintiff called Messrs Baiada, Stockbridge, Apps and Borg. Certain of these witnesses had deposed to affidavit material used in the LEC proceedings. The affidavits were tendered and oral evidence was given. Despite earlier indication to the contrary, the plaintiff did not call Illy or Chitty.

30 I shall now briefly refer to certain of the evidence given by witnesses other than the plaintiff.

31 Apps is the senior statutory planner employed by the defendant. Stockbridge and Filmer were development control officers employed by the defendant. They worked under Apps. Baiada resides at 232 Grange Avenue Marsden Park. This property is adjacent to the section of the property that is used as a nursery.

32 Borg says that he was contacted by the plaintiff in early December 2000. Following the making of some initial enquiries, he inspected the property on 8 December 2000. He says that this was a few days after receiving the call from the plaintiff. He observed what he described as five to ten tonnes of general household waste. He took the view that waste transfer activities were being carried out. He carried out further surveillance. The view was taken that what was involved was over and above illegal dumping and that the investigation should be referred back to the defendant. He prepared a draft report. This was done on 11 January 2001. Because his co-ordinating officer (Illy) was on holidays, the report did not make its way to the defendant until early February 2001. The report was then given to Filmer. Borg made a further inspection on 4 February 2001. By that time, the accumulated waste was in the order of about 100 tonnes.

33 I should add that shortly after the commencement of his cross-examination, counsel for the plaintiff made application for leave to cross-examine Borg pursuant to the provisions of s38 of the Evidence Act. By consent, leave was granted to allow cross-examination in certain defined areas.

34 Filmer inspected the property on 2 February 2001. On 7 February 2001 he wrote to Wilkie giving notice of the intention of the defendant to issue an order under s121B of the Environmental Planning and Assessment Act 1979.

35 At the time, Stockbridge was the only permanent development control officer employed by the defendant. He had suffered injury in a car accident and was off work until January 2001. He then returned on a part time basis. Filmer was employed as a casual, doing inter alia work of the nature performed by Stockbridge.

36 Stockbridge inspected the property on 15 February 2001 and took photographs. This came to pass as a consequence of a routine inspection of the area. It had not been prompted by instruction from the defendant or RIDS. He observed material on the site and trucks coming on to the property. He saw a need for action. Instructions were given to Houston Dearn O’Connor by facsimile transmitted on that day. Mr O’Connor (O’Connor) of that firm proceeded to act on behalf of the defendant and gave notice of the commencement of proceedings seeking urgent interlocutory relief.

37 Apps gave inter alia evidence of hearing conversation that passed between O’Connor and the plaintiff at the time of the interlocutory application to the LEC. He gave the following evidence:-

Q. Could you tell his Honour what you heard Mr O'Connor say to Mr Constantine?
A. Certainly. Master, at the - after the hearing I was in the interview room outside the court with Mr O'Connor, who is one of council's solicitors, and Mr Constantine. There may have been other people there, but I can't recall. After Mr O'Connor spoke to me about what the implications were for the interlocutory hearing, and what I should report back to my superiors, he turned around to Mr Constantine and said to him, "What action have you taken regarding the lease?" That was in terms of counsel [sic] may not get what it wants, it may not be successful obtaining the interlocutory relief that it wants. He then said to Mr Constantine, "What action have you taken regarding the lease on the land?" From my recollection, Mr Constantine replied to Mr O'Connor, "Nothing as yet. I want to see how this court matter pans out", or words to that effect.
Q. Did Mr O'Connor then say something to Mr Constantine?
A. I believe he said, "You really should be seeking your own legal advice regarding the lease of the land.”
Q. I want to put an alternative to you. It has been suggested in this court that in fact Mr O'Connor discouraged Mr Constantine, telling him that he didn't need to take his own proceedings. Did you hear Mr O'Connor say anything resembling that?
A. Certainly not.
Q. It has been suggested in the court that Mr O'Connor said words which were to the effect that, "You don't have to take proceedings, the council will do it for you." Did you hear any representation of that kind or nature?
A. I definitely did not. In fact, I'd find that hard to believe from a respected legal practitioner. [Tr pp134-135]

38 Baiada gave a description of stockpiled demolition material at the rear of the nursery and adjacent to the boundary of his property and a creek. He saw large numbers of trucks coming on to the property and a steady increase in the rubbish pile. All he had ever seen were trucks coming on to the property and leaving material behind. He did not see any vehicles going out laden with that material.

