Dillon v Gosford City Council

[2001] NSWLEC 176

Land and Environment Court

of New South Wales

CITATION:	Dillon v Gosford City Council [2001] NSWLEC 176 revised - 21/08/2001
PARTIES:	APPLICANT Kevin Walter Dillon RESPONDENT Gosford City Council
FILE NUMBER(S):	30039 of 2001
CORAM:	Talbot J
KEY ISSUES:	Compensation :- claim for injurious affection under s 342AC of the Local Government Act 1919 Practice and Procedure :- application to strike out claim - matters to be considered
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 76 Interpretation Act 1897 s 8 Interpretation Act 1987 s 30(1)(c) Limitation Act 1969 s 14(1)(d), s 51, s 73(2) Local Government Act 1919 s 342AC, s 342N, s 342U(4), s 342Y Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 cl 13 Ordinance No. 105 - Town and Country Planning (General Interim Development) Ordinance No. 107 - Town and Country Planning Schemes: General Shire of Gosford Planning Scheme Ordinance Interim Development Order 100 Interim Development Order 122 - Gosford
CASES CITED:	Dillon v Gosford City Council [1995] (Handley JA; Sheller; Powell JA, CA 7 April 1995, unreported); General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Ors (1964) 112 CLR 125; Jones v Gosford Shire Council (1975) 33 LGRA 368; The Commonwealth of Australia v Mewett; Rock; and Brandon (1997) 191 CLR 471; Webster and Anor v Lampard (1993) 177 CLR 598
DATES OF HEARING:	30/07/01
DATE OF JUDGMENT:	08/06/2001
LEGAL REPRESENTATIVES:	APPLICANT In Person SOLICITORS N/A RESPONDENT Mr W R Davison SC SOLICITORS P J Donnellan & Co

JUDGMENT:

IN THE LAND AND Matter No. 30039 of 2001
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 6 August 2001

Kevin Walter Dillon
Applicant

v
Gosford City Council

Respondent

REASONS FOR JUDGMENT


1. The applicant, Kevin Walter Dillon, is the owner of an area of land known as Lot 155 DP 755251 near Woy Woy, Hawkesbury River, in the City of Gosford, Parish of Patonga, County of Northumberland (Portion 155) (“the land”). He became the owner of the land on 11 March 1988. Mr Dillon appears unrepresented.

2. In November 1963 the respondent council granted approval for the use of the land for the purpose of a blue metal quarry, subject to five conditions, pursuant to Ordinance No. 105 – Town and Country Planning (General Interim Development) (“Ordinance 105”) - made under the Local Government Act 1919 (“the LG Act”).

3. Ordinance 105 ceased to have effect when the Shire of Gosford Planning Scheme Ordinance (“the GPSO”) commenced on 24 May 1968.

4. The GPSO was suspended when Interim Development Order 100 (“IDO 100”) was gazetted on 18 February 1977. Interim Development Order 122 – Gosford (“IDO 122”) was gazetted on 30 March 1979.

5. Clause 54 of IDO 100 and cl 44 of IDO 122 respectively provided that nothing in the IDO prevented the carrying out of development in accordance with any consent, which was in force at the appointed day, if the development had been commenced within a 12 month period after that day.

6. In Dillon v Gosford City Council [1995] (Handley JA; Sheller; Powell JA, CA 7 April 1995, unreported) the Court of Appeal dismissed an appeal from the decision of Bannon J in matter No 40107/93 and confirmed that although preliminary work carried out on the land was authorised by the approval given, pursuant to Ordinance 105, it did not constitute a commencement of work for the purpose of a quarry. Clause 51 of the GPSO provided that nothing in the ordinance prevented the carrying out of work in accordance with the 1963 approval if the carrying out of work was commenced, but not completed, before 24 May 1968 or was substantially commenced within the 12 month period after that date. Sheller JA, with whom Handley JA agreed, explained the effect of cl 51 at p 10 as follows:-

In my opinion, cl 51 of the Planning Scheme Ordinance had the effect of maintaining the interim development approval “in force”. A continued carrying out of the work, without Council consent under that Ordinance, would be prohibited but for cl 51 and the existence of the 1963 approval, which had not been revoked. Together they allowed the work to be carried on if the conditions of commencement were met. Ordinance 105 cl 6 (1) provided that development was not to be carried out “except with the permission of the interim development authority”. Such a permission, when given, was “in force”, that is to say it operated to except. It remained in force under cl 51, if the conditions were satisfied, because it continued to operate to except under that clause. In my opinion the interim development approval was capable, by virtue of cl 51 of the Planning Scheme Ordinance, of being in force within the meaning of cl 54 of IDO 100 at 18 February 1977.


