Dillon v Gosford City Council

[2002] NSWCA 126

Reported Decision: (2002) 120 LGERA 444

New South Wales

Court of Appeal

CITATION:	Dillon v Gosford City Council [2002] NSWCA 126
FILE NUMBER(S):	CA 40666/01
HEARING DATE(S):	16 May 2002
JUDGMENT DATE:	9 July 2002
PARTIES :	Kevin Walter Dillon - appellant Gosford City Council - respondent
JUDGMENT OF:	Spigelman CJ at 1; Meagher JA at 39; Hodgson JA at 61

LOWER COURT JURISDICTION :	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	LEC 30339 of 2001
LOWER COURT JUDICIAL OFFICER :	Talbot J

COUNSEL:	Appellant: In Person Respondent: Mr P Tomasetti
SOLICITORS:	Appellant: In Person Respondent: P J Donnellan & Co
CATCHWORDS:	LOCAL GOVERNMENT - REAL PROPERTY - compensation for injurious affection - whether right to claim extinguished by repeal of provision creating the right - whether claim within prescribed time limit
LEGISLATION CITED:	Environmental Claim and Assessment (Savings and Transitional Provisions) Act 1979 Environmental Planning and Assessment Act 1979 Interpretation Act 1987 Local Government Act 1919 Local Government (Consequential Provisions) Act 1993 Miscellaneous Act (Planning) Repeal and Amendment Act 1979
CASES CITED:	Agua Marga Pty Ltd v Minister of State for the Interior (1973) 22 FLR 136 Dillon v Gosford City Council (unreported, 7 April 1995) G F Heublein & Bro Inc v Continental Liqueurs Pty Ltd (1963) 109 CLR 153 Jones v Gosford Shire Council (1975) LGRA 368
DECISION:	Appeal dismissed with costs.

CA 40666 of 2001
LEC 30339 of 2001

SPIGELMAN CJ
MEAGHER JA
HODGSON JA

Tuesday 9 July 2002

KEVIN WALTER DILLON v GOSFORD CITY COUNCIL

Judgment

1 SPIGELMAN CJ: In this matter I have had the advantage of reading the judgment of Meagher JA in draft. His Honour sets out the pertinent background facts, the issues and the principal sections of the legislation and planning instruments, with which this appeal is concerned.

The Prior Proceedings

2 Meagher JA refers to the previous judgment of this Court in Dillon v Gosford City Council (unreported, NSWCCA, 7 April 1995), particularly to the judgment of Sheller JA, with whom Handley JA agreed. His Honour characterises that judgment as resulting in a finding that the earlier permission to conduct a quarry had remained “in force” until 18 February 1977. This is also how Talbot J proceeded. I do not read the judgment in that way.

3 In his judgment, Sheller JA first dealt with an issue of law raised on a Notice of Contention by the Council, to the effect that cl 51 of the Gosford Planning Scheme Ordinance could not apply on the basis that the 1963 approval was not any form of positive authority but operated to displace a prohibition otherwise imposed by Ordinance 105. It had submitted that, when Ordinance 105 ceased to affect the subject land, any approval terminated. The Council submitted, accordingly, that cl 51 did not preserve the prior approval and that there was not anything “in force” in February 1977 for the purposes of cl 54 of Interim Development Order 100.

4 Sheller JA rejected this submission but did so on the basis of an assumed fact, namely that the conditions of the original 1963 approval had been met. His Honour described the combined effect of cl 51 and the 1963 approval in the following terms:

Together they allow the work to be carried on if the conditions of commencement were met . [Emphasis added]

He again referred to the approval in the following terms:
It remained in force under cl 51, if the conditions were satisfied … [Emphasis added]

His Honour rejected the Council’s submission on the Notice of Contention when “put in this way” as a legal point and concluded that the original approval was “capable” of being in force by reason of cl.51.

