Lindner v The Corporation of the City of Marion - [2015] SASC 152

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division: Application)
LINDNER & ANOR v THE CORPORATION OF THE CITY OF MARION
[2015] SASC 152
Judgment of The Honourable Justice Parker
30 September 2015
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - SUMMARY JUDGMENT
LOCAL GOVERNMENT - POWERS, FUNCTIONS AND DUTIES OF COUNCILS GENERALLY - POWERS GENERALLY - EXERCISE OF POWERS - CHALLENGES TO
STATUTES - ACTS OF PARLIAMENT - STATUTORY POWERS AND DUTIES - EXERCISE - LOCAL COUNCILS
STATUTES - ACTS OF PARLIAMENT - STATUTORY POWERS AND DUTIES - EXERCISE - REMEDIES PROVIDED BY ACT - EXCLUSIVE REMEDY
ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - APPLICATIONS - FORMALITIES - NOTICE
EQUITY - GENERAL PRINCIPLES - FIDUCIARY OBLIGATIONS - ASCERTAINMENT OF RELATIONSHIP
TORTS - NUISANCE - WHO MAY BE SUED FOR
TORTS - MISCELLANEOUS TORTS - CONSPIRING TO INJURE - GENERAL PRINCIPLES
The defendant applied for summary judgment on the ground that there was no reasonable basis for the claim made against it. In the alternative, the defendant sought orders dismissing or striking out certain parts of the statement of claim. The claim had been brought in respect of the defendant’s decision as a planning authority to grant approval under the Development Act 1993 for a development on land at Glengowrie. The plaintiffs were residents on the adjoining land. The plaintiffs alleged that the defendant failed to correctly assess the development application. The plaintiff’s claim alleged jurisdictional error, breach of fiduciary and statutory duties, breach of a duty of loyalty, conspiracy to defraud, constructive fraud, fraud on a power and nuisance.
Held: Summary judgment entered in favour of the defendant:
(1) In the absence of an application for judicial review, the allegation of jurisdictional error serves no purpose.
(2) Fiduciary duty has no part in the statutory scheme under the Development Act 1993 and a claim for breach of fiduciary duty therefore has no basis.
(3) In the absence of both a fiduciary relationship and an intentional concealment of rights there is no reasonable basis for a claim of constructive fraud.
(4) The powers and duties of a planning authority under the Development Act 1993 were conferred for the benefit of the public generally and not for the benefit of individuals or classes of individual. Therefore there is no reasonable basis for a claim of breach of statutory duty.
(5) The imposition of liability on a public authority for a nuisance arising from actions that it had authorised in the exercise of its discretionary statutory powers is well outside the scope of the tort of private nuisance. Therefore there is no reasonable basis for the claim.
(6) Absent an allegation that the defendant conspired to cause harm to the plaintiff the tort of conspiracy cannot be made out.
(7) As there is no basis for the allegation of equitable fraud, that is also the case with respect to the allegation that there has been an aiding and abetting on a fraud.
(8) Councils do not owe individual rate-payers a fiduciary duty so there is no basis in law for the allegation that the defendant committed a fraud on a power.
Development Act 1993 s 3, s 35, s 38, s 38(3), s 38(5), s 86(1)(b), s 86(1)(f), referred to.
Miller & Croak Pty Ltd v Auburn Municipal Council [1960] SR (NSW) 398; Casley-Smith v FS Evans & Sons Pty Ltd (No 5) (1989) ATR 80-227; (1988) 67 LGRA 108, applied.
Prescott v Birmingham Corporation [1955] 1 Ch 210; Bromley Local Borough Council v Greater London Council [1983] 1 AC 768; R v London Transport Executive; Ex parte Greater London Council [1983] QB 484; Roberts v Hopwood [1925] AC 578, not followed.
Charles Terrence Estates Ltd v Cornwall Council [2013] 1 WLR 466; Criterion Theatres Ltd v Municipal Council of Sydney (1925) 35 CLR 555; Municipal Councl of Sydney v Campbell [1925] AC 338; IW v City of Perth (1996) 191 CLR 1; Paki v Attorney-General [2011] 1 NZLR 125; Mabo v Queensland (No 2) (1992) 175 CLR 1; Wik Peoples v Queensland (1996) 187 CLR 1; Kitchen v Royal Air Force Association [1958] 1 WLR 563; King v Victor Parsons & Co [1973] 1 All ER 206; Byrne v Australian Airlines Ltd (1995) 185 CLR 410, discussed.
Spencer v The Commonwealth (2010) 241 CLR 118; Theseus Exploration NL v Foyster (1972) 126 CLR 507; Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401; Chan v Zacharia (1984) 154 CLR 178; Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; Breen v Williams (1996) 186 CLR 71; Archer v Moss [1971] 1 QB 406; Josephson v Walker (1914) 18 CLR 691; Grand Central Car Park Pty Ltd v Tivoli Freeholders [1969] VR 62; Attorney-General v Birkenhead Borough [1968] NZLR 383; Buxton v Minister of Housing and Local Government [1961] 1 QB 278; Torette House v Berkman (1940) 62 CLR 637; De Jager v Payneham and Magill Lodges Hall Inc (1984) 36 SASR 498; Fennell v Robson Excavations [1977] 2 NSWLR 486; Bird v O'Neal [1960] AC 907; Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383; Wagstaff v Edison Bell (1893) 10 TLR 80; Bank of New Zealand v Kilvert [1984] 1 NZLR 525; Kent v Cavanagh (1973) 1 ACTR 43; Bathurst City Council v Saban (No 2) (1986) 58 LGRA; Nielsen v Brisbane Tramways Co Ltd (1912) 14 CLR 354; Allen v Gulf Oil Refining [1981] AC 1001; Benning v Wong (1969) 122 CLR 249; Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] ATPR 42-013; [2004] FCAFC 169; Lonhro Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"summary judgment, jurisdictional error, fiduciary relationship, fiduciary duty, statutory duty, constructive fraud, nuisance, conspiracy, aiding and abetting fraud, fraud on a power"

LINDNER & ANOR v THE CORPORATION OF THE CITY OF MARION
[2015] SASC 152
Land and Valuation Division:

PARKER J: The City of Marion (Marion) has applied for summary judgment under r 232(2)(b) of the Supreme Court Civil Rules 2006 on the ground that there is no reasonable basis for the claim made against it. In the alternative, Marion has sought orders under r 193 and r 104 dismissing, or alternatively, striking out certain paragraphs of the Lindners’ statement of claim. For the reasons that follow I order that summary judgment be entered in favour of the Corporation of the City of Marion.