7. The background of the proceedings, recounted by Bannon J, was reiterated in the Court of Appeal in the judgment of Sheller JA commencing at p 5.

8. Bannon J found that there was never any “substantial commencement” of quarrying on the land.

9. The majority in the Court of Appeal were of the opinion that from 18 February 1978, 12 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. Sheller JA said that cl 54 of IDO 100 was not satisfied and accordingly the continuance of quarrying work was prohibited unless, in the terms of s 342U(4) of the LG Act, the land was being used for the purpose of a blue metal quarry immediately before the appointed day. His Honour was quite satisfied it was not.

10. Although Powell JA agreed that the Dillon appeal should be dismissed he gave different reasons as follows:-


…while the effect of the provision of cl 51 GPSO was to “extend” any consent or permission existing on “the appointed day”, in the sense of allowing a period of 12 months after “the appointed day” for the substantial commencement of any relevant “work” (see, for example, Almora Pty. Limited v. North Sydney Municipal Council ) the interim development approval given in November 1963 ceased to have any relevant operation – that is, ceased to provide protection against the prohibitions contained in cll 10, 11, 12 GPSO – after 24th May 1969 for two reasons, they being: -

1. there being no use of the land for purposes of a quarry at “the appointed day”, the “existing use” provisions (cl 14 GPSO) would not, of themselves, permit use of Lot 155 for the purposes of a quarry; and

2. unless the work of developing a quarry had, by 24th May 1969, been substantially commenced, the “incomplete development” provisions (cl 51 GPSO) would not have permitted the subsequent opening up of a quarry, and still less the subsequent use of the land for the purposes of a quarry.

If, therefore, the interim development approval given in November 1963 ceased to have any relevant operation after 24th May 1969, there was no consent, or permission, upon which provisions of cl 54 of Interim Development Order 100, and still less by the provisions of cl 44 of Interim Development Order 122 – Gosford could operate.


11. Following the dismissal of the appeal from the decision of Bannon J, orders made by him on 16 September 1994 required that excavation of the land cease from 16 March 1996.

12. On 16 March 1999 Mr Dillon lodged a form of claim for compensation under Div 9 of Pt XIIA of the LG Act with the council. The claim for compensation was to the effect of Form 2 under cl 7 of Ordinance No. 107 – Town and Country Planning Schemes: General (“Ordinance 107"). The grounds on which the claim is made are stated as s 342AC(1)(a)(i) and (iii), s 342AC(1)(b)(i) and (iii), s 342AC(1)(c) and s 342AC(4)(g).

13. The relevant parts of s 342AC are provided as follows:-

(1) Subject to the provisions of this Part, any person –
(a) who has an estate or interest in land to which a prescribed scheme applies and such estate or interest is injuriously affected-
(i) by the coming into operation of any provision contained in the prescribed scheme; or
(ii) …
(iii) by any restrictions imposed by or under the prescribed scheme;
(b) who is engaged in any profession, trade or calling upon land to which a prescribed scheme applies and whose profession, trade or calling is injuriously affected-
(i) by the coming into operation of any provision contained in the prescribed scheme; or
(ii) …
(iii) by any restrictions imposed by or under the prescribed scheme;
(c) who suffers damage by reason of any action taken by or on behalf or at the order of the responsible authority for the enforcement or carrying into effect of the prescribed scheme;
(4) In assessing compensation under this Division in respect of the injurious affection of an estate or interest in land the following provisions shall have effect: -…
(g) An amount may be included to reimburse any person claiming compensation under this Division for the costs and expenses reasonably incurred by him in preparing and enforcing his claim for compensation.

