Lismore City Council v Gurpal Kaur Singh

[2021] NSWLEC 49

Land and Environment Court

New South Wales

Medium Neutral Citation:

Lismore City Council v Gurpal Kaur Singh [2021] NSWLEC 49

Hearing dates:

12 and 13 April 2021

Date of orders:

24 May 2021

Decision date:

24 May 2021

Jurisdiction:

Class 4

Before:

Duggan J

Decision:

See paragraphs 46 to 48

Catchwords:

LOCAL GOVERNMENT – s 59A Local Government Act – Council works – sewerage work – whether new works are to “replace” existing works for s 59A(2) – construction of s 59A – proposed works are new works

Legislation Cited:

Conveyancing Act 1900

Lismore Local Environmental Plan 2012

Local Government Act 1993

Local Government Amendment (Miscellaneous) Bill 2002

Uniform Civil Procedure Rules 2005

Cases Cited:

R & R Fazzolari Pty Ltd v Parramatta City Council; Mac’s Pty Ltd v Parramatta City Council (2009) 237 CLR 603

Texts Cited:

Macquarie Dictionary

Category:

Principal judgment

Parties:

Lismore City Council (Applicant)
Gurpal Kaur Singh (Respondent)

Representation:

Counsel:
Ms F Berglund (Applicant)
Mr D Singh, agent (Respondent)

Solicitors:
McCartney Young Lawyers (Applicant)
Not applicable

File Number(s):

2020/275364

Publication restriction:

No

Judgment

Nature of proceedings

1. By summons dated 22 September 2020, Lismore City Council (the Council) commenced civil enforcement proceedings under s 673 of the Local Government Act1993 (LG Act) seeking orders and declarations relating to its intention to carry out works at Lot 21 in Deposited Plan 561152, 4 Zambelli Drive, East Lismore (the Property) relating to the sewer servicing the Property and adjacent lands.

2. The works which were proposed to be undertaken were said to involve (the Proposed Works):

1. The decommissioning of the existing sewer line which runs in a north-south direction through the backyards of 2, 4 and 6 Zambelli Drive, but leaving the decommissioned pipe in situ (the Existing Pipe);

2. The installation of a new sewer pipe to the west of the Existing Pipe which would convey sewerage. Such pipe was to be installed without opening the surface of the land by a process of below surface directional drilling (the New Pipe); and

3. The opening of the surface of the land to provide a connection between the residence and the New Pipe (and rectification upon completion).

3. The Proposed Works are illustrated in Figure 1 below with the Property being the middle lot of the three lots illustrated, the Existing Pipe shown in the smaller dashes and the New Pipe shown in the longer dashes:

Figure 1 – Site Plan of Existing Pipe and the Proposed Works

4. Mrs Gurpal Kaur Singh, the owner of the Property (the Respondent) has refused the Council permission to access the Property to undertake the Proposed Works. The Respondent was represented in these proceedings, and in dealings with the Council relating to the Proposed Works, by her son, Mr Singh.

Background facts

5. The Property is zoned “R1 General Residential” under the Lismore Local Environmental Plan 2012. It is improved by a two-storey brick dwelling where the Respondent resides with her son.

6. On or about 5 June 2020, the Council attended the Property to inform the Respondent about the Proposed Works and seek her consent, which was denied.

7. The Council left a notice addressed to the landowners and residents of 2, 4 and 6 Zambelli Drive informing them of its intention to undertake what was referred to as sewer renewal works, describing the Proposed Works and advising that the Council’s contract building inspector would contact the recipient to arrange a building inspection prior to starting the work. The notice attached a plan which illustrated the Proposed Works.

8. The Existing Pipe is made of vitrified clay. It was installed in the 1970’s by the developer of the subdivision of which the Property and the adjoining properties formed part. The Council has, since some unidentified time in the past, taken control of the Existing Pipe and broader sewer infrastructure servicing the Property. The Council contends that the Existing Pipe has ceased to function efficiently due to a change in the fall of the pipe due to subsidence or design issues. As a consequence, the Existing Pipe is not clearing and blockages, inefficiencies in discharge, and odour issues have resulted. The Council has introduced regular maintenance of the pipe by clearing it by water pressure from time to time. The Council contended that such maintenance is required due to the condition of the Existing Pipe and is in excess of normal maintenance requirements. The Respondent disputed whether this is in fact the case.

