Dolton v Eurobodalla Shire Council

[2020] NSWLEC 141

Land and Environment Court

New South Wales

Medium Neutral Citation:

Dolton v Eurobodalla Shire Council [2020] NSWLEC 141

Hearing dates:

2 October 2020

Date of orders:

2 October 2020

Decision date:

02 October 2020

Jurisdiction:

Class 3

Before:

Pepper J

Decision:

See orders at [66].

Catchwords:

APPEAL: whether Court has jurisdiction to hear the applicant’s claim – applicable legal principles in the exercise of the power to summarily dismiss proceedings – whether claim discloses reasonable cause of action – Court does not have jurisdiction – no reasonable cause of action disclosed in application – proceedings summarily dismissed – no costs order made because applicant encouraged to file proceedings in the Court.

Legislation Cited:

Environment Planning and Assessment Act 1979 ss 8.7 and 8.10

Environment Planning and Assessment Regulation 2000 cl 50

Eurobodalla Local Environmental Plan 2012 cll 4.2, 4.2A, 4.2B and 4.2C

Land and Environment Court Act 1979 ss 5, 16, 17, 18, 19, 20, 31, 38 and 56A

Land and Environment Court Rules 2007 r 3.7

Uniform Civil Procedure Rules 2005 rr 13.4 and 59.10

Cases Cited:

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552

Batistados v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256; (2006) 80 ALJR 1100

Commissioner of Police (NSW) v Rabbits Eat Lettuce Pty Ltd [2019] NSWCA 182; (2019) 371 ALR 719

Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62

General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125

Goode v Gwydir Shire Council [2019] NSWLEC 70

NA & J Investments Pty Ltd v Minister Administering Water Management Act 2000 [2011] NSWLEC 51; (2011) 181 LGERA 166

National Parks & Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573

Shaw v New South Wales [2012] NSWCA 102

Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118

Ugur v Attorney General for New South Wales [2019] NSWCA 86

Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598

Category:

Principal judgment

Parties:

Noel Dolton (Applicant)
Eurobodalla Shire Council (Respondent)

Representation:

Counsel:
N Dolton (self-represented) (Applicant)
A Manyhart (solicitor) (Respondent)

Solicitors:
Mr N Dolton (self-represented) (Applicant)
Bradley Allen Love Lawyers (Respondent)

File Number(s):

2020/160840

Judgment

The Council Seeks Dismissal of the Proceedings Filed Against It by Mr Dolton

1. On 27 May 2020 Mr Noel Dolton filed a Class 1 application challenging an earlier decision of Eurobodalla Shire Council (“Council”) that his property at Lot 2 Section 2, DP977256, also known as 22 North Head Drive, Moruya NSW 2537 (“land”), did not have a “dwelling entitlement” pursuant to cl 4.2A of the Eurobodalla Local Environmental Plan 2012 (“ELEP”).

2. The application sought the following orders:

1.   To, “set aside” ESC determination that my property does not have a “dwelling entitlement” because:

2. Clause 4.2A of LEP 2012 is interpreted to give my land a “dwelling entitlement” as I have duly highlighted in red underline in the attached copy of my letter to ESC. In other word [sic] ESC determination is based on erroneous, (superfluous) red tape.

3.   Given ESC has not responded to my letter as at, the 5^th May 2020, it is deemed ESC does not agree my land has a “dwelling entitlement”.

3. The application identified the decision being appealed against in the following terms, namely, “my letter to Eurobodalla Shire Council dated 15 March 2020. This sets out ESC in denying my land a dwelling entitlement, is incorrect; legally wrong”. The application also states that “given ESC has not responded to my letter as at 5 May 2020 it is deemed ESC does not agree that my land has dwelling entitlement”. The reference to “ESC” is a reference to the Council. The 15 March 2020 letter was attached to the application. The 5 May 2020 letter, however, was not, and was not before the Court.

4. The proceedings were subsequently transferred to Class 3 of the Court’s jurisdiction by the Registry (see s 31 of the Land and Environment Court Act 1979 (“LEC”) and Goode v Gwydir Shire Council [2019] NSWLEC 70 at [31]).

5. The Council seeks, by notice of motion filed on 14 August 2020, the following orders in respect of Mr Dolton’s application:

1. The proceedings against the respondent are dismissed under rule 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW).

2. In the alternative, the proceedings against the respondent are dismissed under rule 13.4(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW).