14. When Pt XIIA of the LG Act was repealed by the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) on 1 September 1980, cl 13 of Sch 3 to the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 provided:-

Where a claim for compensation under section 342AC of the Local Government Act 1919, was made before the appointed day, but proceedings to enforce that 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 and Assessment Act, 1979, had not been enacted.

15. Mr Dillon contends that the council, as the responsible authority specified in the GPSO, was charged with the function of carrying into effect and enforcing the provisions of the ordinance pursuant to s 342N of the LG Act. This, he says, included a discretionary power to take action to enforce any restrictions imposed by or under the GPSO within the meaning of s 342AC(1)(a)(iii) and (b)(iii). It is alleged that the council neglected to pursue the statutory function entrusted to it, under the LG Act and the GPSO, by failing to exercise its discretion to enforce the provisions of the GPSO until it wrote to the applicant’s solicitors on 17 March 1993, requiring that Mr Dillon cease quarry operations immediately and thereafter rehabilitate all disturbed areas within 90 days. According to Mr Dillon, it was only then that a right to compensation accrued under either subparagraph (iii). In order to be fair to Mr Dillon his written submission on this issue is set out in full as follows:-

Pursuant to s342N(1), LG Act, 1919 and Clause 5, GPSO, the responsible authority had discretionary functions to carry into effect or enforce the GPSO provisions. As Town Planning legislation is enacted for the benefit of the general public, Council had a duty to exercise its discretion under the GPSO in accordance with the principles of ‘natural justice’ as the circumstances required. To undertake that function and carry Clause 51 into effect it was necessary for the responsible authority to undertake an investigation of what and when any buildings or work in accordance with the permission had been carried out on the land. This would enable assessment of whether or not the commencement or substantial commencement restrictions were in fact satisfied. If they were not satisfied then Council had a further discretion to exercise as to whether it would enforce the provision by imposing the avoidance restriction.

16. Ordinance 107, cl 7 relevantly provides:-


7.(1) A claim for compensation under Division 9 of Part XIIA of the Act shall be in or to the effect of Form 2 hereunder.

(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.

(3) The responsible authority shall within a period of two months after the receipt of the claim by notice in writing inform the claimant whether it agrees, or refuses, to pay the claim.

(4) If the responsible authority neglects or fails so to inform a claimant within that period, the responsible authority shall be deemed to have refused to pay the claim.


17. The form of claim for compensation was lodged on 16 March 1999. According to Mr Dillon the council was deemed to have refused to pay the claim on 16 May 1999. A formal letter of rejection was issued by the council on 26 August 1999.

18. These proceedings were commenced by the filing of an Application Class 3 on 15 May 2001.

19. Mr Dillon argues that s 14(1)(d) of the Limitation Act 1969 (“the Limitation Act”), if it applies, does not extinguish the right to claim compensation after the expiration of six years but merely prevents enforcement of the remedy ( The Commonwealth of Australia v Mewett; Rock; and Brandon (1997) 191 CLR 471 at 509). If he is not right that the date of accrual of the right to claim compensation was 17 March 1993 and it was in fact the date of commencement of the GPSO, namely 24 May 1969, Mr Dillon says his claim was nevertheless lodged within the ultimate bar of 30 years, stipulated by s 51 of the Limitation Act, and it is open to him to make an application to the Court for an extension of time under s 73(2) of that Act.

The council’s application to strike out the claim

20. The respondent council, by notice of motion dated 8 June 2001, moves the Court for an order that the applicant’s claim be struck out on the grounds that:-


(1) It is statute barred;

(2) The repeal of the relevant legislation upon which the claim is based;

(3) The applicant is not a person entitled to make a claim; and
(4) The claim is excluded by virtue of the exception contained in s 342AC(2).


21. Mr Davison SC, who appears for the council, submits that the present applicant was never a person who had “an estate or interest in land” at any relevant time for the purposes of s 342AC(1)(a). The council relies upon the finding in the earlier class 4 proceedings to assert that there was no person relevantly engaged in “any profession, trade or calling upon land” at any relevant time for the purposes of s 342AC(1)(b).