On 13 November 2007 Marion granted approval under the Development Act 1993 (the Act) for a development on land at Glengowrie adjoining land owned by the plaintiffs, Mr and Mrs Lindner (the Lindners), and upon which they reside.
As a result of the alleged failure by Marion to assess correctly the development application the Lindners claim that it made jurisdictional errors and breached the fiduciary and statutory duties it owes to them. They also allege that Marion has a duty of loyalty to them, has engaged in a conspiracy to defraud them and has brought about a constructive fraud. In addition, the action of Marion is alleged by the Lindners to have constituted a fraud on a power and a nuisance.
In the prayer for relief the Lindners seek declarations that the proposed development constituted two residential flat buildings and that the development approval granted by Marion on 30 November 2007 was void. They also seek a declaration that the conduct by Marion brought about a constructive fraud upon them, a declaration that Marion breached its fiduciary and statutory duties and a declaration that Marion committed a fraud on a power. They seek equitable compensation, damages at common law, restitutionary damages and, in the alternative, an order that Marion compulsorily acquire and demolish the buildings constructed pursuant to the planning approval.
Background
The Lindners allege that the plans provided to Marion by the applicant for development plan consent did not comply with the relevant provisions of the Act, the Development Regulations 1993 (the Regulations) and the Development Plan for the City of Marion. It is unnecessary to refer in detail to the various contentions made by the Lindners in support of their claim that Marion failed to properly decide the application. Those contentions extend over more than ten pages of the second statement of claim. In essence, the complaint is that Marion should have assessed the proposed development on the basis that it was for two residential flat buildings rather than as row dwellings or semi-detached dwellings.
The Lindners have pleaded that the effect of the alleged error made by Marion in the assessment of the application was that the proposed development was wrongly categorised as Category 1 instead of Category 3. In accordance with s 38(3) of the Development Act the effect of the Category 1 classification was that Marion was prohibited from seeking, on its own initiative, the views of the Lindners and other owners or occupiers of adjacent land in relation to the granting or refusal of development plan consent.
If the application had been treated as a Category 3 development Marion would have been required by s 38(5) to give notice to the Lindners and others and to the public generally. If the Lindners had made a representation to Marion about a Category 3 development it would have been required to accord them a reasonable opportunity to appear personally or by representative to express their views about the proposal. The Lindners would also have been entitled under s 86(1)(b) of the Act to apply to the Environment, Resources and Development Court (the ERD Court) for review of the decision.
Section 86(1)(f) of the Act confers upon owners or occupiers of adjacent land a right to seek review by the ERD Court of a decision as to the nature of a development, including any decision that is relevant to the operation of s 35. They may also seek review of a decision under s 38 as to the category of the development. Thus, the Lindners could have applied to the ERD Court for review of the decision by Marion to treat the neighbouring development as Category 1. They did not seek that relief nor did they apply for judicial review of Marion’s decisions.
The test for summary judgment
Both Marion and the Lindners have submitted that the power of the Court to order summary judgment for a defendant must not be lightly exercised. However, Marion has also contended that the test under the current r 232 is less stringent than was the case under r 25.04 of the 1987 rules. The current r 232(2)(b) does not require a determination by the Court that proceedings will necessarily fail.
The submissions on behalf of the Lindners as to the test to be applied in a summary judgment application were not significantly different from those made for the defendant. Marion must establish that there is no reasonable basis for the claim against them. Particular care must be taken where the case may turn on disputed factual issues.[1] In most instances, if a matter involves difficult questions of law, it is better left to be decided at trial.[2]
[1] Spencer v The Commonwealth (2010) 241 CLR 118.
[2] Theseus Exploration NL v Foyster (1972) 126 CLR 507; Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401.
Against that counsel for Marion submitted that in those instances where the decision whether there is a reasonable basis for the claim simply involves a question of statutory construction or the application of well settled law that can be decided on the limited facts available the Court should make that decision rather than refer the question for trial. I accept the correctness of that proposition and will proceed accordingly.
I will consider the various causes of action advanced by the Lindners in light of the preceding principles.
Counsel for Marion sought to draw a distinction between what he described as basal facts and factual contentions. He explained that distinction on this basis. The term “basal fact” was intended to recognise that in an application for summary judgment or strike out it was necessary to accept that any significant factual dispute must be left for resolution by the trial judge. Thus, Marion must accept for the purposes of the present application that the basal facts were established even though those matters may be keenly contested should the matter proceed to trial. Counsel further submitted that while Marion must accept for present purposes the correctness of the basal facts, that approach was not required in relation to factual contentions. By way of example, counsel referred to the allegation that there was a conspiracy between Marion and the applicant for development approval that was designed to deprive the Lindners of their statutory rights. The existence of such a conspiracy was a factual contention that the Lindners sought to make in reliance upon the basal facts. Counsel submitted that Marion was not required for the purposes of the present application to accept the correctness of those factual contentions.
For reasons that will become apparent in this judgment, I have not found it necessary to draw a distinction between basal facts and factual contentions.
Declarations
The remedies sought by the Lindners include declarations that the proposed development constituted two residential flat buildings and that the development approval was void. Because the development has long been completed, the proposed declarations would, of themselves, have no practical effect. For that reason, the matter needs to be approached on the basis that the allegations concerning the true characterisation of the development and the invalidity of the development approval must be considered in the context of the other relief sought by the Lindners rather than as an independent remedy.
Jurisdictional error
The Lindners have pleaded at paragraph 21 of the second statement of claim that Marion had made jurisdictional errors by failing to follow mandatory procedures under the Act and Regulations.