5 I do not understand his Honour’s references to the “conditions” that had to be “met” or “satisfied” as being restricted to the original conditions on the development approval under Ordinance 105, which conditions did not pose a requirement as to the commencement within a period of time. These references extended to the “condition” imposed by cl.51, i.e. a requirement of substantial commencement within twelve months of 24 May 1968. His Honour went on to say:

The appellant’s case was that the approved development had been commenced by Gosford Excavations well before the commencement of the Planning Scheme Ordinance. In the circumstances of this case, if it had not been then commenced, the approval would not have remained in force under cl 51 of that Ordinance. The appellant did not argue that the work had been substantially commenced within a period of twelve months after the appointed day, 24 May 1968.

6 This is, in my opinion, a finding that, as no substantial commencement occurred before 24 May 1969, cl.51 did not, in fact, have the effect of preserving the prior position. This is the same conclusion as that reached by Powell JA.

7 His Honour then dealt with the factual submissions of the Appellant in that case based on an assertion that there had in fact been a commencement under cl.51 before 24 May 1968. It was common ground that there had been some activity before that date but the issue was whether or not that activity constituted substantial commencement. Sheller JA concluded that the work that had occurred was “preliminary and incidental and did not constitute a commencement of work for the purpose of a quarry”.

8 At this point of his judgment his Honour referred to what occurred on the land until 1977. He held that that activity did not “support a conclusion that the land was being used for the purpose of a blue metal quarry immediately before the commencement of IDO 100”. This issue arose because of the reliance placed by the Appellant on the provisions of s.342U of the Local Government Act 1919, which is not set out by Meagher JA and provides, relevantly:

(4) …

Provided that nothing in any interim development order shall prevent the continuance of the use of any land or building for the purposes for which such land or building was lawfully used immediately before the coming into operation of the interim development order.

His Honour found that there was no such use prior to the coming into force of IDO 100.

9 Sheller JA had earlier referred to submissions made with respect to cl.54 of Interim Development Ordinance 100, which IDO had effect from 18 February 1977. He dealt with the issue on the basis that, if that clause was to apply at all, it required commencement within a period of twelve months from 18 February 1977 and that there was “no suggestion” that there had been any such commencement. Accordingly, it did not avail the Appellant.

10 His Honour further dealt with cl.54 and concluded:

In my opinion from 18 February 1978, twelve months after the appointed day in IDO 100, work on the subject land could no longer be commenced pursuant to the 1963 interim development approval. Clause 54 of IDO 100 was not satisfied.

11 It is this passage that has led Talbot J and Meagher JA to conclude that Sheller JA held that the approval remained in force until February 1978. The head note also suggests this to be the case. I do not understand Sheller JA to make such a finding. I believe his Honour was dealing with one of a number of alternative submissions, i.e. he was proceeding on an assumption, not making a finding, that the approval remained in force.

12 There are two respects in which cl.54 may not have been satisfied. First, there was no consent “in force” on 18 February 1977 and, secondly, that there had been no commencement within the period of twelve months referred to in cl.54. His Honour in fact found both of these matters adversely to the Appellant. Nothing was “in force” within the meaning of cl.54, by reason of the fact that cl.51 of the Gosford Planning Scheme Ordinance did not have the effect of continuing the approval, because there had been no substantial commencement within the period of twelve months. His Honour also found, on the assumption that this was the relevant time, that there had been no commencement within the twelve months for which cl.54 of the 1977 IDO provided. His Honour does not specify which of these two matters he particularly had in mind in the passage I have quoted from his Honour’s judgment, but it does not matter for present purposes which it was.

13 It appears that Powell JA in the prior proceedings believed that his reasons for dismissing the appeal were different from those of Sheller JA. His Honour concentrated on the effect of the Gosford Planning Scheme Ordinance and the failure to commence any relevant use within twelve months of that Ordinance, i.e. prior to 24 May 1969 and accordingly, that cl.51 of the 1968 Ordinance did not operate to maintain the prior approval in force. On my reading of Sheller JA’s judgment, his Honour did in fact come to the same conclusion as Powell JA for the same reasons. Sheller JA, however, also dealt with other arguments advanced by the Appellant in that case and, on the Notice of Contention, by the Respondent. It may not have been necessary to deal with all these arguments but, unlike Meagher JA, I do not see any contradiction between the judgments in the prior proceedings.