3.   The applicant is to pay the respondent’s costs of the motion to be agreed or assessed.

6. Rule 13.4(1) of the Uniform Civil Procedure Rules 2005 (“UCPR”) states that:

13.4   Frivolous and vexatious proceedings

(1)   If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a)   the proceedings are frivolous or vexatious, or

(b)   no reasonable cause of action is disclosed, or

(c)   the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

7. In my view, the Council’s application must be upheld because there being in fact no determination or decision by the Council in respect of any entitlement to a dwelling on Mr Dolton’s land pursuant to cl 4.2A of the ELEP or any other relevant statutory enactment – only advice – the Court does not have jurisdiction to hear the claim. Put another way, the application does not, as framed, give rise to a reasonable cause of action.

Legislative Framework Under the ELEP

8. Because of the unrepresented status of Mr Dolton and the nature of this application, I have set out the legislative framework relied upon by him in full.

9. Clause 4.2 of the ELEP is in the following terms:

4.2   Rural subdivision

(1)   The objective of this clause is to provide flexibility in the application of standards for subdivision in rural zones to allow land owners a greater chance to achieve the objectives for development in the relevant zone.

(2)   This clause applies to the following rural zones—

(a)   Zone RU1 Primary Production,

(b)   Zone RU2 Rural Landscape,

(baa)   Zone RU3 Forestry,

(c)   Zone RU4 Primary Production Small Lots,

(d)   Zone RU6 Transition.

Note—

When this Plan was made it did not include Zone RU2 Rural Landscape or Zone RU6 Transition.

(3)   Land in a zone to which this clause applies may, with development consent, be subdivided for the purpose of primary production to create a lot of a size that is less than the minimum size shown on the Lot Size Map in relation to that land.

(4)   However, such a lot cannot be created if an existing dwelling would, as the result of the subdivision, be situated on the lot.

(5)   A dwelling cannot be erected on such a lot…

10. Clause 4.2A of the ELEP states that:

4.2A   Erection of dwelling houses or dual occupancies on land in Zone RU1 Primary Production

(1)   The objectives of this clause are as follows—

(a)   to minimise unplanned rural residential development,

(b)   to enable the replacement of lawfully erected dwelling houses and dual occupancies in Zone RU1 Primary Production,

(c)   to ensure that rural residential development does not create unreasonable or uneconomic demands for the provision or extension of public infrastructure.

(2)   Development consent must not be granted for the erection of a dwelling house or dual occupancy on land in Zone RU1 Primary Production, and on which no dwelling house or dual occupancy is erected, unless the land—

(a)   is a lot that has an area of at least the minimum lot size shown on the Lot Size Map in relation to that land, or

(b)   is a lot created before this Plan commenced and on which the erection of a dwelling house or dual occupancy was permissible immediately before that commencement, or

(c)   is a lot resulting from a subdivision for which development consent (or equivalent) was granted before this Plan commenced and on which the erection of a dwelling house or dual occupancy would have been permissible if the plan of subdivision had been registered before that commencement, or

(d)   is an existing holding, or

(e)   is a 1987 holding, or

(f)   (Repealed)

(g)   would have been a lot or a holding referred to in paragraphs (b)–(e) had it not been affected by—

(i)   a minor realignment of its boundaries that did not create an additional lot, or

(ii)   a subdivision creating or widening a public road or public reserve or for another public purpose.

…

(3)   (Repealed)

(4)   Development consent may be granted for the erection of a dwelling house or dual occupancy on land to which this clause applies if there is a lawfully erected dwelling house or dual occupancy on the land and the dwelling house or dual occupancy to be erected is intended only to replace the existing dwelling house or dual occupancy.

(5)   In this clause—

1987 holding means land that—

(a)   was a holding on 11 December 1987, and

(b)   is a holding at the time the application for development consent referred to in subclause (2) is lodged,

whether or not there has been a change in the ownership of the holding since 11 December 1987, and includes any other land adjoining that land acquired by the owner or owners since 11 December 1987.

Note—

The owner in whose ownership all the land is at the time the application is lodged need not be the same person as the owner in whose ownership all the land was on the stated date.

existing holding means land that—

(a)   was a holding on 9 August 1963, and

(b)   is a holding at the time the application for development consent referred to in subclause (2) is lodged,

whether or not there has been a change in the ownership of the holding since 9 August 1963, and includes any other land adjoining that land acquired by the owner or owners since 9 August 1963.

Note—

The owner in whose ownership all the land is at the time the application is lodged need not be the same person as the owner in whose ownership all the land was on the stated date.

holding means all adjoining land, even if separated by a road or railway, held by the same person or persons.

11. Clauses 4.2B and 4.2C, also relied upon by Mr Dolton, further provide that:

4.2B   Dual occupancies on land in rural zones

(1)   The objectives of this clause are as follows—

(a)   to provide alternative accommodation for rural families and itinerant workers on a property,

(b)   to ensure development is of a scale and nature that is compatible with the rural landscape and environmental capabilities of the land.