An allegation that the holder of a statutory power has fallen into jurisdictional error may be pursued in judicial review proceedings. However, the Lindners’ statement of claim does not purport to be an application for judicial review. They have also not sought an extension of time to pursue such an action. The apparent purpose of the allegations of jurisdictional error is to provide a foundation for the other causes of action relied upon by the Lindners. The other causes of action can be considered on their own terms without the need for a separate finding of jurisdictional error. When viewed in isolation from the other causes of action that have been pleaded, and in the absence of an application for judicial review, the allegation of jurisdictional error serves no purpose.
Breach of fiduciary duty
The Lindners have pleaded at paragraph 23 of the second statement of claim that Marion has acted contrary to the fiduciary and statutory duties that it owes to them and other residents on the basis that it is responsible to ensure proper and orderly development to the benefit of all residents. The Lindners have listed eight separate considerations that are said to form the basis for the fiduciary duty owed to them and to others who may be potentially affected by the development. These considerations may be summarised as follows:
·Marion was in a position of authority to make decisions which may have affected, or may have had the potential to affect, the legal rights of the Lindners and others;
·Marion was in a position of trust;
·Marion held a discretion in correctly categorising the proposed development;
·Marion’s planning officer had a duty to act bona fide and for the purpose intended by the Act and Regulations;
·The Lindners were dependent upon Marion to act bona fide when it assessed the nature of the development and assigned it to a category under s 38 of the Act and reg 16 of the Regulations. That placed the Lindners in a position of vulnerability as to whether they would have the legal right to make representations in relation to the proposed development;
·Marion was in a superior position and had superior knowledge in relation to the planning law, the development plan and the planning process;
·Marion had a duty of loyalty to the applicant to the proposed development to assess the application properly, and also a duty of loyalty to the Lindners and others who would be potentially affected by the proposed development if it were to be approved;
·Marion acted for an improper purpose in dealing with the development application and treating it as a Category 1 development. The improper purpose is said to be avoiding the right of the Lindners and others to make appropriate representations about the proposed development and avoiding the provisions of s 38 of the Act.
It is submitted on behalf of the Lindners that because of these various matters they were totally reliant upon Marion to categorise and publicise properly the proposed development so as to protect their interests.
The nature of a fiduciary relationship
Counsel for the respective parties both acknowledged that there is no satisfactory single test to identify a fiduciary relationship. I also note that the categories of fiduciary relationships are not closed.[3] Further, as Deane J noted in Chan v Zacharia, “fiduciary relationships may take a wide variety of forms and may give rise to a wide variety of obligations”.[4] A relationship may be fiduciary in some respects and not others.[5]
[3] Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, Mason J at 96.
[4] (1984) 154 CLR 178 at 195.
[5] Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, Gibbs CJ at 73; Breen v Williams (1996) 186 CLR 71, Brennan CJ at 82–83.
A passage from the judgment of Mason J (as his Honour then was) in Hospital Products Ltd v United States Surgical Corporation is often cited as a convenient, but not exhaustive, summary of the principles applied to identify such a relationship:[6]
The accepted fiduciary relationships are sometimes referred to as relationships of trust and confidence or confidential relations (cf Boardman v Phipps) viz., trustee and beneficiary, agent and principal, solicitor and client, employee and employer, director and company, and partners. The critical feature of these relationships is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position. The expressions “for”, “on behalf of”, and “in the interests of” signify that the fiduciary acts in a “representative” character in the exercise of his responsibility, to adopt an expression used by the Court of Appeal.
It is partly because the fiduciary’s exercise of the power or discretion can adversely affect the interests of the person to whom the duty is owed and because the latter is at the mercy of the former that the fiduciary comes under a duty to exercise his power or discretion in the interests of the person to whom it is owed: see generally Weinrib, “The Fiduciary Obligation”, University of Toronto Law Journal, vol. 25 (1975), pp 4-8.
[6] Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 96–97.

Counsel also referred to a statement by Dawson J in Hospital Products Ltd v United States Surgical Corporation that:[7]
There is, however, the notion underlying all the cases of fiduciary obligation that inherent in the nature of the relationship itself is a position of disadvantage or vulnerability on the part of one of the parties which causes him to place reliance upon the other and requires the protection of equity acting upon the conscience of that other: see Tate v. Williamson.
[7] Ibid at 142.
Fiduciary relationships may either be based upon trust and confidence or be recognised as a relationship of influence where the fiduciary is presumed to have exercised influence over the beneficiary in the absence of proof to the contrary.[8] The latter class of relationship is not relevant to the present matter.
[8] John Glover, Commercial Equity: Fiduciary Relationships (Butterworths, 1995) at [1.12]–[1.14].
If there is a fiduciary relationship based upon trust and confidence one party to the relationship will have assumed an obligation to act in the interests of the other. That obligation arises where one party has placed trust in another or, alternatively, they are entitled to do so. The fiduciary must avoid conflicts of interest and duty, and cannot profit from the relationship. The Lindners contend that they have a fiduciary relationship with Marion that is based upon trust and confidence.
Counsel relied on a range of authorities in support of his contention that Marion was under a fiduciary duty to the Lindners. Those authorities covered relationships as diverse as those between a local government council and ratepayers or residents, and that between a Government and indigenous landowners.
The English local government cases
Counsel submitted that it has long been recognised that the relationship between a ratepayer and a council may create a fiduciary duty. He referred to the decisions of the English courts in Prescott v Birmingham Corporation,[9] Bromley Local Borough Council v Greater London Council[10] and R v London Transport Executive; Ex parte Greater London Council.[11]
[9] [1955] 1 Ch 210.
[10] [1983] 1 AC 768.
[11] [1983] QB 484.
Those three English cases each turned upon a finding by the relevant court that a council owed a fiduciary duty to its ratepayers as a whole. The genesis of this line of authority is the decision of the House of Lords in Roberts v Hopwood,[12] where it was held that a council had acted unlawfully by paying wages to its employees in excess of the prevailing rate. Lord Atkinson held that the duty owed by a local authority to its ratepayers was somewhat like the duty owed by trustees or the managers of property of others.[13]
[12] [1925] AC 578.