The Claim Under s.342AC

14 The Appellant sought to escape the effect of these adverse findings upon his right to make a claim under s.342AC of the Local Government Act 1919 on the basis that the date on which his interests were “injuriously affected” should not be understood as having occurred as and from the coming into effect of the Gosford Planning Scheme Ordinance, relevantly, on the expiration of twelve months under cl.51 of that Ordinance. The Appellant contended that he retained some kind of “contingent right” to make a claim until some other act occurred. He nominated either the date on which the Council first notified him that the quarry was unlawful in 1993, or the date of the effect of the order made at the end of the prior litigation in 1996. In this, as in a number of other respects, the Appellant sought to canvas matters found against him in the prior proceedings. In any event, in my opinion, these submissions should be rejected. The injurious effect occurred at the latest on 24 May 1969. No aspect of the legislative scheme required some further act on the part of the Council, before a relevant effect could be said to occur.

15 Section 342AC(1) identified the persons entitled to make a claim and established the right in the following terms:

342AC(1) Subject to the provisions of this Part any person -
…
shall, if he institutes proceedings to enforce a claim therefor, within the time prescribed, be entitled to obtain, from the responsible authority concerned, compensation in respect of such injurious affection, damage, liability or expenditure.

16 Section 342AC(5)(b) states that the time within which proceedings may be instituted is to be as prescribed by Ordinance 107. Clause 7 of Ordinance 107 provides:

(2) Proceedings in respect of any such claim may be instituted at any time before the expiration of four years from the date when the claim arose, or before the expiration of two years from the date on which the responsible authority refused to pay the claim, or before the 31st December, 1971, whichever is the later date.

17 Meagher JA states that Talbot J found that the claim must fail because it had not been instituted within the time limits in cl.7(2) and rejects this conclusion. With respect to this matter, Meagher JA relied on the proposition that as no claim was made until March 1999 the claim was within cl.7(2) understood as applying:

(a) Four years from the date of the injurious affection.

(b) Two years from the date of refusal of the claim.

(c) 31 December 1971.

18 The passage in the judgment of Talbot J to which Meagher JA was referring is as follows:

Time limit (b) never arose. No claim was made within time limit (a) or (c). In those circumstances, s342Y(4)(b) of the Local Government Act could not have operated to preserve any right, liability or legal proceedings accrued ‘by virtue of or in relation to or under the prescribed scheme’ at the date it was suspended by IDO 100.

19 It is significant that Talbot J was only dealing with the specific statutory context of s.342Y(4) which, relevantly, was in the following terms:

342Y(4) Where the provisions of any prescribed scheme are, pursuant to subsection (1), suspended after the commencement of the Local Government (Amendment) Act, 1971, then -
(a) …
(b) the suspension shall not affect any right, liability, obligation, penalty or legal proceedings accrued, incurred or instituted by virtue of or in relation to or under the prescribed scheme the provisions of which were so suspended.

20 When Talbot J noted that “time limit (b) never arose”, he was indicating that there had been no refusal to pay a claim prior to the time at which the Gosford Planning Scheme Ordinance was suspended by IDO 100. He was not directing attention to the possibility of the making of a claim thereafter.

21 Talbot J had interpreted the judgment of Sheller JA in the prior proceedings in the way that Meagher JA interprets that judgment, i.e.

The coming into operation of IDO 100 and the restrictions imposed by or under that instrument resulted in the loss of the opportunity to act on the consent.

22 His Honour found that it was cl.54 of IDO 100 that ultimately had the potential to cause injury to the Appellant. On this basis his Honour implicitly concluded that the ability to make a claim was not itself a “right” within s.342Y(4)(b). Nor did any of the other words in that paragraph apply. His Honour concluded that the “contingent rights” on which the Appellant relied before him “did not survive” the suspension of IDO 100.