(2)   This clause applies to land in a rural zone.

(3)   Development consent must not be granted to development for the purpose of a dual occupancy on land to which this clause applies unless the consent authority is satisfied that—

(a)   both dwellings will use the same vehicular access from a public road, and

(b)   the land is suitable for the proposed development, and

(c)   the land is capable of accommodating effluent disposal areas for both dwellings.

4.2C   Boundary changes between lots in certain rural and environment protection zones

(1)   The objective of this clause is to permit the boundary between 2 or more lots to be altered in certain circumstances to give landowners a greater opportunity to achieve the objectives for development in a zone.

(2)   This clause applies to land in any of the following zones—

(a)   Zone RU1 Primary Production,

(b)   Zone RU3 Forestry,

(c)   Zone RU4 Primary Production Small Lots,

(d)   Zone E2 Environmental Conservation.

(3)   Despite clause 4.1(3), development consent may be granted to the subdivision of 2 or more adjoining lots, being land to which this clause applies, if the subdivision will not result in either of the following—

(a)   an increase in the number of lots,

(b)   an increase in the number of dwellings on, or dwellings that may be erected on, any of the lots.

(4)   Before determining a development application for the subdivision of land under this clause, the consent authority must consider the following—

(a)   the existing uses and approved uses of other land in the vicinity of the subdivision,

(b)   whether or not the subdivision is likely to have a significant impact on land uses that are likely to be preferred and the predominant land uses in the vicinity of the development,

(c)   whether or not the subdivision is likely to be incompatible with a use referred to in paragraph (a) or (b),

(d)   whether or not the subdivision is likely to be incompatible with a use of land in any adjoining zone,

(e)   any measures proposed by the applicant to avoid or minimise any incompatibility referred to in paragraph (c) or (d),

(f)   whether or not the subdivision is appropriate having regard to the natural and physical constraints affecting the land,

(g)   whether or not the subdivision is likely to have an adverse impact on the environmental values, heritage vistas or landscapes or agricultural viability of the land.

(5)   This clause does not apply—

(a)   in relation to the subdivision of individual lots in a strata plan or community title scheme, or

(b)   if the subdivision would create a lot that could itself be subdivided in accordance with clause 4.1.

Mr Dolton Lodges a DA in 1998

12. The factual background to the matter may be succinctly stated for the purpose of this motion. It was largely contained in the unchallenged affidavit evidence of Ms Alice Menyhart, the solicitor for the Council, affirmed 14 August 2020. It is also gleaned from the bundle of correspondence passing between the Council and Mr Dolton dating from 30 March 2016 to 15 March 2020, that the Council tendered to the Court on the motion. Although Mr Dolton effectively objected to the bundle of correspondence because the communications all pre-dated his letter of 15 March 2020 (they were, in his submission, a “red herring”), the correspondence was nevertheless relevant to the issues raised by the parties on the motion.

13. In June 1998 Mr Dolton lodged development application 178/98 (“DA”) with the Council seeking consent to erect a rural dwelling on his land.

14. On 15 September 1998 the Council determined the DA by way of refusal. However, no appeal or review from that refusal has been, or is being, sought by Mr Dolton. That is, that determination does not form the basis of the present application.

15. The Council has not received any other development application from Mr Dolton seeking consent for the erection of a dwelling on the land.

16. Instead, Mr Dolton has written to the Council on a number of occasions since 1998 claiming an entitlement to erect a dwelling on his land pursuant to, in particular, cl 4.2A of the ELEP. For example, Mr Dolton wrote to the Council as recently as 15 March 2020 contending that (omitting emphases):

Of course, the key standout phrase here is “(or equivalent) was granted before the plan commenced”.

With “(Or Equivalent)” Being highlighted by its enclosure in brackets, I interpret this; (has been legislated this way, by experienced skilled parliamentary officers) to urge; (prompt) Council Staff to take the logical “common sense” legal path to grant “building entitlement” status to land that was subdivided prior to Council’s First Land Use Control Regulation; IDO No.1 was promulgated.

In knowing my land was initially; (first) zoned and gazetted in Councils Interim Development Order (IDO) No.1 on 31 July 1963 having an area of 0.5 acre, 0.2 ha with all services available, (including town water and sewerage provided by Council) and was subdivided for residential building construction in the late 1800’s (some sixty (60) years before my land was, first legislated in IDO No.1 and denied a “building entitlement”; is most difficult to comprehend, because:

My nine (9) page Public Submission to Councillors- “The Council” at the Council meeting on 28 August 2017 reported/testified; my land complied 100% with the Aims and Objectives of LEP 2012 (as “set out” by Clauses 4.2(1) and 4.2A of the LEP.