[13] Ibid at 595–596.
The Court of Appeal held in Prescott that by operating a scheme to provide free bus transport to aged persons the Birmingham Council had breached a fiduciary duty owed to its ratepayers. In Bromley the House of Lords held that the Greater London Council (GLC) had breached its fiduciary duty to its ratepayers by directing Bromley to raise an additional rate to pay for a 25% reduction in public transport fares for services under the control of the GLC. In London Transport Executive the Court of Appeal considered further questions arising from the finding by the House of Lords in Bromley that the GLC owed a fiduciary duty to ratepayers.
Counsel for the Lindners submitted that it is still good law in England that some decisions of local councils will amount to a breach of fiduciary duty, or a breach of an analogous duty, and on that basis a decision may be found to be ultra vires and void.[14] However, Associate Professor John Glover has suggested in Equity, Restitution and Fraud that “the role of the fiduciary notion has been reduced to metaphor status in public law”.[15] For the reasons that appear at paragraph 46 below, it is not necessary for me to pursue that question.
[14] See eg Charles Terrence Estates Ltd v Cornwall Council [2013] 1 WLR 466 at [17].
[15] (LexisNexis Butterworths, 2004) at [2.89].
Australian local government cases
Counsel for the Lindners also submitted that the High Court had specifically contemplated the existence of a fiduciary relationship in respect of local government authorities. Counsel referred to a comment made by Higgins J in Criterion Theatres Ltd v Municipal Council of Sydney,[16] where his Honour expressed his opinion as to the legal principle established by the advice of the Privy Council in Municipal Council of Sydney v Campbell.[17] Higgins J suggested that the basis of the advice in Campbell was that the case involved a fraud on a power, not being a fraud in the criminal sense but an attempt to use for purpose B a power conferred for purpose A. In that case the council used its statutory powers to compulsorily acquire land on the basis that it was needed for extension of a road, but certain parts of the land were not in fact needed for the extension and were acquired to gain the benefit of the increased land value arising from the extension.
[16] (1925) 35 CLR 555 at 563.
[17] [1925] AC 338.
Counsel submitted that the observations made by Higgins J could only be explained on the basis that he regarded Campbell as being based on a finding that there was a fiduciary relationship and that led to the conclusion that there had been a fraud on a power. The Privy Council had stated that “a body such as the Municipal Council of Sydney, authorised to take land compulsorily for specified purposes, will not be permitted to exercise its powers for different purposes, and if it attempts to do so, the courts will interfere”.[18]
[18] Ibid at 343.
I consider it to be quite clear from the latter passage that the Privy Council formulated its advice in Campbell on the basis that the council had used its power for an improper purpose in the administrative law sense. I consider that the reference by Higgins J in Criterion Theatres to a “fraud on a power” should be regarded as simply a particular manner of describing the use of a statutory power for an improper purpose in an administrative law sense. The remainder of the paragraph following the reference to a “fraud on a power” analyses the matter on that basis. In particular, Higgins J expressly stated that the council in Campbell had been attempting to resume the land for an illegitimate purpose. That language clearly encapsulates the administrative law concept of a statutory power being used for an improper purpose.
In IW v City of Perth Gummow J noted that:[19]
The proposition, espoused in English decisions such as Bromley London Borough Council v Greater London Council, that in the exercise of certain statutory powers and authorities local government bodies owe fiduciary duties to the ratepayers to date has not been accepted in Australia. In this case, it is unnecessary to determine whether any such proposition should be accepted here.
[19] (1996) 191 CLR 1.
While Gummow J left open the question of whether the English authorities should be followed in Australia so that a council may owe a fiduciary duty to its ratepayers, the important point is that the English cases were each decided on the basis that a council owed a duty to its ratepayers as a collective group. Counsel was unable to refer me to any case where a local authority had been found to owe a fiduciary duty to an individual resident when it was exercising its statutory powers.
Even if the English approach were to be adopted in Australia so that a council is under a fiduciary duty to its ratepayers, for the reasons discussed at paragraphs 41 to 44 below, at least in relation to the exercise of a council’s powers over development, such a duty could only be owed to ratepayers collectively rather than to an individual resident.
Duties of the Crown to indigenous land owners
Counsel referred to the judgment of the New Zealand Court of Appeal in Paki v Attorney-General[20] on the basis that it included an extensive discussion about the extent to which a fiduciary duty will be found in a public law context. That case concerned a claim by a Maori community that they had a beneficial interest in a length of riverbed based upon a fiduciary relationship between the Crown and the original Maori landowners. Without deciding the point, the Court of Appeal suggested that it was preferable not to apply the notion of fiduciary duty to the relationship between the Crown and the Maori people. However, the Court suggested that there may be a basis to develop an analogous duty for the Crown to act in good faith.[21] Other than making that suggestion, the Court of Appeal did not take the issue any further.
[20] [2009] 1 NZLR 125.
[21] Ibid [102]–[111].
Counsel for the Lindners also noted that there has been some discussion in the Australian authorities as to whether the Crown owes fiduciary duties to the holders of native title. In Mabo v Queensland (No 2) Toohey J held that the power of the Crown to extinguish native title by alienating land or otherwise gave rise to a fiduciary duty.[22] The basis for his Honour’s view was that the power to destroy a people’s interest was so extraordinary that it required regulation by equity.
[22] (1992) 175 CLR 1 at 203.
The view expressed by Toohey J has not been adopted in subsequent cases. His Honour’s approach was specifically rejected by Brennan CJ in Wik Peoples v Queensland.[23] The former Chief Justice held that there was no basis to find that the Crown owed fiduciary duties to the holders of native title when it had power to extinguish native title without the consent of the owners and contrary to their interests.
[23] (1996) 187 CLR 1 at 96.