23 The issue that arises in this case is the determination of the relevant date “on which the responsible authority refused to pay the claim” within cl.7 of Ordinance 107. Meagher JA concludes that a deemed refusal occurred on 16 May 1999 and the Appellant’s action was commenced within two years of that date.

24 Meagher JA concludes, as did Talbot J below, that cl.13 of schedule 3 of the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979, had the effect of excluding a claim for compensation under s.342AC that was made for the first time after the appointed day for the purposes of that Act, i.e. 1 September 1980.

25 Section 342AC established a right to compensation for a person who “institutes proceedings to enforce a claim” for compensation for, relevantly, injurious affection, within the time prescribed. By cl/7(2) of Ordinance 107 the time prescribed may be extended indefinitely if no claim is made upon the Council. This arises because one of the periods identified expires two years after the Council has “refused to pay the claim”. This result may appear to be surprising. However, no way of reading down the provision was suggested to the Court.

26 The validity of cl.7(2) as an exercise of the power to prescribe “the time within which proceedings under this section may be instituted” was upheld by Waddell J in Jones v Gosford Shire Council (1975) 33 LGRA 368. The effect in the present case is that no consequence arose because decades passed before a claim for compensation was made. This may very well have implications for the valuation of the injury suffered by a claimant and whether or not the claimant is entitled to interest, but the present proceedings involve a strike-out application for which issues of quantification are not pertinent.

27 The argument advanced to defeat the apparent operation of s.342AC(1) turns on its repeal as and from September 1980 and the particular transitional provision made in cl.13 of Schedule 3 of the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979. As set out by Meagher JA cl.13 preserves a claim for compensation that had in fact been made under s.342AC before the repeal of that section. Talbot J and Meagher JA both conclude that this has the consequence of preventing a claim being made under the statute for the first time after the date of its repeal.

28 A submission was made that Ordinance 107 continued in force till 1993 when most of the Local Government Act 1919 and all Ordinances were expressly repealed by the Local Government (Consequential Provisions) Act 1993. I would not, if it were material, accept this submission. The repeal of Pt X11A of the Local Government Act 1919, also had the consequence of depriving all delegated legislation authorised by the repealed provisions of any force, unless preserved. That is why the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 contained a range of savings and transitional provisions in Schedule 3, including a clause to retain in force former planning instruments (whether a prescribed scheme or an interim development order) and various forms of directions and proclamations including, by cl.11, an ordinance made under s.342U(2) of the Local Government Act 1919. In my opinion Ordinance 107 ceased to have effect as and from the appointed day under the new legislative scheme, i.e. 1 September 1980, save insofar as cl.13 preserved Part X11A itself.

29 Both Talbot J and Meagher JA refer to the common law principle reflected in s.30(1)(c) of the Interpretation Act 1987 that:

30(1) The amendment or repeal of an Act or statutory rule does not:
…
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule …

30 Clause 13 does not contain any express reference to claims not being maintainable, or other language which, in terms, does “affect any right” within s.30(1)(c) of the Interpretation Act. There is no express indication to the contrary with respect to the application of the principle reflected in that section. That result is to be inferred from the positive provision in cl.13. Such an inference is sometimes appropriate. (See e.g. G. F. Heublein & Bro Inc v Continental Liqueurs Pty Ltd (1963) 109 CLR 153; Agua Marga Pty Ltd v Minister of State for the Interior (1973) 22 FLR 136 at 147-148.)

31 Talbot J said of cl 13:

This clause deals directly with claims under s342AC. It is a comprehensive provision which demonstrates an intention to deal exhaustively with the topic. Under cl.3 claims made before the appointed day may be enforced notwithstanding that proceedings to enforce the claim had not been instituted or completed. Unless the clause is construed to exclude the enforcement of a claim made after the appointed day it has no application.