Moreover;- With Mr Hitchenson’s letter advising; (at Point No.5) “as you are aware your land is located in a floodway. Council staff would also be unlikely to recommend to Council that a dwelling entitlement be facilitated on land in a floodway. Doing so would be inconsistent with Ministerial Direction 4.3 which states that a planning proposal must not contain provisions that apply to the flood planning area which, amongst other things, would permit development in a floodway”, - I dispute and challenge the truthfulness of this statement because:

It is false, (a fabricated lie), as I have irrefutably proved in a “20 Page Document”, first submitted to Council in July 2012 and more recently; personally handed to all Councillors – “The Council” at its Council meeting on 28 August 2018.

With Councillors – “The Council”, (being a legally constituted statutory entity), whose role is prescribed by Section 232 (2) of The Local Government Act 1993 to: “represent the interest of ratepayers”, it raises the obvious question:

Do Councillors “The Council”; after reading this letter, to avoid it being “classified information” and secretive; (known only to a select few of Senior Council Staff) agree with my interpretation of Clause 4.2A of the LEP; My land has a building entitlement?

An unequivocal Yes or No is sought.

17. The Council’s response to these and similar contentions has been consistent throughout the dispute with Mr Dolton. Thus, on 6 December 2017 the Council relevantly advised Mr Dolton that:

1.   As you are aware, the subject lot does not have a dwelling entitlement.

2. Clause 4.2A of ELEP 2012 recognises that certain land zoned RU1 has dwelling entitlement and ensures that entitlement continues. Its purpose is not to provide new dwelling entitlements where one does not already exist, except where land meets certain specified criteria, being a lot at least 40ha and accessed from a sealed road maintained by Council. Your land does not meet that criteria.

…

4. The Rural Lands Strategy adopted by Council in 2016 provides strategic justification for an amendment to clause 4.2A to facilitate new dwelling entitlements on land that exceeds the proposed minimum lot size for that land. Your land is significantly smaller than the proposed minimum lot size.

5.   As you are aware, your land is located in a floodway. Council staff would also be unlikely to recommend to Council that a dwelling entitlement be facilitated on land in a floodway. Doing so would be inconsistent with Ministerial Direction 4.3 which states that a planning proposal must not contain provisions that apply to the flood planning area which, amongst other things, would permit development in a floodway.

18. As the bundle of correspondence reveals, the Council’s position is not new. Similar advice was provided by it to Mr Dolton on, for example, 3 August 1998 and 25 October, 18 November and 6 December 2016.

Applicable Legal Principles in Applications for Summary Dismissal

19. The legal principles applicable in the exercise of the Court’s power to summarily dismiss proceedings may be briefly stated as follows:

1. the power to dismiss proceedings without a substantive hearing should only be exercised in “plain and obvious” cases, that is, where the applicant’s case is “so clearly untenable that it cannot possibly succeed” (General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125 at 129-130). There must be “a high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial in the ordinary way” (Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57]. This formulation was adopted in Batistados v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256; (2006) 80 ALJR 1100 at [46], Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [24] and Shaw v New South Wales [2012] NSWCA 102; (2012) 219 IR 87 at [30]);

2. the Court cannot dismiss an action “once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it” (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91 and Spencer at [54]-[55]);

1. allegation of fact contained in an application or pleading relevant to the causes of action should be assumed to be established. Great caution must be exercised in dismissing a case summarily “where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact” (Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at 603); and

2. the Court is not precluded from hearing argument, even if extensive, in determining whether or not the plaintiff’s case is untenable (General Steel at 130).

20. In NA & J Investments Pty Ltd v Minister Administering Water Management Act 2000 [2011] NSWLEC 51; (2011) 181 LGERA 166 Craig J relevantly said (at [14] – [18]):

14   The principles to be applied when determining the Minister’s application are not in dispute. The power to strike out a pleading on the basis that it discloses no reasonable cause of action is a power to be exercised sparingly and only where the absence of a reasonable cause of action is “plain and obvious” (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129).

15   The strictures attending an application summarily to dismiss proceedings have recently been reiterated by the High Court in Spencer v The Commonwealth (2010) 241 CLR 118. Although the court was there concerned with the provisions of s 31A of the Federal Court of Australia Act 1976 (Cth), authorising summary dismissal of proceedings where the court is satisfied that a party “has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding”, the caution necessary to be exercised before striking out a pleading was emphasised in the joint judgment of French CJ and Gummow J where their Honours said (at [24]):

24   The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process.

16 The principles applicable to the application of UCPR 13.4 and 14.28 were usefully summarised by Rein J in Hoxton Park Residents’ Action Group Inc v Liverpool City Council (2010) 178 LGERA 275 at [14]. I will not repeat what his Honour there said. Relevantly, those principles include the propositions that:

(i)   allegations of fact contained in the pleading are assumed to be established for the purpose of considering the strike out application, and

(ii)   notwithstanding the caution to which I have earlier referred, applicable to the exercise of the power, a court is not precluded from entertaining extensive argument when determining whether the pleading discloses a reasonable cause of action (General Steel Industries at 130).