The views expressed by Brennan CJ in Wik were not limited to the rejection of the suggestion that the Crown owed fiduciary duties to the holders of native title but applied more generally to the exercise of discretionary powers, whether statutory or not. His Honour stated:[24]
The exercise of statutory powers characteristically affects the rights or interests of individuals for better or worse. If the exercise of a discretionary power must affect adversely the rights or interests of individuals, it is impossible to suppose that the repository of the power shall so act that the beneficiary might expect that the power will be exercised in his or her interest. The imposition on the repository of a fiduciary duty to individuals who will be adversely affected by the exercise of the power would preclude its exercise. On the other hand, a discretionary power – whether statutory or not – that is conferred on a repository for exercise on behalf of, or for the benefit of, another or others might well have to be exercised by the repository in the manner expected of a fiduciary.
[24] Ibid.
Discussion
In my opinion, the submission that Marion owed the Lindners a fiduciary duty when it made its decision under the Act is based on a misunderstanding of the principles that must be applied to determine when a fiduciary duty will exist. Alternatively, or perhaps additionally, the submission fails to recognise properly the duties of Marion as a planning authority when it makes a decision under the Act.
The submission that Marion owed the Lindners a fiduciary duty when it characterised the proposed development as Category 1, and decided the application on that basis, rests on the premise that Marion was under a duty to protect their interests (and that of other landowners close to the proposed development) in preference to the interests of the applicants for development approval. There are several difficulties with that contention.
One difficulty arises from the legislative scheme. There is nothing whatsoever in the Act that requires a planning authority to prefer the interests of neighbouring landowners against the interests of a person seeking development approval (or vice versa). More particularly, the contention is completely at odds with the objects set out in s 3 of the Act. The primary object of the Act is to provide for proper, orderly and efficient planning and development. To that end, the Act provides for the creation of development plans so as to enhance the proper conservation, use, development and management of land and buildings, to facilitate sustainable development and the protection of the environment, and to advance the social and economic interests and goals of the community. A further object is to provide for appropriate public participation in the planning process and the assessment of development proposals.
It is clear from these objects, and from the scheme of the Act more generally, that a planning authority must not favour one interest over others when it decides whether or not to grant development consent except to the extent that the planning regime dictates. Both the applicant and neighbouring landowners are entitled to expect that the application will be decided according to law.
A further difficulty with the contention that Marion was under a fiduciary duty is that there is no basis to distinguish between the competing interests. A simple example serves to illustrate the point. A landowner may apply for development approval to rebuild or extend their premises. A neighbour may oppose the application. A fiduciary must act in the best interests of the beneficiary. The problem for the council is that when it makes its decision on the application there would be no basis upon which preference could be given to one resident or ratepayer over another. If the council were to prefer the applicant or objector, it must necessarily breach its fiduciary duty to one or the other. Such an approach would not be permitted by the legislative scheme and may give rise to an administrative law remedy.
If the fiduciary duty relied upon by the Lindners requires no more than that Marion characterise and decide the application in accordance with the Act, then the obligations imposed by the duty do not resemble those to which a fiduciary is subject. As I have already noted, a fiduciary must act in the interests of the beneficiary, avoid conflicts of interest and duty, and not profit from the relationship. A duty to decide applications according to law does not bear any of those characteristics. The duty arises under the legislative scheme and is enforced through the processes of administrative law. It does not indicate the existence of a fiduciary relationship.
The decision-making process under the Act would be completely frustrated if a planning authority, such as Marion, owed a fiduciary duty to owners of land adjacent to a proposed development. In deciding a development application a planning authority must act in accordance with the Act, the Regulations and the relevant development plan free from any notion of fiduciary duty to a particular person or group. The decision will, to the extent provided in the Act, be subject to appeal and also potentially amenable to judicial review. Fiduciary duty has no part in that scheme.
To the extent that the Lindners have pleaded breach of fiduciary duty by Marion, I am satisfied that there is no reasonable basis for the claim. While cases that involve difficult questions of law should ordinarily be left for trial, in the present circumstances I do not consider that there is any reasonable basis for the assertion that Marion owed the Lindners a fiduciary duty.
Constructive Fraud
Paragraph 27 of the second statement of claim contains an allegation that the various failings on the part of Marion, referred to at paragraph 6 above, have effected a constructive fraud on the Lindners and others to whom notice of the proposed development would have been provided under s 38 of the Act if the development had not been assigned to Category 1.
The reference to constructive fraud, as distinct from actual fraud, indicates that the Lindners are not alleging that Marion acted in a fashion specifically designed to conceal from them their rights under the Act. Counsel confirmed in his submissions that this is the intended meaning of the statement of claim.
Counsel for the Lindners submitted that the concept of fraud in equity is much broader than at common law. He referred to the statement by Lord Denning MR that “it has long been settled that ‘fraud’ in this context does not necessarily involve any moral turpitude”.[25] Counsel further submitted that concealment of a right of action is sufficient to constitute fraud even though no active steps have been taken to conceal the position. It is not necessary that there be a dishonest motive. It is sufficient that the plaintiffs have been kept out of the knowledge of their right of action. Thus, the alleged error in the categorisation of the development that led to the Lindners not being informed about their rights under the Act constituted fraud.
[25] Archer v Moss [1971] 1 QB 406.
Counsel relied upon two English authorities. The first was the decision of the Court of Appeal in Kitchen v Royal Air Force Association,[26] where the question was whether the actions of a firm of solicitors had amounted to concealment by fraud of a right of action for the purposes of the Limitation Act 1939 (UK). The plaintiff had consulted a firm of solicitors about the accidental death of her husband. The solicitors investigated the matter but did not institute proceedings before the time limit expired. They then persuaded the tortfeasor to make an ex gratia payment to the defendant charity on condition that the money would be used for the benefit of the plaintiff without her being informed of the source of the funds. The solicitor’s costs were deducted from the agreed ex gratia payment. She later discovered what had occurred and sued the solicitors for negligence. They relied upon the limitation period. Her response was that because there was fraud the time limit had not expired.
[26] [1958] 1 WLR 563.
The Court of Appeal held that the negligent failure by the solicitors to inform the widow of her possible claim did not constitute a concealment of her right of action by “fraud”.[27] However, the concealment from her of the offer to make an ex gratia payment following negotiation with the tortfeasor did constitute “fraud” within the meaning of the Limitation Act. No degree of moral turpitude was necessary to establish fraud for that purpose. While the statutory reference to “fraud” did not require proof of deceit, it encompassed conduct that, having regard to the relationship between the parties, was unconscionable.