9. The Council proposes to decommission the Existing Pipe by plugging the pipe at each end where it currently connects to the broader sewer infrastructure with concrete.

10. The New Pipe will be located to the west of the Existing Pipe at its south end and will converge with the location of the Existing Pipe at its north end. It will be installed by digging pits in the backyards of 2 and 6 Zambelli Drive, boring by underground directional drilling and installing polyethylene piping. A small trench will be dug in the backyards of 2, 4 and 6 to connect each house to the New Pipe. The New Pipe will range in depth below the surface of the land in the order of 1 to 2 metres. The Council agreed in the course of proceedings that the New Pipe would, if required by the Court, have a 180mm diameter.

11. A new manhole is proposed for 6 Zambelli Drive and two inspection openings are proposed for 2 Zambelli Drive. The existing maintenance hole at the north end will be removed and reconstructed to suit the new alignment and piping.

12. The Proposed Works were scheduled to commence on 15 June 2020 and to take three weeks to complete.

13. The residents of 2 and 6 Zambelli Drive signed a “Consent to Enter” declaration providing the Council, “its servants, agents, workmen, contractors and surveyors, permission to enter upon and occupy the said land with all necessary equipment, plant, vehicles and materials and thereon to carry out surveys and construct all works necessary or incidental” to the Proposed Works in June 2020.

14. On 28 August 2020, the Respondent sent a letter to the Council making complaints about past instances of “jetting” (high pressure water cleaning) of the Existing Pipe by the Council and objecting to the Proposed Works.

15. The Council commenced proceedings on 22 September 2020.

Issues for determination

16. The Council filed a list of real issues for determination which identified the following questions as those necessary for a determination of this matter:

1    Whether the sewerage infrastructure (Infrastructure) located at the rear of the property are council works within the meaning of section 59A(2) of the Local Government Act 1993 (LGA);

2   Whether the part of the property in which the Infrastructure is located is being used for residential purposes within the meaning of section 200 of the LGA;

3   Whether the Respondent is in breach of the section 191A of the LGA in preventing the Applicant from accessing the property to carry out activities on or in connection with the Infrastructure pursuant to section 59A(2) of the LGA; and

4   In circumstances where the Court finds that the Respondent is in breach of the LGA, what relief should be granted to the Applicant.

17. The Respondent accepted that such questions arose but contended that as a preliminary matter the Council was required to establish that the Proposed Works fell within a proper construction of s 59A in that:

1. The Proposed Works, in so far as it is proposed that a New Pipe be laid in a different location, cannot be characterised to fall within “operate, repair, replace, maintain, remove, extend, expand, connect, disconnect, improve” Council works as it is a New Pipe with the Existing Pipe remaining; and/or

2. The state of the Existing Pipe is not such that it is no longer efficient, such that the Proposed Works are not necessary or appropriate… to ensure that, in the opinion of the Council, the works are used in an efficient manner for the purposes for which the works were installed.

18. It was contended by the Respondent that absent being satisfied of either of these particular matters the Council had no power to carry out the works and, accordingly, would not be entitled to any of the orders sought.

19. Counsel for the Council accepted that the issues raised by the Respondent were issues that went to the power of Council to carry out the works and were relevant issues for consideration. If the Proposed Works were not works empowered by s 59A of the LG Act the issues identified by the Council would not arise for determination.

20. The Council only relies upon s 59A(2) of the LG Act as the source of power to enable it to carry out the Proposed Works. It relies upon s 191A and s 200 of the LG Act to assert a right of access to carry out the Proposed Works.

21. Accordingly, as no other source of power is relied upon, it is essential for the Court to be satisfied that the Council has the power to carry out the Proposed Works. Absent such power, the declarations and orders sought by the Council would have no utility which was accepted by the Council. Therefore, it is appropriate that the issue relating to the characterisation of the Proposed Works by reference to s 59A(2) should be determined first.

Are the Proposed Works capable of being characterised as works to “operate, repair, replace, maintain, remove, extend, expand, connect, disconnect, [or] improve” its works?