39 Baiada contacted the defendant and informed it that he wanted the material moved. He said that during the period from December 2000 to January 2001, there was a very fast build-up of the material.

40 The respective evidence of the plaintiff and Borg threw up various areas of conflict. Where there is conflict I prefer the evidence of Borg. Whilst there were discrepancies in his evidence, he gave me the impression that he was doing his best to give truthful and reliable evidence.

41 The defendant called only one witness (O’Connor). O’Connor’s firm had been placed on the panel to be used by the defendant. He received instructions to act in the matter on 15 February 2001. He had the conduct of the proceedings on behalf of the defendant in the LEC.

42 O’Connor had conversation with the plaintiff, Chitty (who was a clerk employed by the firm who had been acting for the plaintiff) and Borg. Chitty supplied material for the purposes of the LEC proceedings (including a copy of the lease to Wilkie).

43 O’Connor first went to the property on 16 May 2001. He first met the plaintiff in person on 28 February 2001. He denies having a meeting with the plaintiff just prior to 22 February 2001.

44 He gave the following evidence:-

Q. And Mr Constantine has told the Master that they had a meeting with you, but let's assume now it was by telephone and that you told him that Blacktown Council was taking proceedings against Wilkie and Graveyard, and that "any action is best left to Blacktown City Council". Did you ever say anything like that to Mr Constantine?
A. No, I did not.
Q. Are you confident of that?
A. I am confident of that.
Q. Mr Constantine then says to Master this, that occasion that on 22 February 2001 he met with you on his property at Marsden Park for the swearing of the affidavit, is that correct?
A. That's not correct.
Q. If you met with him on that day, or at any time to, as to present the affidavit to him for swearing?
A. No, I did not. All we did was we faxed the draft affidavit through to him, and we arranged for a courier to collect it once we were advised that that was available for collection.
Q. Indeed, do you have instructions who attended that matter on your behalf?
A. My secretary at the time was Christie (?) and I left it with her to pursue the, chasing up of the affidavit and also any matters in relation to the service of the application at that time. [Tr p184]
… … …

Q. Mr O'Connor, Mr Constantine says that during either one or maybe more than one of these conversations he had with you, you said to him words like these, "there is no need for you to do anything. It is all going to court, and we should get orders to stop it". That was what you were saying to Mr Constantine, did you say anything to him like that?
A. I didn't say anything like you need do nothing. I may have said that was going to Court in context of doing affidavits. I may have said whichever - remember - of getting orders, but I never told him no do nothing. [Tr p185]

… … …
Q. Mr O'Connor did you subsequently have a conversation with Sandra Chitty on or about the 26 March 2001?
A. I did.
Q. And can you recall the terms of that conversation?
A. I received a note to say to please ring her urgently. I telephoned her, I telephoned her, and I told her what stage we are at in the proceedings. She said to me that words to the effect, words to the effect, I had not been looking after the matter, another solicitor will.
She said can you send a note to me explaining what happened so I can refer it on to the solicitor who is dealing with the matter? I said to her I can send copies of correspondence sent to council but I will have to get the okay for that, and she then said to me it's Mario did instruct us to commence proceedings to cancel the lease, and to obtain possession of the property, but it was her fault she had been busy and has been away. [Tr p186]

… … …

Q. Mr O'Connor, at the conclusion of the hearing before Justice Lloyd did you have a conversation with Mr Constantine?
A. I did. The hearing was concluded and his Honour reserved his judgment until about 2.00 p.m. or thereabouts, and before we went I called the witnesses. I spoke to Mr Constantine, and I said to him if we are unsuccessful I suggest to you go to see your solicitors with a view to taking proceedings to evict the people from the premises, or words to that effect.
Q. Mr O'Connor, did Mr Constantine do anything, or say anything to indicate to you that he had rejected that suggestion?
A. No.
Q. Or that he qualified it?
A. No.
Q. Mr O'Connor, it's been said throughout that you used words at various times to indicate to Mr Constantine that he should not do anything himself that rather Blacktown City Council would do everything that it was necessary for him to do to secure the preservation of his property, is that true and accurate?
A. No, it's not true.
Q. Did you ever use words to that effect?
A. No.
Q. It's even been said Mr O'Connor that you advised Mr Constantine regarding those same matters, did you ever take up an advisory role with him?
A. No.
Q. Did ever use words to that effect that Mr Constantine need do anything, but later Blacktown City Council would attend to preserving his property in any discussion you had with Sandra Chitty?
A. No. [Tr pp186-187]

45 The material throws up sharp conflict between the plaintiff and O’Connor concerning inter alia significant conversations said to have taken place between them.

