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Foster v Sutherland Shire Council

Foster v Sutherland Shire Council

Case [2001] NSWLEC 89

Statutory Interpretation

Uncertainty of Order

Compliance with Legislation

Legitimate Expectation

Environmental Law

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Reported Decision: (2001) 115 LGERA 130

Land and Environment Court

of New South Wales

CITATION: Foster v Sutherland Shire Council [2001] NSWLEC 89

PARTIES:
APPLICANT
Foster
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S): 10086 of 2001

CORAM: Cowdroy J

KEY ISSUES: Question of Law :- order issued pursuant to s 121B of the EP&A Act requiring appellant to cease using such premises for short term accommodation - terms of order uncertain - order invalid

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 121B
Land and Environment Court Act 1979 s 36(5)

CASES CITED: Australian Federation of Construction Contractors v Australian Building Construction Employees’ and Builders Labourers’ Federation (1984) 73 FLR 61;
Miller-Mead v Minister of Housing and Local Government & Anor [1963] 2 QB 196 ;
Munnich v Godstone Rural District Council [1996] 1 All ER 930 ;
North Sydney Municipal Council v Sydney Serviced Apartments Pty Limited (1990-1991) 21 NSWLR 532;
Redland Bricks Limited v Morris [1970] AC 652;
Stutchbury v Pittwater Council (1999) 105 LGERA 1 ;
Trade Practices Commission v Glo Juice Pty Limited (1987) 73 ALR 407;
Trade Practices Commission v Walplan Pty Limited (1985) 7 ATPR 47-174;
Van Hasteren v South Sydney Council (2000) 109 LGERA 252;
Vicbrow v Willoughby City Council (1997) 96 LGERA 288;

DATES OF HEARING: 7/5/01

DATE OF JUDGMENT:
06/07/2001

LEGAL REPRESENTATIVES:

APPLICANT
Mr W Purdon (Solicitor)
SOLICITORS
William Purdon, Solicitor
RESPONDENT
Mr R Wilcher (Solicitor)
SOLICITORS
Baker & McKenzie

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 10086 of 2001
CORAM: Cowdroy J
DECISION DATE: 7/06/01

Eric William Foster

Sutherland Shire Council

JUDGMENT

Facts

1. By application class one dated 7 February 2001 the applicant appeals against an order issued on 4 January 2001 (“the order”) by Sutherland Shire Council (“the council”) pursuant to s 121B of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). This appeal is currently being heard by Commissioner Brown of this Court. Pursuant to s 36(5) of the Land and Environment Court Act 1979 Commissioner Brown has referred the following question of law to the Court for determination:-

Whether the instrument issued by the respondent pursuant to s 121B of the Environmental Planning and Assessment Act 1979 dated 4 January 2001 served on the appellant constituted a valid enforcement notice

Particulars

(a) The instrument did not tell the appellant fairly what he had done wrong and what he must do to remedy it
(b) The instrument did not give adequate reasons as to why the use of the appellant’s premises for short-term accommodation was prohibited by law as required by the Environmental Planning and Assessment Act 1979.

2. The order relates to Lot 11 SP 262 (Unit 201, No 4) Boorima Place Cronulla which compromises a strata titled home unit (“the home unit”) which is jointly owned by the applicant and his wife. Mr Eric Foster (“the applicant”) has instituted these proceedings as the order was issued solely in his name. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Foster v Sutherland Shire Council

Details

AGLC: Foster v Sutherland Shire Council [2001] NSWLEC 89
Case: [2001] NSWLEC 89
Decision Date: 06/07/2001

CaseChat Overview and Summary

In Foster v Sutherland Shire Council, the applicant, Eric William Foster, appealed against an order issued by Sutherland Shire Council pursuant to section 121B of the Environmental Planning and Assessment Act 1979 (EP&A Act). The order required the applicant to cease using his residential premises for short-term accommodation, which he claimed was uncertain and therefore invalid. The case was heard by Commissioner Brown of the Land and Environment Court of New South Wales, who referred a question of law to the Court regarding the validity of the order.

The central issue the Court had to decide was whether the order issued by the council constituted a valid enforcement notice under section 121B of the EP&A Act. The applicant argued that the order was uncertain because it did not specify the duration required to constitute 'short-term accommodation' and did not provide adequate reasons for why such use was prohibited. The council, on the other hand, contended that the order was valid and that any use of residential premises for less than six months did not constitute a residential use.

The Court held that the order was invalid due to its uncertainty. It noted that court orders, including those issued under section 121B of the EP&A Act, must be formulated in precise terms to avoid the potential for continual breaches. The Court found that the order did not provide an objective standard against which the prohibited use could be determined with certainty, and therefore, it did not 'tell him [the applicant] fairly what he has done wrong and what he must do to remedy it'. Additionally, the Court found that the reasons provided in the order were inadequate as they did not state the objective criteria against which the applicant could establish that 'short-term accommodation' constituted a prohibited use.

The Court answered the question of law referred to it by determining that the order dated 4 January 2001 issued by the respondent pursuant to section 121B of the EP&A Act was not a valid order. The Court ordered that the proceedings be listed before the registrar for directions on 14 June 2001. No order for costs was made in this case as there were no exceptional circumstances to justify a departure from the Practice Direction 1993.

Orders