17   It will be remembered that the basis upon which the respondents seek to strike out the negligent misrepresentation claim is that this Court lacks jurisdiction to entertain it. An application so founded involves considerations of a different kind.

18   When the jurisdiction of the Court to entertain a particular cause of action is challenged, the Court is required to satisfy itself that it has jurisdiction before proceeding further with the hearing of the proceedings (R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 at 215 per Gibbs J; National Parks & Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 585; 71 LGRA 286 at 297 per Kirby P. Moreover when that question is raised, it is incumbent upon the party invoking the Court’s jurisdiction to demonstrate that such jurisdiction exists (Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404 at 426; Meehan v Commissioner of Police (1999) 47 NSWLR 284 at [4]).

21. Although his Honour’s remarks were made in the context of an application to strike out pleadings, they are no less apposite to the present exercise by the Court of its power to summarily dismiss proceedings on the basis that it has no jurisdiction to entertain them.

22. More recently, in Ugur v Attorney General NSW [2019] NSWCA 86 White JA stated (at [70]-[71]):

70 One of the purposes of the power in r 13.4 of the UCPR to dismiss a proceeding summarily as frivolous or vexatious or as disclosing no reasonable cause of action or as being an abuse of the process of the court, is to save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings which raise no real question of fact or law. Another purpose is the protection of the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications.

71   The lack of a tenable cause of action must be clearly demonstrated. Various formulations have been used to describe the clarity that must exist before a claim can be summarily dismissed (see for example, Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 92; Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 (“Dey”); General Steel Industries Inc v Commissioner For Railways (NSW) (1964) 112 CLR 125 at 128–129; Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 at 99; Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; [2000] HCA 41 at [57]; Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28 at [24] (“Spencer v Commonwealth”); and O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71; 16 BPR 31,705 at [67].) If there is a real question either of fact or of law, then the application for summary dismissal must fail (Dey v Victorian Railways Commissioners at 91).

23. Although the Council pressed its reliance on r 13.4(1)(a) of the UCPR on the basis that the subject-matter of the dispute between itself and Mr Dolton had been ongoing for many years and that his claim disclosed no “arguable” cause of action, in my opinion, it is not necessary for the Court to separately consider this ground for summary dismissal. This is because, first, this is the only application that Mr Dolton has filed in the Court on this matter. The proceedings can therefore hardly be characterised as vexatious. And second, if Mr Dolton’s application discloses no arguable cause of action, this will be a sufficient basis to summarily dismiss the proceedings under r 13.4(1)(b) of the UCPR and r 13.4(1)(a) is therefore otiose.

The Court Does Not Have the Jurisdiction to Hear Mr Dolton’s Claim

24. The principal ground for the summary dismissal of the proceedings is that the Court lacks the jurisdiction to hear and determine Mr Dolton’s application.

25. In this regard, it is important to reiterate that Mr Dolton does not seek to challenge or appeal the 1998 refusal by the Council of the DA. He confirmed this to the Court during the oral hearing of the motion.

26. Given the passage of time, it is not surprising that he does not challenge the 1998 refusal by the Council. Mr Dolton would, in all likelihood, be out of time to file any appeal from (Class 1: see s 8.10 of the Environment Planning and Assessment Act 1979 (“EPAA”)), or judicial review of (Class 4: see r 59.10 of the UCPR), that determination. Therefore, because he is not seeking to challenge that decision, any interesting questions concerning the retrospective application of the current statutory time limitations to a decision made by the Council in 1998 need not be considered.

27. Again, it must be emphasised that the Council has not received any other development application from Mr Dolton seeking consent to erect a dwelling on his land.

28. At this juncture, it is worth observing that the Court is a superior court of limited statutory jurisdiction, whose jurisdiction is wholly conferred upon it by the LEC Act (Commissioner of Police (NSW) v Rabbits Eat Lettuce Pty Ltd [2019] NSWCA 182; (2019) 371 ALR 719 at [21], National Parks & Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 578 and 585 and ss 5 and 16 of the LEC Act.