46 Where there is conflict between the plaintiff and O’Connor, I prefer the evidence of the latter. As I understand the position put by counsel for the plaintiff, such a finding is not contested.

47 Mr O’Connor was an impressive witness. He was not shaken in cross-examination. Indeed, there was little real challenge to his evidence (including his versions of conversations had with the plaintiff). His versions were supported by his file notes.

48 The plaintiff did not adduce any evidence in reply.

49 I now turn to what has been established in general by the evidence.

50 I shall first look at the period that preceded the plaintiff telephoning the defendant and refer to what emerged from his affidavit and cross-examination.

51 What was leased to Wilkie was for the purposes of her business of swimming pool and a sand and soil yard. The property was clearly visible from the plaintiff’s office at the nursery. The plaintiff told her not to enter into any sub-leasing arrangement with a man known as Andrew. He saw any such sub-lease as a breach of the lease. Andrew had been seen on the property in August 2000, he was known to be associated with the delivery of bricks, concrete and other rubbish to the property and the plaintiff knew that Andrew was conducting a business in relation to this on the property. The plaintiff was told by Wilkie that it was necessary to collect 30,000 tonnes of rubbish so that it could be recycled profitably and he knew that it was her intention to bring such rubbish onto the property. The delivery of rubbish to the property continued until about October 2000. The plaintiff knew that she was in breach of the lease. He gave Wilkie a month’s free rent to clean up the property. He directed her to have the rubbish removed and she failed to do so. After Andrew left, the plaintiff was introduced by her to another man (Mark). He knew that she wanted to grant a sub-lease to him. He refused to consent to such a sub-lease. He later came to know Mark as Mark Reid. He knew that Reid wanted to conduct a recycling business on the property and that he was thereafter in daily attendance at the property (with regular deliveries of rubbish). He came to know that there had been a sub-letting to Reid. He had an expectation that at least 30,000 tonnes of rubbish would be brought to the property.

52 In December 2000 a group (“the Marsden Park Action Group”) held a protest on the land. The police attended. It is said that “the Bandito Bikies” also arrived. The protesters left.

53 The plaintiff made first contact with the defendant (and Borg) in early December 2000 (the defendant told the plaintiff to telephone Borg). Borg attended the property on 8 December 2000. Thereafter, he carried out surveillance. During December and 2000 and January 2001 there was regular contact maintained between the plaintiff and Borg. Borg prepared a draft report. It was completed on or about 11 January 2001.

54 During December 2000 and January 2001, the volume of material dumped on the property substantially increased. During December, the plaintiff had conversations with Wilkie about the rubbish. He told her that the rubbish was in breach of the lease. She made promises as to its removal. He said that he relied on those promises. I do not accept his evidence on that matter. The promises were broken by her.

55 RIDS took the view that it was not a case of just illegal dumping, but one of illegal use of land and therefore a matter for the defendant.

56 The draft report did not make its way to the defendant until early February 2001. Prior to that time, there was no communication between RIDS and the defendant.

57 There were further inspections of the property. One by Filmer on 2 February 2001 and one by Borg on 4 February 2001. On 7 February 2001, Filmer wrote to Wilkie. This communication failed to have impact on the dumping activities and nothing further was done by the defendant in respect of the making of an order.

58 On 15 February 2001, Stockbridge inspected the property and took photographs. This inspection did not arise from what had been earlier done by RIDS and Filmer. On that day, instructions by Stockbridge were given to O’Connor to commence proceedings. On the same day, O’Connor then advised Wilkie by facsimile of those instructions and sought an undertaking. It was not given. Subsequent correspondence directed to Reid also did not produce any undertaking. Thereafter, O’Connor proceeded with the preparation of the application to be made to the LEC. This action was independent of and overtook what was being done by Filmer.

59 During March 2001, the depositing of rubbish on the property continued. The plaintiff said that from March it “boomed in size”. He estimated that it doubled in size during the period March to July 2001.