22. Section 59A of the LG Act provides:

59A   Ownership of water supply, sewerage and stormwater drainage works

(1)   Subject to this Division, a council is the owner of all works of water supply, sewerage and stormwater drainage installed in or on land by the council (whether or not the land is owned by the council).

(2)   A council may operate, repair, replace, maintain, remove, extend, expand, connect, disconnect, improve or do any other things that are necessary or appropriate to any of its works to ensure that, in the opinion of the council, the works are used in an efficient manner for the purposes for which the works were installed.

(3) The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900.

23. None of the terms used in s 59A(2) are defined by the Dictionary to the LG Act, however, “sewerage work” is defined in the Dictionary to the LG Act as:

sewerage work means the construction, alteration, extension, disconnection, removal, ventilation, flushing, cleansing, maintenance, repair, renewal or clearing of any sewerage service pipes or fittings or fixtures communicating or intended to communicate, directly and indirectly, with—

(a) a septic tank, an effluent or a sullage disposal system, or

(b) any sewer of a council,

and includes work of sanitary plumbing and work of house drainage.

24. In light of the findings I make below it is not necessary that I determine whether, on a proper construction of the provisions of the LG Act and the facts relating to it, the Existing Pipe is “Council works”. It is sufficient to dispose of this question on the assumption that the Existing Pipe is works that are owned by the Council and would relevantly be described as sewerage works. I will proceed on this assumption but will not make any findings on this underlying assumption.

Council’s submissions

25. The Council submitted that the Proposed Works should be characterised as works to “replace” its works. It did not rely on any of the other nominated descriptors available as set out in s 59A of the LG Act.

26. The Council’s submission relied, in part, upon the ordinary meaning of the term “replace” as indicated by reference to the dictionary definition in the Macquarie Dictionary, that provided:

verb (t)

1. to fill or take the place of; substitute for (a person or thing)…

2. to provide a substitute or equivalent in the place of…

…

4. to restore to a former or the proper place…

27. The Council submitted that the appropriate construction of the legislative provision was to construe s 59A(2) as a reference to the operational characteristics of the sewerage system and the pipes as part of that broader whole, rather than focussing on the physical manifestation of a part or parts of that whole. On that basis, by the decommissioning of the Existing Pipe the Proposed Works would be characterised as a replacement of the sewerage system and its capacity to operate as the means by which sewerage is conveyed off the Property and adjoining lands.

28. The Council also accepted that as a rule of statutory construction the reference in s 59A as immediately following the listed descriptors “…to do any other things that are necessary or appropriate…” should be read in the context of such “other things” as being of a type or class of matters indicated but not listed in the words preceding this phrase in the section. It did not identify any other appropriate descriptor that would fall within this provision apart from the matters submitted with respect to the concept of “replace”.

Respondent’s submissions

29. The Respondent submitted that the Proposed Works could not be said to “replace” the Council’s work (being the Existing Pipe) as the Existing Pipe would remain and be decommissioned and the New Pipe would be laid in a completely different location to the alignment of the Existing Pipe.

Findings as to whether the Proposed Works are to be characterised as a replacement

30. The meaning to be given to a statutory provision is to be derived from its text and context with a meaning that best achieves the object or purpose of the legislative provision to be preferred.

31. Starting firstly with the text, it is to be observed that s 59A(2) provides a list of the types of things that Council can do “to any of its works” to achieve the stated purpose of ensuring that those works are used in an efficient manner for the purposes for which the works were installed. Textually, the section is dealing with a work that exists at the time any of the listed things are to be undertaken and those listed things can be done on those presently existing works. That is, the section is limiting the Council’s power to acting on something that presently exists.

32. This textual limitation is reinforced by the nature of the listed actions referred to in the section. With the exception perhaps of the term “extend”, each of the listed terms relate to carrying out an action on an item which presently exists. To the extent that the term “extend” may imply the creation of something new it must still have a foundation in something in existence in order for that thing to be extended.

33. In this context if regard is then had to the ordinary meaning of the term on which the Council relies, “replace” in the Dictionary definition referenced above must be applied in this statutory context such that the definition is applicable to the extent that it is referring to the replacement of something that is already in existence.