Class 1

29. Section 17 of the LEC Act sets out the jurisdiction of the Court to hear and dispose of matters falling within Class 1 of the Court’s jurisdiction. Relevantly, s 17(d) confers jurisdiction on the Court to determine the following matters:

17   Class 1—environmental planning and protection appeals

The Court has jurisdiction (referred to in this Act as “Class 1” of its jurisdiction) to hear and dispose of the following—

…

(d) appeals, objections and applications under sections 75K, 75L, 75Q, 75W(5), 95A, 96, 96A, 97, 97AA, 98, 98A, 109K, 121ZK, 121ZM, 121ZS and 149F of the Environmental Planning and Assessment Act 1979,

30. Mr Dolton has not made any recent development application seeking consent for the erection of a dwelling house on his land. If such an application had been made then any refusal (actual or deemed) of it would entitle him to appeal to the Court in accordance with s 8.7 (formerly s 97) of the EPAA.

31. Rather, Mr Dolton has sought advice from the Council - over a considerable period of time - in relation to the applicability of (among other clauses) cl 4.2A of the ELEP presumably in relation to a potential development application for consent to construct a dwelling house on the land.

32. That Mr Dolton does not agree with the advice from the Council concerning the construction and application of cl 4.2A of the ELEP does not disclose a claim that falls within s 17 of the LEC Act, and in particular, within s 17(d) of the LEC Act. The Court does not have the jurisdiction to review or “set aside” the purported advice provided by the Council to Mr Dolton. The advice does not have the character of a pre-condition for the lawfulness of carrying out any development proposed by Mr Dolton falling within s 8.7 of the EPAA (see Rabbits Eat Lettuce at [42]).

33. Further, and contrary to Mr Dolton’s submission, the Council’s refusal to answer his letter dated 15 March 2020 does not constitute a deemed refusal by the Council of a development application that attracts the jurisdiction of the Court. As the Council correctly submitted, the process of applying for development consent by way of a development application is statutorily prescribed (see cl 50 of the Environment Planning and Assessment Regulation 2000) and this letter does not meet those requirements. Accordingly, the Council’s failure to respond to it does not constitute a deemed refusal for the purpose of Pt 8 of the EPAA which is concerned with Reviews and Appeals to this Court (thereby enlivening its Class 1 jurisdiction).

Class 2

34. Section 18 of the LEC Act sets out the jurisdiction of the Court to hear and dispose of matters falling within Class 2 of the Court’s jurisdiction. Relevantly, s 18(a) states that:

18   Class 2—local government and miscellaneous appeals and applications

The Court has jurisdiction (referred to in this Act as “Class 2” of its jurisdiction) to hear and dispose of the following—

(a) appeals or objections under sections 176, 177, 178, 180, 182 and 611 of the Local Government Act 1993,

35. Mr Dolton relied on s 176 of the Local Government Act 1993 (“LGA”) to confer jurisdiction on the Court to hear his claim:

176   Appeal by an applicant concerning an approval

(1)   An applicant who is dissatisfied with the determination of a council with respect to the applicant’s application for an approval may appeal to the Land and Environment Court.

36. The word “approval” is defined in the Dictionary of the LGA as meaning “an approval that is in force under this Act”. However, because the Council has not made a determination with respect to any application by Mr Dolton for approval under the LGA in relation to his land, s 176 does not confer any rights upon him. Mr Dolton’s letter dated 15 March 2020 does not constitute an application to the Council for an “approval” that a dwelling entitlement exists in respect of his land. This is because, if for no other reason, the Council does not have the power under the LGA to grant consent to erect a dwelling house on his land. Rather, that power is vested in the Council by reason of the EPAA.

37. Mr Dolton’s application therefore does not disclose a claim that falls within any of the legislation specified in s 18 of the LEC Act.

Class 3

38. Section 19 of the LEC Act sets out the jurisdiction of the Court to hear and dispose of matters falling within Class 3 of the Court’s jurisdiction. Of conceivable relevance is s 19(d) and (h) of that Act:

19   Class 3—land tenure, valuation, rating and compensation matters

The Court has jurisdiction (referred to in this Act as “Class 3” of its jurisdiction) to hear and dispose of the following—

…

(d)   appeals and applications under sections 179, 181, 526 (and section 526 as applied by section 531), 574, 677 and 730 of the Local Government Act 1993,

…

(h)   any other appeals, references or other matters which an Act provides may be heard and disposed of by the Court, being appeals, references or other matters that are not referred to in any other section of this Part.

39. However, for the reasons given above, Mr Dolton’s application does not disclose a claim that falls within any of the legislation specified therein, and therefore, jurisdiction to hear and dispose of his application cannot be conferred upon the Court by recourse to s 19(d) or (h) of the LEC Act.

Class 4

40. To the extent that Mr Dolton appears to seek some form of declaratory relief in respect of the Council’s advice concerning any dwelling entitlement under the ELEP, this claim would need to be brought in Class 4 of the Court’s jurisdiction. However, in the absence of a decision made by the Council, s 20 of the LEC Act is not engaged and cannot assist him, again, for the reasons discussed above.