60 Action was taken by the second defendant in the Land and Environment Court (LEC). The matter came before the LEC on 28 February 2001 for the purpose of seeking interlocutory relief. It could not be dealt with on that day and was stood over to 6 March 2001. On that day, the application for interlocutory relief was refused. In making the application, the defendant did not offer an undertaking as to damages. The application was refused for a number of reasons (including because of insufficient risk to the environment to warrant the making of an order, balance of convenience and failure to offer such undertaking).

61 From March to June 2001, the plaintiff accepted rent and other payments in respect of electricity from Graveyard (see overdue account – Exhibit 1).

62 The dumping ceased in July 2001. Subsequently, interlocutory relief was obtained in August 2001. The plaintiff said that he had not seen Wilkie on the property since October 2001.

63 The proceedings in the LEC continued. The original defendants were Graveyard, Reid and Wilkie. The plaintiff was later added as a party (in August 2001). Relief was granted against all defendants except the plaintiff (inter alia removal of the waste was required). This took place on 6 December 2001. At that time, the proceedings were not being defended by Graveyard and Wilkie. The relief obtained against Wilkie was subsequently overturned on appeal.

64 Contempt orders were made against Reid. In about August/September 2002 he did some levelling work on the site. Since October 2003 he has removed a part of the material from the site. Substantially, the waste remains on the property.

65 I now turn to what flows from the evidence adduced by the parties.

66 At all material times, the plaintiff has had (and was aware that he had) personal remedies available to him (inter alia to recover possession). I do not accept that representations were made to him to the effect that he should not exercise those remedies or take court proceedings. I am satisfied that the solicitor for the defendant brought to his attention the matter of the need for him to get his own legal advice. There is material that suggests that he did get legal advice. Whether or not that be the case, he had access to solicitors. The evidence establishes that for various reasons he was loath to take action to have Wilkie and others evicted. One of the reasons was that he did not wish to lose rent payments. There were other reasons (including, he did not want to be seen as the person taking action and he did not want to be left with the rubbish). He did not bring proceedings himself until 9 July 2001. By then, the dumping had either ceased or was about to cease.

67 The material suggests that Wilkie was a known menace. It suggests that those she was dealing with may have had the capacity to generate fear. Neither Wilkie nor Reid seemed to be of the disposition to comply with notices and non-court orders. A court order seemed to offer the only real prospect of bringing a halt to their activities.

68 As the defendant was a participant in the RIDS project, it referred illegal dumping activities to RIDS. Borg handled such activities when the land was in the defendant’s municipality There is no evidence of any arrangements being in place requiring communication between RIDS and the defendant whilst a dumping case was being handled by RIDS. The defendant dealt with illegal use cases itself. There were two methods of obtaining assistance from the defendant in these matters. There was a form that could be completed. Alternatively, activity could be stimulated by telephone contact with the defendant and the matter would then be placed in the hands of Stockbridge.

69 I mention the matters contained in the preceding paragraph, as a matter of completeness, because the case as originally presented involved complaint as to lack of system. Ultimately, these matters appeared to lose significance.

70 In essence, what was ultimately alleged against the defendant was a failure to act promptly. The plaintiff looks to what it sees as relative inactivity that took place between early December 2000 and early February 2001. It was during this period, that the request for action by the plaintiff was in the hands of Mr Borg and RIDS. It is said that Borg did no more than make an inspection and conduct some surveillance despite having powers to do other things. His draft report of 11 January 2001 awaited Illy’s return from holidays. Nothing was done between 11 January 2001 and early February 2001 when the report was given to Filmer. It was during December 2000/January 2001 that a substantial increase in dumping took place. It is said that it was at this time damage was suffered as a consequence of the defendant’s breach of duty. It is said that if the defendant had acted promptly, only a relatively minor removal and cleanup task would have been involved. It is said that the delay brought about what came to be a massive removal and cleanup task involving a cost that no party seems to have been willing to incur.

71 It seems to me that this is a case which turns on its own particular circumstances. These have been earlier mentioned. For completeness, I shall refer again to certain of them.