22. The council denies that Mr Dillon suffered damage contemplated by s 342AC(1)(c), by reason of the action taken in the class 4 proceedings, as these proceedings were not for the enforcement or carrying into effect of the prescribed scheme. Conversely, Mr Davison asserts that the council was seeking to restrain a breach of the law, namely, as the original consent had lapsed the continued use of the land for the purpose of a quarry was prohibited under IDO 122. In those circumstances, according to the council, the only relevance of the GPSO was in relation to the defence that the respondent enjoyed existing use rights.

23. In addition to its argument that the present applicant never had the relevant estate or interest in the land and has not been engaged in any trade, profession or calling upon the land for the purposes of s 342AC(1)(a) and (b), the council relies upon the exclusion of any claim in respect of the “injurious affection of an estate or interest in land by reason of any provision of a prescribed scheme which specifies, or enables to be specified, the purpose for which the land may be used or which prohibits, restricts or regulates the use of land” , contained in s 342AC(2)(h).

24. Furthermore, s 342AC(2)(f) excludes the payment of compensation in respect of anything done in contravention of a prescribed scheme. The council’s latter submission would appear to require that the effect of subparagraph (f) extend to any breach of the law. Mr Dillon responds to this last submission by saying that the class 4 proceedings were not brought as a claim in respect of anything done in contravention of the prescribed scheme. The basis of the council’s claim was a contravention of s 76 of the EP&A Act, as it then was, by carrying out prohibited development.

Whether the applicant has a reasonable cause of action

25. With great respect to the carefully reasoned and compendiously explained submissions presented by Mr Dillon, to the contrary, the Court has concluded that the claim must fail for the following reasons:-

(1) No provision contained in the prescribed scheme injuriously affected an estate or interest in the land. The majority in the Court of Appeal found that the 1963 interim development consent survived after the GPSO was made. It was capable, by virtue of cl 51 of the GPSO, of being in force within the meaning of cl 54 of IDO 100 at 18 February 1977. In the meantime, and for the next 12 months after the IDO operated, no work for the purpose of a quarry had been or was commenced. It was only cl 54 of IDO 100 that ultimately had the potential to cause injurious affection to any estate or interest in the land. 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 (Sheller JA in Dillon at p 10).
(2) The council, as the responsible authority, has never taken any action for the enforcement or carrying into effect of the prescribed scheme. By letter dated 15 April 1985 the council wrote to the then owners of the land and confirmed “the continued validity of the consent granted by Council on 14th November 1963” for the purpose of extracting “blue metal” . On 2 February 1993 the council’s solicitors advised the present applicant that according to their instructions he did not have consent for the quarry operation which was “the extraction of sandstone material and clay/shale” . Subsequently, on 17 March 1993 the council solicitors advised the applicant’s solicitors that council asserted the use for which “Interim Development Approval” was obtained was never commenced or alternatively, if commenced was abandoned. Furthermore, they advised that at the time of commencement of the use, for the purpose of the extraction of sandstone material and/or clay/shale, the required consent under “the Gosford Interim Development Order” was not obtained.
The Court agrees with Mr Davison that the class 4 proceedings were not taken for the enforcement or carrying into effect of the prescribed scheme.
(3) Mr Dillon, the present applicant, did not have an estate or interest in the land and was not engaged in any professional trade or calling upon the land when the prescribed scheme came into operation or at any time up to the date that IDO 100 came into operation.
(4) The council did not have a statutory duty to enforce the provisions of the GPSO by notifying the person entitled to act on the interim development consent that the provisions of cl 51 of the GPSO and cl 54 of IDO 100 required them to commence operations within 12 months of the date of commencement of the instrument. Moreover, even if the council had relied on the provisions of the scheme to require the cessation of the quarry operation, the action taken by council in 1993 was not of itself a restriction imposed by or under the prescribed scheme. Any relevant restriction, if any, was imposed by the scheme when it came into operation on 24 May 1968 ( Jones v Gosford Shire Council (1975) 33 LGRA 368). However, as the Court of Appeal found in Dillon , it was the restriction imposed by IDO 100 that caused the injurious affect on the 1963 consent. Thereafter, the use was prohibited by the IDO.
(5) Clause 7(2) of Ordinance 107 places a time limit for making claims for compensation under s 342AC. Even if Mr Dillon is correct when he argues that cl 51 of the GPSO had the effect of “converting the 1963 permission from one unencumbered by any voiding time limit restriction into a permission which continued in force only if one of the savings restrictions in clause 51 was satisfied” , any proceedings in respect of a claim for compensation for injurious affection to “the estate or interest in the land created by the permission” or to “the professional trade or calling engaged in upon the land associated with the permission” needed to be instituted within the time limits imposed by cl 7(2) of Ordinance 107. These time limits were as follows:-