32 Talbot J concluded, and Meagher JA agrees, that cl.13 of the 1979 Act was sufficient as an indication to the contrary, for purposes of the applicability of the general principle reflected in s.30(1)(c) of the Interpretation Act. This has the effect of depriving persons of a right to institute proceedings under s.342AC, save in the case where an actual claim for compensation had been made to the relevant authority prior to 1 September 1980.

33 This consequence arises in the case of all claims capable of being made, but not yet made, as at 1 September 1980. This goes beyond stale claims, such as that before the Court. The construction of the Act accepted by Talbot J and Meagher JA has the effect of taking away the right to make a claim from everyone who had such a right under cl.7, but had not actually made a claim. The effect is to deprive a person who has been affected by relevant conduct between 1 September 1976 and 31 August 1980, but who has not lodged a claim within that time period, from pursuing a right to compensation.

34 Like Meagher JA, I have been concerned to give full weight to the principle that the repeal of legislation does not affect accrued rights. Nevertheless, I have come to the conclusion that Talbot J was correct. Schedule 3 of the 1979 Act was intended to state exhaustively the circumstances in which the prior scheme would continue to operate. The breadth of some of the provisions (e.g. cl.2 with respect to former planning instruments) contrasts with the specificity of others (e.g. cl.11 with respect to a s.342U(2) Ordinance). The respective clauses state what was intended to be saved and it is appropriate to infer that the repealed law does not operate beyond the matters so specified.

Parties to the Proceedings

35 The Respondent submitted that the Appellant’s claim should be struck out because he was not the owner of the property in 1969 and thus had no “estate or interest in land” that could be the subject of injurious affection for the purposes of s.342AC(1)(a). I agree with Meagher JA’s observation that this matter could well be cured by an amendment to the application, perhaps by joining the estate of the then owner, the Appellant’s grandfather. The Appellant’s contention that the right to make a claim runs with the land so that he has succeeded to the right by reason of acquisition of the title, need not be determined. He, no doubt, had an equitable interest. The Respondent’s argument is insufficient to warrant the striking out of the application without, for example, steps being taken to join the necessary parties.

Other Issues

36 The Appellant sought to canvass a number of issues which cannot be raised on this appeal. He suggested that this Court could somehow set aside the orders made in the prior proceedings. He asserted that he could pursue, for the first time on appeal, a claim against the Council in negligence or under the Trade Practices Act. He sought to re-agitate a claim based on an estoppel, that had been determined against him in the prior proceedings. This is an appeal from a particular decision of the Land and Environmental Court. None of these issues can be raised in these proceedings.

37 The Respondent sought, by Notice of Contention, an order for costs before Talbot J. The submissions assert that the Respondent’s failure to seek costs was inadvertent. This is not an appropriate matter to be raised by Notice of Contention. There were many issues agitated before Talbot J. It is by no means obvious that the Respondent must have received its costs. The Court should not alter the orders made below.

38 I agree with the orders proposed by Meagher JA.

39 MEAGHER JA: Mr Dillon sought compensation for the injurious affectation allegedly suffered by him in respect of the zoning of his land, being Portions 155 and 153 City of Gosford, Parish of Patonga, County of Northumberland. This claim was dismissed by Talbot J, and this is an appeal from that dismissal.

40 The land has for many years been in the ownership of the Dillon family. Before 1970 it was owned by Mr Dillon’s grandfather. He died that year. It then came into the ownership of his father and uncle, Norman Charles Dillon and Harold George Dillon, who sold it to him in 1988.

41 In 1963, the use to which the land could be put was governed by Pt 11 of Ordinance 105 “Town and Country Planning – General Interim Development” which did not permit the carrying out of a private extractive industry on the subject land. Cl.6(1) in Part III provided:

Development which is not permitted by this Ordinance shall not be carried out except with the permission of the interim development authority.