72 The plaintiff was the owner of the land on which others carried out the activities which caused the harm. One of them came to be legally on the property by reason of commercial arrangements entered into with the plaintiff. The dumping problem had come to his attention as early as August 2000. He was aware that it was continuing and he had an early awareness of its substantial potential (30,000 tonnes). At the material times, he was aware that he could terminate the lease. He had personal remedies available to him (inter alia termination of the lease and court action to evict the third persons). He was made aware of the need to get his own legal advice. He chose not to exercise personal remedies whilst the dumping continued. Instead, he allowed those persons to remain on the property and thereby continue with their activities. Rather than take action himself, he turned to the defendant for assistance. He did not do this until December 2000. Whilst he was looking to it for help he continued to receive rent and other payments from those who were then involved in the causing of the harm to the property. He was told that the interlocutory application may not be successful. After the defendant commenced court proceedings, the dumping continued (it doubled in size). The plaintiff did not exercise his personal remedies until about the time of the cessation of the dumping.

73 In support of his submissions, the plaintiff looks to various decisions (including Pyrenees Shire Council v Day (1998) 72 ALJR 152 and Brodie v Singleton Shire Council (2001) 180 ALR 145). It is contended that what was said in these cases supports a view that a municipal council will have a duty to act by exercising its powers to avert harm to an individual or his or her property where the authority has a significant and special measure of control over the safety of the individual and his or her property.

74 Counsel for the plaintiff has made lengthy and detailed submissions (both in writing and orally) on inter alia the question of the statutory powers had by the defendant to avert the harm suffered by the plaintiff. The plaintiff looked to powers conferred by the Local Government Act 1993 (including such powers as are conferred by ss124, 125 and 191), powers conferred by the Protection of the Environment Operations Act 1997 (including such powers as are conferred by Chapters 4 and 5) and powers conferred by the Environmental Planning and Assessment Act 1979 (including such powers as are conferred by ss123 and 124). Many expressions were used to describe the scope of the powers conferred by the statutory regimes (one was “extensive armoury of powers”). Emphasis was placed on the many powers had by the defendant which did not require resort to curial process (such as powers to inter alia give notices, make orders, impose penalties, take steps itself to remedy the harm and then to look to others to recoup the costs of what had to be done).

75 For present purposes, it seems to me that it is unnecessary to make more detailed reference to the various powers conferred by the statutory provisions. Should a different view be taken, such reference may be found in the plaintiff’s revised submissions. I shall return to the statutes in due course.

76 The defendant contends that no relevant common law duty arose in the circumstances of this case. In answering the plaintiff’s claim, it looks to various other decisions (including Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; Sullivan v Moody (2001) 207 CLR 562; Amaca Pty Limited v State of New South Wales [2004] NSWCA 124; Edwards v Attorney General & Anor [2004] NSWCA 272). It described the plaintiff’s claim as being unreal in a number of respects and as an attempt at “stretching the law”.

77 The plaintiff argues that Ryan is distinguishable from the present case. I shall return to this matter in due course.

78 The presentation of the plaintiff’s case underwent transformation during the trial. As at the commencement of the hearing, it was presented as being that set forth in the current amended pleading. By the time of the conclusion of the evidence, any case based inter alia on representations had at least largely foundered. What was presented during reply (it was put forward after counsel for the defendant had made his submissions on the question of a duty of care) came to be the ultimate statement of the plaintiff’s case. It was a product of significant restructure (at least partly as a result of an acceptance that the plaintiff’s evidence as to representations could not be relied on). The relevant circumstances relied on by the plaintiff underwent change. I shall return to them shortly.

79 In its final form, the argument was that the common law duty of care arose from what was a modified combination of circumstances (including the armoury of powers had by the defendant).

80 In a written response to the submissions of the defendant, counsel for the plaintiff argued:-

… … …
The present case concerns a situation where:
(i) There was a request made by the Plaintiff to act.
(ii) There was the supply of information concerning specific activity at a specific location in the Defendant’s local government area.
(iii) The request made and the information concerned a risk of injury to the property of the Plaintiff that was foreseeable and known to the Defendant.
(iv) The Defendant had a significant and special measure of control over both the particular activity and the Plaintiff’s property.
(v) The Defendant did not refuse to respond to the Plaintiff’s request but commenced to exercise its duties and functions in response to the Plaintiff’s request.
(vi) The Defendant’s response, given the information it had was not a reasonable exercise of its duties and functions.
… … …
The Plaintiff in this case is a member of a very limited class, namely:

The owner of property in the Defendant’s area, which property was the subject of the threat of harm from a particular know activity

which activity was the subject of a request from the Plaintiff to prevent and the recipient of a response by the Defendant it would act.