41. While Mr Dolton could have commenced judicial review proceedings seeking to challenge the lawfulness of the Council’s decision in 1998 to refuse the DA, this is not what has occurred.

42. The Court repeats the discussion above in response to Mr Dolton’s argument that the refusal of the Council to reply to his 15 March 2020 letter constituted an actionable deemed refusal for the purpose of the EPAA.

Mr Dolton’s Further Submissions Against Summary Dismissal

43. In his “Sworn Deposition of Facts” and in oral argument Mr Dolton provided the following further reasons why his application should not be dismissed.

44. First, Mr Dolton relied on s 38 of the LEC Act to assert that the Court has the jurisdiction to hear and determine his claim. Section 38 of that Act is in the following terms:

38   Procedure

(1)   Proceedings in Class 1, 2 or 3 of the Court’s jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit.

(2)   In proceedings in Class 1, 2 or 3 of the Court’s jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits.

(3)   Subject to the rules, and without limiting the generality of subsection (2), the Court may, in relation to proceedings in Class 1, 2 or 3 of the Court’s jurisdiction, obtain the assistance of any person having professional or other qualifications relevant to any issue arising for determination in the proceedings and may receive in evidence the certificate of any such person.

(4)   In proceedings in Class 1, 2 or 3 of the Court’s jurisdiction, the Court may, in respect of a matter not dealt with by this Act or the rules, give directions as to the procedure to be followed at or in connection with the hearing.

(5)   In this section, a reference to the Court includes a reference to the Commissioner or Commissioners directed under section 36 to hear and dispose of proceedings.

45. This provision does no more than describe the procedure that the Court must follow when conducting proceedings in Class 1, 2 and 3 of the Court’s jurisdiction. It does not extend the Court’s jurisdiction to hear matters that fall outside the scope of ss 17, 18 and 19 of the LEC Act.

46. Second, Mr Dolton argued that the question of whether cll 4.2A, 4.2B or 4.2C of the ELEP provide his land with a dwelling entitlement is a “question of law” which has not been answered by the Council and which therefore confers jurisdiction upon the Court.

47. As the bundle of correspondence plainly indicates, the “question of law” identified by Mr Dolton has in fact been answered on multiple occasions by the Council. True it is that the Council did not respond to his letter dated 15 March 2020, or deal specifically with his argument concerning cl 4.2C of the ELEP (a clause that Mr Dolton claims he only recently became aware of), but nor was it obliged to, especially in light of its earlier responses which make it tolerably clear that in the Council’s view no dwelling entitlement exists with respect to his land under the ELEP.

48. In any event, even if the issue of whether the clauses identified by Mr Dolton provide his land with a dwelling entitlement give rise to a question of law, this is not, of itself, sufficient to confer jurisdiction on the Court under the LEC Act to hear and dispose of his application.

49. Third, Mr Dolton relied upon the Court’s Practice Note for Class 1, 2 and 3 Miscellaneous Appeals in support of his application (“Practice Note”). He contended that by not responding to his letter dated 15 March 2020, the Council was not assisting the Court as it was required to do under the Practice Note.

50. However, not only is there no properly constituted Class 1, 2 or 3 appeal before the Court, the Practice Note cannot confer jurisdiction upon the Court in circumstances where none is provided for under the LEC Act.

51. Fourth, Mr Dolton contended that because his land “complies” with the aims and objectives of the ELEP, in particular those set out in cll 4.2(1) and 4.2A of that instrument, this afforded him a dwelling entitlement. But whether or not the land complies with these stated aims and objectives is irrelevant to the question of whether the Court has the jurisdiction to hear and determine Mr Dolton’s claim. For the reasons given above, it does not.

52. Fifth and finally, Mr Dolton appeared to rely upon s 56A of the LEC Act. But, that provision is concerned with appeals to the Court from the decisions of commissioners:

56A   Class 1, 2, 3 and 8 proceedings—appeals to the Court against decisions of Commissioners

(1)   A party to proceedings in Class 1, 2, 3 or 8 of the Court’s jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners.

(2)   On the hearing of an appeal under subsection (1), the Court shall—

(a)   remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or

(b)   make such other order in relation to the appeal as seems fit.

(3)   Notwithstanding subsection (1), an appeal shall not lie to the Court under that subsection in respect of a question of law that has been referred to, and determined by, a Judge pursuant to section 36.

53. Because there has been no decision of a commissioner in respect of his claim, the provision has no application to these proceedings.

The Proceedings Against the Respondent Should Be Dismissed

54. As presently constituted, the Court does not have jurisdiction to hear and dispose of Mr Dolton’s claim. As a consequence, Mr Dolton’s application discloses no reasonable cause of action.