In that year, 1963, on the application of a company called Gosford Excavations Pty Ltd, the Council, as such interim development authority, exercising its powers under Part XIIA of the Local Government Act 1919 and Ordinance 105, granted interim development approval for use of the land as a blue metal quarry. That approval was unlimited in time. It was subject to five conditions, but they are not relevant for present purposes.

42 On 24 May 1968 the provisions of Ordinance 105 ceased to operate in respect of the subject land, and were replaced by the provisions of the Shire of Gosford Planning Scheme Ordinance. Under that Ordinance the land was zoned 1(a) Non-Urban A. Under it “the appointed day” was 24 May 1968. Clause 27 of that Planning Scheme Ordinance was in the following form:

51. Nothing in this Ordinance shall prevent the erection of a building or the carrying out of work and the use of such building or work in accordance with the terms of the Town and Country Planning (General Interim Development) Ordinance or any permission or modification thereto granted under Division 7 or Part X11A of the Act and under that Ordinance which permission has not been revoked if the erection of the building or the carrying out of the work was commenced but not completed, before the appointed day or is substantially commenced within a period of 12 months after that day.

43 It is not now in dispute that neither on “the appointed day” nor on the day which is twelve months later, had there been any quarrying of blue metal on the land; there had been some quarrying of slate and stone, but no permission had been granted in respect of such quarrying; and there had been some work done with a view to ascertaining whether blue metal quarrying should be undertaken. But no work of the kind permitted had “commenced” on the appointed day, nor had it been “substantially commenced”; nor had it been “commenced” or “substantially commenced” twelve months later.

44 The appellant, Mr Dillon, has conceded the accuracy of the statements made in the previous paragraph. It was not always his contention, and it required a bout of litigation ending in the Court of Appeal’s decision in Dillon v Gosford City Council (BC9504472, unreported, 7 April 1995) finally to decide the matter.

45 On 18 February 1977 the Gosford Planning Scheme Ordinance was replaced by Interim Development Ordinance 100, under which the land was zoned 7(a) Rural Conservation. The carrying out of an extractive industry on the land was expressly prohibited, not even permitted with consent. However clause 54 provided:

Nothing in this Order shall prevent the carrying out of any development in accordance with any consent or permission granted by or under any former planning instrument which consent or permission which [sic] is in force at the appointed day, if the development has been commenced within a period of twelve months after that day.

The “appointed day” was 18 February 1977.

46 On 30 March 1979 Interim Development Ordinance 100 was, in its turn, replaced by Interim Development Ordinance 122, clause 44 of which was in the following terms:

Nothing in this Order shall prevent the carrying out of any development in accordance with any consent or permission granted by or under any former planning instrument which consent or permission is in force at the appointed day, if the development has been commenced within a period of 12 months after that day.

The “appointed day” for this Ordinance was 30 March 1979. Its zoning was changed to “7(a) Conservation”.

47 I shall now endeavour to summarize what litigation has taken place up to these proceedings. On 8 July 1993 the Gosford Council commenced proceedings No. 40107 of 1993 for a declaration that the appellant Mr Dillon was carrying on development on the land in breach of s76 of the Environmental Planning and Assessment Act 1979 and seeking consequential injunctive relief against him. These proceedings were heard by Bannon J, who, on 13 May 1994, decided all issues in favour of the Council, and made orders as sought by the Council. Mr Dillon’s (almost inevitable) appeal against those orders was heard by a Court of Appeal consisting of Handley, Sheller and Powell JJA. On 7 April that appeal was dismissed.

48 What does complicate the smooth running of the narrative, however, is that, although all three judges came to the same result, the reasoning of Powell JA differs considerably from that of Sheller JA, with whom Handley JA agreed. Whilst the majority judgment must be binding on us, I must confess to preferring Powell JA’s dissent. Powell JA’s argument may, I think, be summarized as follows: the 1963 permission was in terms perpetual, but the 1968 Gosford Planning Scheme Ordinance placed a time limit on it; once that time limit had expired without any permitted work being commenced, all activities on the land became prohibited, if not illegal, activities; therefore, there was no permission “in force” at any time after May 1969. What the majority decided – although for reasons I cannot begin to comprehend – is that a combination of the 1963 permission and Clause 51 of the 1968 Gosford Planning Scheme Ordinance had the effect of keeping the permission “in force” until 18 February 1977. Fortunately, I think that these matters are not decisive of the decision to be made in the current litigation, although to others things may seem different.