(a) Four years from 24 May 1968, being the date a claim first arose when the GPSO commenced;

(b) Two years from the date of refusal to pay the claim; and

(c) 31 December 1971,

whichever is the latest date.

Time limit (b) never arose. No claim was made within time limit (a) or (c). In those circumstances, s 342Y(4)(b) of the LG 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.

Any contingent rights of the type identified by Mr Dillon did not survive and accordingly cannot now be relied upon as a catalyst for the present claim based upon the actions of council, subsequent to its letter dated 17 March 1993.

(6) The repeal of the LG Act on 1 September 1980 meant that any right or privilege acquired or accrued under s 342AC was lost. Section 30(1)(c) of the Interpretation Act 1987 (“the Interpretation Act”) provides that the repeal of an Act does not affect any such right or privilege. However, s 5(2) of the LG Act states that the Interpretation Act applies, except in so far as the contrary intention appears in the Act concerned. Section 8 of the Interpretation Act 1897 was to the same effect. Clause 13 of Sch 3 of the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 (set out above) provides the contrary intention. 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 (Refer to Statutory Interpretation in Australia Pearce DC and RS Geddes (1996) ed 4 at par 6.13 and the cases there cited).
(7) It is not part of the council’s statutory function to exercise a discretion in respect of carrying into effect or enforcing the provisions of the GPSO by the imposition of restrictions. The restriction contemplated by s 342AC(1)(a)(iii) and b(iii) are those that are imposed directly by the scheme itself or pursuant to a power vested by a provision of the scheme. The exercise of the discretion to enforce the provision of the scheme does not itself give rise to a limitation imposed by or under the prescribed scheme. The limitation exists, notwithstanding the council’s failure to investigate and to act on the result of any investigation.


26. The High Court has recognised that even argument of an extensive kind may be entertained to demonstrate that the case of an applicant is so clearly untenable that it cannot possibly succeed ( General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Ors (1964) 112 CLR 125). The power of summary dismissal is not therefore limited to those cases where it is so plain and obvious that the Court can say at once the claim cannot succeed. Nevertheless, the power to order summary judgment should be exercised with extreme caution ( Webster and Anor v Lampard (1993) 177 CLR 598).

27. The parties do not entertain any real dispute about the relevant facts upon which the respective arguments are based ( Webster ).

28. The Court’s view is that this is an appropriate case where the Court can exercise its jurisdiction to dismiss the claim. There has been, after all, full and detailed argument with both sides afforded an unrestricted opportunity to present submissions based on an agreed statement of facts.

29. It is plain and obvious to the Court that the claim for compensation has not survived beyond the date of commencement of IDO 100. The present claimant had no estate or interest in the land at that time.

30. No action of the council since that date has the effect of creating a basis for a claim or resurrecting any original claim. None of the factual matters or statutory provisions relied upon by the applicant support the application for compensation pursuant to the former s 342AC.

31. Having regard to the reasons given above it is not necessary to consider whether any claim is statute barred.

32. The Court is satisfied that the claim for compensation cannot succeed.

Orders

33. After having regard to the whole of the circumstances, the agreed facts, and the oral and written submissions made by both parties the Court makes the following orders:-

(1) The application is dismissed.
(2) Exhibit 1 and exhibit 3 may be returned.