[27] Ibid, Lord Evershed MR at 246, Parker LJ at 251–252 and Sellers LJ at 253.
The second English case relied upon by counsel was King v Victor Parsons & Co.[28] The issue was, once again, whether a right of action had been concealed by fraud for the purposes of the Limitation Act. The defendant built a house on land that had been used as a rubbish dump and was unsuitable for building. The Court of Appeal found that the defendant had actual knowledge that the site was unsuitable for building. The failure to disclose that known fact to the plaintiff when he purchased the house amounted to concealment of his right of action by fraud. Megaw LJ also noted that, if it had been the case that the defendant ought to have known, but did not know, of facts that would have given the plaintiff a right of action, that would not have established concealment by fraud.[29] The other two members of the Court of Appeal did not consider the point and simply relied upon the actual concealment from the plaintiff by the defendant of the known problems with the building.
[28] [1973] 1 All ER 206.
[29] Ibid at 212.
Counsel did not refer to any other authority in support of his submission that the alleged failure by Marion to consider the application properly, with the result that the Lindners were not informed about their notice and appeal rights, may be a constructive fraud even though it has not been alleged that there was any intentional concealment of rights.
The submission that equitable fraud may be established where there has not been an intentional concealment of rights is not supported by the findings of the Court of Appeal in the English cases relied upon by counsel. In Kitchen the Court of Appeal expressly held that the negligent failure to inform the plaintiff of her possible claim did not constitute equitable fraud, even in the context of the fiduciary relationship between solicitor and client. The obiter dictum of Megaw LJ in King v Victor Parsons & Co that actual knowledge of the defect in the building would be required to establish fraud was to the same effect.

I have found that there was not a fiduciary relationship between Marion and the Lindners. The Lindners have also not alleged that Marion acted intentionally to conceal from them their rights under the Act. The two English cases relied upon by counsel do not support his submissions. In that light, and in the absence of any other authority, I find that there is no reasonable basis for the claim of constructive fraud pleaded against Marion.
Breach of statutory duty
The Lindners assert that the matters alleged at paragraph 6 above give rise to a private right of action for breach of statutory duty. The correctness of that proposition depends upon a proper construction of the Act. Before considering that question it is necessary first to state the elements of the tort of breach of statutory duty.
The elements were set out in Byrne v Australian Airlines Ltd by Brennan CJ, Dawson and Toohey JJ as follows:[30]
A cause of action for damages for breach of statutory duty arises where a statute which imposes an obligation for the protection or benefit of a particular class of persons, is upon its proper construction, intended to provide a ground of civil liability when the breach of the obligation causes injury or damage of a kind against which the statute was designed to afford protection. The question is one of the construction of the statute, although as Dixon J pointed out in O'Connor v S P Bray Ltd, an examination of the statute “will rarely yield a necessary implication positively giving a civil remedy”.
[30] (1995) 185 CLR 410 at 424.
The Lindners have submitted that Marion was under a duty to act properly to protect their rights under the Act. The alleged denial of those rights was a direct cause of particular damage to them. The further submission is that the rights to confer and to make representations in relation to Category 3 developments (and more so with Category 2 developments) apply for the benefit of a particular and limited class of persons. Because the Lindners are within that particular and limited class they may sue Marion for breach of the statutory duty owed to them.
Marion submitted that it was appropriate for the question as to whether or not the Act conferred a private right in tort to be decided now rather than left to a trial judge. Counsel submitted that the decision simply involved a question of statutory construction and could be decided on the limited facts available without the need for the further findings of fact that might be made at trial.
The existence of a statutory remedy, such as a right of appeal, is a strong indication that the performance of a statutory duty may not be enforced by any other means, including proceedings in tort.[31] However, the existence of an appeal right is not conclusive.[32]
[31] Josephson v Walker (1914) 18 CLR 691; Byrne v Australian Airlines (1995) 185 CLR 410, Brennan CJ, Dawson and Toohey JJ at 424–426; McHugh and Gummow JJ at 461.
[32] Grand Central Car Park v Tivoli Freeholders [1969] VR 62.
Whether or not planning legislation conferred a private right of action was considered by the Full Court of the Supreme Court of New South Wales in Miller & Croak Pty Ltd v Auburn Municipal Council.[33] The Full Court noted that the relevant legislation conferred a right of appeal to the Land and Valuation Court against the decision of a council. The Act also conferred a right to claim compensation against a council if expenditure was rendered abortive by the revocation or modification of planning approval. However, the Full Court did not rely on the latter provision in reaching its conclusion that the powers and duties of a council under planning legislation were conferred for the benefit of the public generally and not for the benefit of individuals or particular classes of individuals. The same conclusion has been reached in Victoria,[34] New Zealand[35] and England.[36]
[33] [1960] SR (NSW) 398.
[34] Grand Central Car Park Pty Ltd v Tivoli Freeholders [1969] VR 62.
[35] Attorney-General v Birkenhead Borough [1968] NZLR 383.
[36] Buxton v Minister of Housing and Local Government [1961] 1 QB 278.
While the detail differs substantially between jurisdictions, the broad approach in planning legislation is to the same effect. I have referred at paragraph 42 above to the objects of the Act. The clear thrust of those objects is that planning authorities are to administer a planning scheme so as to advance the public interest by ensuring orderly development in the best interest of the community overall. That will not infrequently require authorities to approve or reject applications that a developer or adjacent landowner, and others, may strongly support or oppose. Significant investment may be at stake for both applicants and opponents. The Act confers rights of appeal to the ERD Court, including a right to seek review of the category to which a proposed development is assigned. There is nothing in the Act which suggests that the conferral of a private right of action was intended contrary to the finding in other Australian jurisdictions, New Zealand and England.
In my view the powers and duties of a planning authority under the Act were conferred for the benefit of the public generally and not for the benefit of individuals or classes of individual. I therefore find that there is no reasonable basis for the claim of breach of statutory duty pleaded against Marion.