49 In the course of the litigation there emerged a letter which the Council wrote to the Dillon brothers. It is dated 15 April 1985. It says, omitting formal parts:

I refer to your letter dated 20th August 1984 regarding the question of the continued validity of the consent granted by Council on 14th November 1963.

The matter has been discussed with Council’s solicitor, and it is concluded on the basis of the information which you have provided, that the consent remains valid for the purpose of extracting “blue metal”.

Having regard to the fact that “blue metal” quarrying on the land had been expressly prohibited both by Ordinance 100 and by Ordinance 122, and to the fact that no “commencement” had even been made, this must rank as an extraordinarily silly letter. In the litigation to which I have referred it was prayed in aid as constituting an estoppel. This argument failed before Bannon J and again before the Court of Appeal. In the first place, the representation it is making is not clear: the validity which is asserted is only that which is based on “information” supplied by the Dillons, and we don’t know what that “information” was. In the second place, an estoppel by representation can hardly arise if the representee knows all the facts. Mr Dillon was conscious of all the facts, as he was principal actor in the drama. Moreover, as a Council employee and amateur lawyer he has demonstrated a mastery of the legalities of this case which is rather superior to that of the Council or its legal representatives. Estoppel having been rebutted, one would have thought that was the end of the document, but the letter, like King Charles’ head, has kept cropping up in the current litigation, but to what purpose I do not know. Such are the penalties of conducting serious litigation without pleadings.

50 Mr Dillon, the appellant, having lost the proceedings I have referred to, then embarked on a campaign to obtain compensation from the Council, for injurious affectation to his land. There is no doubt that there was once an injurious affectation. Before the introduction of the Gosford Planning Scheme Ordinance in 1968, Mr Dillon owned land to which a perpetual right to quarry was attached; the 1968 Ordinance altered that right by imposing a time limit on the right to quarry. An unqualified right then became a qualified right. However, his right to compensation was rejected by Talbot J, and he now appeals to us.

51 His right to claim compensation was based on many of the sub-paragraphs or paragraphs of s.342AC of the Local Government Act 1919. Subsection (5)(b) of that section provides that procedural matters arising out of the making of a claim are “as prescribed by Ordinance under this Act”. That is the genesis of Ordinance 207. The rights to compensation which arose under s.342AC (1) have since been the subject of a statutory revolution which took place on 1 September 1980, but whether that revolution extinguished them or merely modified them is another matter. On that day Part X11A of the Local Government Act (which contained s.342AC) was repealed; an Act called the “Miscellaneous Acts (Planning) Repeal and Amendment Act 1979” came into effect; as did the Land and Environment Court Act 1979 and the Environmental Planning and Assessment Act 1979. However, Ordinance 107 limped on (although one would have thought its existence was co-extensive with that of Part XIIA of the Local Government Act 1919). It expired in 1993.

52 Simultaneously there also came into effect another Act called the Environmental Planning Assessment (Savings and Transitional Provisions) Act 1979. Clause 13 of Schedule 3 to that Act provides:

13. Where a claim for compensation under section 342 AC of the Local Government Act 1919 was made before the appointed day, but proceedings to enforce the claim have not been instituted or completed as at that day, that claim may, subject to clause 12, be enforced as if this Act and the Environmental Planning Assessment Act 1979 had not been enacted.