Mr Dolton Should Not Pay the Council’s Costs

55. The Council sought its costs of the motion. This was opposed by Mr Dolton.

56. Rule 3.7(2) of the Land and Environment Court Rules 2007 provides that the usual position in relation to costs for appeals under Classes 1 to 3 of the Court’s jurisdiction is that:

3.7   Costs in certain proceedings

(2)   The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances.

57. The circumstances in which the Court might consider the making of a costs order to be “fair and reasonable" include those described in r 3.7(3)(f):

3.7   Costs in certain proceedings

(3)   Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following—

…

(f)   that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where—

(i)   the claim or defence (as appropriate) did not have reasonable prospects of success, or

(ii)   to commence or continue the claim, or to maintain the defence, was otherwise unreasonable.

58. The Council relied upon the following exchange before the Registrar on 13 June 2020 (set out in Ms Menyhart’s affidavit), as evidence of the fact that Mr Dolton was put on notice that his application contained no cause of action:

8   On 13 June 2020 I appeared before Registrar Anastasi on behalf of the Council at the first telephone directions hearing for the matter. At that time, an exchange to the following effect took place:

I said   Registrar, there may be a jurisdictional issue with the Application. Although it has been filed as a Class 1 Application, it does not relate to any EPA Act application. My understanding is that the Applicant is seeking a response to a letter.

The Registrar said   It has been put into the Class 3 directions list. Do you know why Ms Menyhart? It might be because it is a miscellaneous appeal.

I said   Registrar, I request that the matter be stood over for a couple of weeks to enable me to review the file material, consider the jurisdictional question and speak to the Applicant about that issue.

If there is a jurisdictional issue then I anticipate seeking instructions to have the application struck out, if it is not discontinued, but I will review the background information to better understand the issue.

The Registrar said   Mr Dolton, did you speak to the duty solicitor before you filed the application? Ms Menyhart is saying that you may not have a cause of action.

Mr Dolton said   Yes I did

The Registrar said   And what did they say?

Mr Dolton said   They said to file it.

59. Whether or not the duty solicitor told Mr Dolton to “file it” cannot be conclusively established absent affidavit evidence from that individual. However, the exchange plainly indicates that Mr Dolton was put on notice that, in the Council’s opinion, he has no maintainable cause of action and that the Council might seek to strike out the proceedings.

60. In addition, as deposed to in Ms Menyhart’s affidavit, on 13 July 2020 the Council wrote to Mr Dolton explaining that the Court did not have jurisdiction to hear his application and inviting him to withdraw it within 14 days. The letter went on to warn that if the proceedings were not discontinued within this stipulated time period and the Council was successful in having the claim struck out, then he “may be ordered to pay the legal costs incurred by the Council”. The Council urged Mr Dolton to seek legal advice as to the validity of his application.

61. By way of reply, on 25 July 2020 Mr Dolton wrote to the Council stating that he would not be discontinuing his application and again contending that cll 4.2A, 4.2B and 4.2C of the ELEP clearly conferred a dwelling entitlement upon his land. He accused the Council of having “jumped-the-gun” with respect to the question of costs.

62. The Council therefore submitted that Mr Dolton has persisted in continuing with proceedings that plainly disclose no cause of action notwithstanding warnings from the Council that his application was deficient and that if he was unsuccessful, it would seek its costs of defending the matter.

63. However, on at least three occasions since November 2016, the Council, in written communications with Mr Dolton, expressly indicated that it was “open” to him to pursue “the matter” (that is, their specific advice that his land did not have a dwelling entitlement) in this Court (see the letters dated 18 November, 2 December and 19 December 2016 and 15 February 2017).

64. In my view, although Mr Dolton’s claim as presently constituted does not have reasonable prospects of success, his persistence with it is not wholly unreasonable in circumstances where the Council repeatedly told him in correspondence that he could “take the matter to the Land and Environment Court for a final determination”. Having encouraged Mr Dolton to engage in the very course of conduct (the filing of his application) that has resulted in its notice of motion, albeit four years earlier, it is neither fair nor reasonable for the Council to now seek an order for costs (Goode at [33]-[35]). In arriving at this conclusion, I am mindful of the fact that Mr Dolton is not legally represented and is 84 years old.

Orders

65. In conformity with the reasons given above, the Council’s notice of motion should be acceded to and Mr Dolton’s application should be dismissed, with each party to pay their own costs of the application.

66. The formal orders of the Court are therefore that:

1. the application filed by the applicant on 27 May 2020 is dismissed; and

2. the exhibits are to be returned.

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Decision last updated: 02 October 2020