There are four primary distinguishing features between this case and Barclay Bros:
(i) No prior request,
(ii) The harm in Barclay was remote, and
(iii) There was no specific requirement on the council to exercise its discretion on whether or not to exercise its powers but in this case there was a specific request to the council to exercise its powers and
(iv) A decision by the council to exercise the powers and the discretion to do so.

81 It was further said that the defendant was in breach of the duty of care in that its response was not reasonable in the circumstances.

82 As earlier mentioned, any case founded on representation seems to have been abandoned. However, for completeness, I shall observe that if that not be the case, it is my view that the plaintiff has failed to make out the alleged representations.

83 Before proceeding further, I should also mention that there is dispute between the parties as to whether or not the defendant was vicariously liable for Mr Borg. It is unnecessary to resolve that issue. The case can be disposed of without determining it.

84 The armoury of powers relied on by the plaintiff fall within the category of discretionary powers. The plaintiff was looking to the defendant to remedy harm done to his own property arising out of commercial arrangements made by him in respect of it. His case alleges a duty to control the conduct of others (Amaca at para 159). I am not satisfied that he was unable to adequately safeguard himself against the harm.

85 Section 7 of the Local Government Act expresses the purposes of the Act. Section 3 of the Protection of the Environment Operations Act expresses the objects of that Act. Section 5 of the Environmental Planning and Assessment Act expresses the objects of that act.

86 In my view, the proper construction of this legislation (including the expressed purposes or objects and the provisions relied on) fails to give support to the plaintiff’s case.

87 I do not consider that the statutory powers were intended to benefit a very limited class as alleged. It seems to me that the legislation was intended to provide inter alia powers for the protection of what may be described as the community or the public generally. Further, I do not consider that it was intended by any of the statutes to impose a common law duty to protect an individual landowner from harm to his property by third persons. I do not accept that the provisions relied on were intended to confer a personal right to sue.

88 A recognition of a duty of care in the present case would render local councils liable to massive obligations or excessive burdens (see Ryan at 324 and Rowling v Takaro Properties Limited (1988) AC 473).

89 I do not consider that the alleged four primary distinguishing features assist the plaintiff in circumstances of the present case.

90 In the circumstances of this case, I am not persuaded that the plaintiff was owed the duty of care as alleged.

91 Whilst the reaching of this decision disposes of the plaintiff’s claim, I should briefly mention that there are other obstacles confronting him. These are the matters of breach of duty and causation.

92 I am not satisfied that the response was unreasonable. The plaintiff did exercise one of its powers. Whilst there may have been some delay preceding the bringing of court proceedings, it seems to me that it was reasonable to take the view that it was the power most likely to produce the results required by the plaintiff. It is accepted that such delay would have lost whatever significance it had upon compliance with the orders. The LEC proceedings produced orders, which if enforced, would have brought about the remedy required by the plaintiff. The evidence (or the lack of it) is unhelpful on the question of why effective enforcement has not yet taken place and what lies ahead in the future. This conclusion need not be pursued as it is not a matter of complaint raised by the plaintiff.

93 The material suggests that other remedies (such as the giving of notices and the making of orders) would have been ineffective. It seems unlikely that they would have impeded the activities of the third parties. Further, it seems to me that if it be assumed to the contrary that such notices and orders would have made impact on the third persons, the likelihood was that they would have left the property without doing any remedial work and it may have been difficult to enforce any penalties thereafter. It seems to me that to contend that the defendant should spend nearly $5m of ratepayers’ money to remedy a harm caused to one ratepayer is an indulgence in fantasy.

94 For completeness, I should mention at one stage a point was taken that the initial interlocutory action failed by reason of the defendant not offering an undertaking as to damages on 6 March 2001. Whilst the argument may have been abandoned, I should stress that it was only one of the reasons given by Lloyd J for not granting interlocutory relief. Also, there is authority for the proposition that the failure to give such an undertaking was regarded by that court as having little weight. I consider that the point is lacking in substance.

95 The plaintiff bears the onus of satisfying the court on the balance of probabilities that it is entitled to a judgment on the question of liability. In my view, it has failed to discharge that onus.

96 There will be judgment for the defendant.

97 The plaintiff is to pay the costs of the proceedings. The exhibits may be returned.

Last Modified: 10/05/2004