53 Clause 7(2) of Ordinance 107 places a time limit on the making of claims for compensation under s.342AC. They are as follows: (a) Four years from 24 May 1968 (being the date when the 1968 Gosford Planning Scheme Ordinance commenced), (b) Two years from the date of refusal to pay the claim; or (c) 31 December 1971, “whichever is the latest date” – not, as one would expect, the earliest date. The appellant Dillon made a claim for compensation to the Council on 16 March 1999. As the Council did not reply to that claim within two months, it was deemed to be refused on 16 May 1999. (An express refusal followed later on 6 August 1999). It will thus be observed that two years from the date of the refusal to pay the claim did not occur until 16 May 2001. On 15 May 2001 proceedings were commenced to enforce the claims. The Council filed a motion on 8 June 2001 to strike out Mr Dillon’s claim. The matter came before Talbot J on 31 July 2001, who heard it for several days commencing 31 July 2001. He delivered judgment on 6 August 2001, upholding the Council’s motion and consequently putting an end to Mr Dillon’s claim for compensation.

54 His Honour held that there had been an injurious affectation; and this, with respect, must be right. Upon the reasoning of Powell JA, it occurred on the enactment of Gosford Planning Scheme Ordinance in 1968; on the reasoning of the majority judges, it occurred on the enactment of Interim Development Order 100. For present purposes, it does not matter which view is correct.

55 His Honour then held the claim must fail because it had not been instituted within any of the time limits set out in Clause 7(2) of Ordinance 107. This, with respect, cannot be right. No claim was made until March 1999, when a claim was made, and there was a deemed refusal of that claim in May 1999 and an actual refusal in August 1999. It is thus, it appears, within Clause 7(2)(b).

56 His Honour also held, presumably as an alternative to the previous holding, that the right to claim compensation had been extinguished by the repeal of s.342 AC. His Honour held that this was made clear, despite all rules of construction and all provisions of statutes dealing with the sanctity of vested rights, by the provisions of clause 13 of Schedule 3 of the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979, which I have set out above. Of this clause, drafted with even more than the usual opacity of the New South Wales parliamentary draftsman, Talbot J said:

This clause deals directly with claims under s 342AC. It is a comprehensive provision which demonstrates an intention to deal exhaustively with the topic. Under cl 13 claims made before the appointed day may be enforced, notwithstanding that proceedings to enforce the claim had not been instituted or completed. Unless the clause is construed to exclude the enforcement of a claim made after the appointed day it has no application.

After entertaining some doubts on the matter, I respectfully agree with his Honour.

57 There are three remaining aspects of the case which are deserving of mention: Mr Dillon’s submissions categorized every right, every liberty, every liability as “contingent”, to the point where reasonable analysis of the case became almost impossible. The Court asked him, at one stage, whether (in the circumstances) the effect of the 1968 GSPO was not to extinguish his right to quarry the land after twelve months, his reply was “Yes, but only contingently”. To the further query “contingent on what?” His reply was “contingent on the Council notifying” him. This is, of course, absurd. If you have a licence limited for a certain length of time, that licence expires the moment the time elapses, notification or no notification.

58 The second matter, which is locked into the first, is that the Council must, as it were, ride the bounds of the County to keep itself informed on everything that is happening on each parcel of land in the County. Why? Because, it is alleged, it has the supervision of the local zoning plan as its responsibility, in the public interest. No doubt it must apply the plan, but that, in my view, means no more than that it must apply the provisions of the plan in every matter which happens to be referred to it.

59 The third is that, strictly, Mr Dillon had no right to make a claim because he was not the owner of the land at the time the injurious affectation occurred, since he only acquired ownership in 1988. As Hodgson JA pointed out, this objection should be put to one side for present purposes, as it could readily be cured by an amendment.

60 In my view the appeal should be dismissed with costs.

61 HODGSON JA: I agree with the orders proposed by Meagher JA.

62 The reasons of Spigelman CJ and Meagher JA express differing views as to the interpretation of the judgment of Sheller JA in the judgment of this Court in Dillon v. Gosford Shire Council, unreported, 7 April 1995. I do not think it is necessary for me to express any view on this matter.

63 Subject to that, I agree with the reasons of Spigelman CJ and Meagher JA.

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