Nuisance
The Lindners allege at paragraph 25 of the statement of claim that the grant of planning approval by Marion has caused a nuisance to be created and has thereby caused damage to them and other residents in the immediate vicinity by lowering the amenity of the area. They allege that the development has created excessive glare due to its light reflective surface and size.
The Lindners also allege that the proposed development is massive in size and appearance and out of character with housing in the locality. As it lacks on-street car parking it has caused a traffic hazard. Mrs Lindner is said to have suffered a psychological injury, namely chronic adjustment disorder, as a result of the development and the long standing legal dispute.
The tort of private nuisance most commonly occurs when an occupier of land does something on that land which interferes in an unreasonable and substantial way with the use and enjoyment of neighbouring land. However, liability is not limited to activities undertaken by landowners. A landowner may be vicariously liable for actions that are the natural and ordinary consequence of work that an independent contractor has been engaged to perform.[37] Similarly, an occupier who hires out premises for a purpose that involves a special danger of nuisance is liable for any nuisance committed by the hirer in carrying out that purpose.[38] A person who has entered land as a licensee may also be found liable.[39] It is not always necessary that a nuisance has emanated from land that the defendant occupies or controls. For example, where access to the plaintiff’s land is impeded by a picket line[40] or by a large crowd attracted to the vicinity,[41] the defendant is liable because their actions have caused an unreasonable interference with the use and enjoyment of the plaintiff’s land.
[37] Torette House v Berkman (1940) 62 CLR 637.
[38] De Jagerv Payneham and Magill Lodges Hall Inc (1984) 36 SASR 498.
[39] Fennell v Robson Excavations [1977] 2 NSWLR 486.
[40] Bird v O’Neal [1960] AC 907; Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383, Murphy J at 390.
[41] [1973] 1 All ER 206.
It was held in Bank of New Zealand v Kilvert that excessive reflected light may be a private nuisance.[42] In Kent v Cavanagh Fox J did not exclude the possibility that the construction of a building that was unsightly or unduly prominent might be a nuisance.[43] On the other hand, in Bathurst City Council v Saban (No 2) Young J held that “unsightliness alone does not constitute a nuisance”.[44] I also accept that the alleged parking difficulties might possibly be a nuisance on the basis that access to the Lindner’s land is unreasonably restricted. In this light I would ordinarily accept that there is a reasonable basis for the allegation of nuisance and that this element of the claim should be left to a trial judge to decide. However, the Lindners have not instituted proceedings against their neighbours for creating the alleged nuisance but have instead sued Marion as the relevant planning authority.
[42] [1984] 1 NZLR 525.
[43] (1973) 1 ACTR 43.
[44] (1986) 58 LGRA 201 at 206.
Thus, the question is whether Marion could be found liable for nuisance on the basis that the planning approval it gave under the Act for the construction of the buildings has caused unreasonable interference with the use and enjoyment of the Lindner’s land. I assume for the purpose of the present application that the planning approval specifically authorised each of the matters that the Lindners allege to have caused them harm, eg the size and design of the buildings, their reflectivity, the parking arrangements and so forth.
The potential liability of a local council for a nuisance emanating from land that it did not occupy was considered by Olsson J in Casley-Smith v FS Evans & Sons Pty Ltd (No 5).[45] At issue was liability for the first Ash Wednesday bushfire in the Adelaide Hills in 1980. FS Evans & Sons conducted a rubbish dump on its land. The bushfire had been caused by the burning of rubbish at the dump. The local council had encouraged ratepayers to deposit flammable material at the dump in circumstances where that would inevitably create a nuisance. Olsson J held that:
In my opinion the authorities and text writers stop somewhat short of establishing an arguable proposition that a mere exhortation by the council to ratepayers to dump flammable material, in circumstances in which the dumping would inevitably create a nuisance, results in the council, itself, being guilty of nuisance. The essential basis of non-occupier nuisance is that the situation of nuisance relied upon must have been the product of some form of direct control or activity which created the nuisance. Mere indirect encouragement and exhortation is not enough.
(emphasis in original)
[45] (1989) ATR 80-227; (1988) 67 LGRA 108 at 141.
It might possibly be contended that the reference by Olsson J to a non-occupier potentially being liable if the nuisance is the product of its direct control would support a potential finding against Marion on the basis that the offending building could not have been constructed without its approval.
In my opinion, when read in context, the remark of Olsson J in Casley‑Smith (No5) was directed at a situation where a council had a more direct and active involvement in the performance of the impugned action than merely granting planning permission. The two examples I have given at paragraph 67 above (ie establishment of a picket line or the attraction of large crowd so as to restrict access to the plaintiff’s land) illustrate the type of direct and active involvement in the impugned action that is required to attract liability in nuisance against a non-occupier.
While Casley-Smith (No5) was decided by a single judge of this Court and I am not bound by it I respectfully agree with the analysis by Olsson J. In the context of determining whether liability for nuisance could possibly be found, I cannot distinguish an exhortation by a council to dump flammable rubbish from the decision of a council to grant planning permission. In both situations the council does not have the close involvement in carrying out the action that is said to have caused the nuisance that is required to impose liability.
There have been many cases where proceedings for nuisance were defended with a plea that the impugned activity was authorised by or under statute.[46] A defence of statutory authorisation may succeed if the nuisance was the inevitable consequence of the approval given to perform the impugned action. However, the plea will fail if the approved activity could have been carried out in a manner that did not cause a nuisance.[47] A defence of statutory authorisation might possibly be available to the owners of the land upon which the development has occurred but it has not been advanced by Marion and nor would it be relevant to its role in the matter. Nevertheless, I have referred to this issue as it is the most likely context for liability to have been attached to a body that granted approval to carry out an action that resulted in a nuisance. As far as I have been able to establish, in no case where a defence of statutory authorisation succeeded has the authorising body been held liable for the nuisance. There is no authority to support the contention that a planning authority can be held liable.
[46] See eg Nielsenv Brisbane Tramways Co Ltd (1912) 14 CLR 354; Allen v Gulf Oil Refining [1981] AC 1001.
[47] Benning v Wong (1969) 122 CLR 249.
A finding that a regulatory body could be liable for a nuisance arising from actions that it had authorised in the exercise of its discretionary statutory powers would have far reaching consequences for public administration. The imposition of liability in those circumstances would be contrary to the principles of the law of nuisance as it has developed over a great many years. The law provides other remedies to address an invalid or wrongful exercise of statutory powers by a public authority. I refer primarily to the appeal and review provisions in the Act and the right to seek judicial review, but I also note the possibility of pursuing other tortious actions in an appropriate case, eg negligence or misfeasance in public office.
Counsel for the Lindners has submitted that the novelty of a legal argument does not require it to be summarily dismissed. That proposition has limits and does not require that every legal argument devised by ingenious counsel must be allowed to go to trial. In my view, the limit is reached when an argument goes beyond the scope of well-recognised legal principles.
I consider the claim that Marion is liable for nuisance to be well outside the scope of the tort. On that basis I consider that I should decide the question rather than leave the matter to a trial judge. I find that there is no reasonable basis for the claim of nuisance against Marion.
Conspiracy
The Lindners have alleged at paragraph 26 of the second statement of claim that Marion has aided and abetted the developer and the applicant to defraud them and others to whom notice should have been given, or alternatively, has engaged in a conspiracy to that end. The particulars provided are that Marion accepted non-compliant plans and granted development plan consent for buildings that had been wrongly characterised. Counsel informed the Court that paragraph 26 was intended to refer to the tort of conspiracy.
Counsel for the Lindners made clear in his submissions that it was not being alleged that Marion or its officers had acted corruptly, eg by accepting a bribe. Counsel explained the basis for this allegation as follows:
What it is, is being working with a developer which has caused the council or the relevant officer to overlook his proper function. If he were too enthusiastic to get this development up and running that you don’t bother to stand back and properly assess it and the developer puts to you, you have got this in effect joint venture going on, it is a conspiracy.
The tort of conspiracy may be committed by lawful means or by unlawful means. An act will be unlawful for this purpose if it involves a crime, another tort (ie one apart from the conspiracy), a breach of contract or a breach of a statutory provision.[48] An action may be unlawful in this context even though it is not otherwise actionable by the plaintiff.[49]
[48] See Barker et al, The Law of Torts in Australia (Oxford University Press, 5^th ed, 2012) at 286 and the cases cited therein.
[49] Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] ATPR 42-013; [2004] FCAFC 169.
The elements of the tort of conspiracy have been summarised by Barker et al in The Law of Torts in Australia (Oxford University Press, 5^th ed, 2012) as follows:[50]
(1)    There must be a combination of parties who have an agreement, expression implied to act for a common purpose or design.
(2)    That agreement must have been implemented – that is, at least one overt act must have been committed in pursuance of the agreement. Although overt acts are frequently positive acts, they need not be: it is sufficient that they are open, manifest and public. A “conspiracy of silence” is therefore possible, provided all the other elements of the action are present.
(3)    Intention to harm P must be proven. The content of this, third requirement differs between between the two forms of the tort and is easier to satisfy where unlawful means have been used. In either case, however, the intention must be shared by all of the alleged conspirators.
(4)    The plaintiff must have suffered damage in the form of economic loss. Where unlawful means are alleged, the loss must also have been caused by those unlawful means. By contrast, in cases of lawful means conspiracy, all that is required is that the loss be caused by the execution of the agreement to harm P.
[50] At 283.
As I have already noted, an intention to cause harm to the plaintiff is an element of the tort of conspiracy. It is sufficient that one of the shared purposes of the conspirators is to cause the plaintiff harm through their unlawful conduct. It is not necessary that this harm be the predominant or main purpose.[51] It is not sufficient to merely establish that the conduct of the conspirators would necessarily cause harm to the plaintiff nor does it suffice that it was reasonably contemplated that the plaintiff was likely to suffer.[52]
[51] Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173; Barker et al The Law of Torts in Australia (Oxford University Press, 5^th ed, 2012) at 288; Balkin and Davis, Law of Torts (LexisNexis Butterworths, 5^th ed, 2013) at 637.
[52] Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 at 189.
While the second statement of claim did not clarify the point, it is apparent from the explanation provided in the submissions of counsel that it is not being alleged that Marion (or its officers) conspired with the applicant to cause harm to the Lindners. An allegation that Marion had conspired with the developer to deal with the application in a manner that ensured that it would not face objections or appeals cannot establish the intention to cause harm to the Lindners that is necessary to make out the tort.
Aiding and abetting fraud
The allegation that Marion has aided and abetted fraud is included at paragraph 26 of the second statement of claim together with the allegation of conspiracy. As I have found that there is no basis for the allegation of equitable fraud, that is also the case with respect to the allegation that there has been an aiding and abetting of a fraud.
Fraud on a power
The Lindners have alleged at paragraph 28 of the second statement of claim that the actions of the council constitute a fraud on a power. No particulars were provided in support of that allegation.
The allegation that there has been a fraud on a power is apparently linked to the allegation that Marion is under a fiduciary duty to the Lindners. This contention is apparently based upon the suggestion by Higgins J in Criterion Theatres that the advice of the Privy Council in Campbell must be explained on the basis that the latter case involved a fraud on a power.[53] I have already indicated that in Australia councils do not owe individual ratepayers a fiduciary duty and that the decisions in Campbell and in Criterion Theatres were based upon the use of a statutory power for an improper purpose in the administrative law sense. I therefore conclude that there is no basis in law for the allegation that Marion has committed a fraud on a power.
[53] See discussion at paragraph 32 above.
Conclusion

While the power of the Court to award summary judgment should not be lightly exercised, I have found that there is no reasonable basis for any of the causes of action relied upon by Mr and Mrs Lindner in their second statement of claim. My conclusions are based upon well-established legal principles rather than matters of fact or uncertain law that might be better left to a trial judge.
Summary judgment should be entered in favour of the Corporation of the City of Marion. I will hear the parties as to costs.