34. In considering the broader context of s 59A the section makes three particular provisions:

1. Section 59A(1) has the effect of deeming certain work installed by the Council as being owned by Council even, if the land on which those works are situated is not owned by Council;

2. Section 59A(2) makes provision for the action to those works as identified above; and

3. Section 59A(3) provides that the two preceding parts of the section have effect despite anything contained in s 42 of the Conveyancing Act 1900. Section 42 of the Conveyancing Act provides for the estate of a registered proprietor to be paramount except in certain nominated circumstances, unless another Act expressly provides that the paramountcy provision does not apply. Therefore, in this case s 59A operates to, in effect, provide Council with a claim on the land notwithstanding that such a claim has not been registered.

35. As to context it is also to be observed that the text of s 59A is to be found in:

1. Chapter 6 of the LG Act which deals with the service functions of the Council and provides at s 24 that:

24   Provision of goods, services and facilities and carrying out of activities

A council may provide goods, services and facilities, and carry out activities, appropriate to the current and future needs within its local community and of the wider public, subject to this Act, the regulations and any other law.

2. Part 3 of that Chapter which deals with “restraints and qualifications that apply to service functions”; and

3. Division 2 – water supply, sewerage and stormwater drainage works and facilities and is where s 59A is located.

36. In that context it can be deduced that s 59A is directed at the limitations or qualifications on a Council providing services. In that context the nature of s 59A as a constraint or qualification to the general power in s 24 is to be taken into account in determining its meaning. That is, it is to be construed as a limitation provision rather than the conferral of unconstrained rights. Such a construction is also consistent with the principle of statutory construction that a provision that operates to affect the property rights of a person is to be construed in a manner that would have the least interference in vested property rights: R & R Fazzolari Pty Limited v Parramatta City Counci; Mac’s Pty Ltd v Parramatta City Council (2009) 237 CLR 603 at [43]-[44].

37. Section 59A is also a section that was later added to the LG Act after its original commencement. One of the stated objects of the amending Bill was:

(f)   to provide that a council employee or other person authorised by a council may enter any premises to carry out water supply work, sewerage work or stormwater drainage work on or under the premises (being work that the council is authorised by the Principal Act or any other Act to carry out), ...

38. Further, the explanatory note to the Local Government Amendment (Miscellaneous) Bill 2002 which inserted s 191A into the LG Act states that:

…The proposed section provides that a council employee or other person authorised by a council may enter any premises to carry out water supply work, sewerage work or stormwater drainage work on or under the premises (being work that the council is authorised by this or any other Act to carry out)…[Section 59A] makes a related amendment to clarify that a council is the owner of all water supply, sewerage and stormwater infrastructure installed in or on land by the council (whether or not the land is owned by the council). Accordingly, the owner of the land will be prevented from interfering with that infrastructure by section 635 of the Principal Act (Damage to council property) …

39. The reference in the explanatory notes to s 191A was a reference to the insertion of a provision that related to the power of council officers to enter property – it did not confer an independent source of power for the carrying out of the works referred to in s 59A.

40. This object makes it apparent that s 59A was not intended to create a new power to carry out the installation of new infrastructure but to ensure that the ownership of existing infrastructure and its continued use by the Council was made plain in the statutory context.

41. The facts of this case are that the Existing Pipe is the work to which s 59A(2) is directed. That is, the question turns on whether the Proposed Works comprise the replacement of that Existing Pipe. It is undisputed on the evidence that the Existing Pipe is to remain in place, albeit no longer operating as a means of the conveyance of sewerage. The Proposed Works propose the introduction of a second pipe in a significantly different location on the Respondent’s Property. The end result is that the Respondent will be burdened with two pieces of infrastructure owned by the Council in two locations in the rear of her dwelling. Such cannot, on any reasonable construction of the notion of “replace”, constitute the replacement of the Existing Pipe.

42. Further, even if the Existing Pipe were to be removed, the provision of the New Pipe being in such a distinctly different location and configuration whilst it may operationally replace the Existing Pipe in that the New Pipe will convey the sewerage previously conveyed in the old pipe the subject matter of the works is significantly different. Having regard to the textual and contextual indicia derived from the statutory provisions this section is directed to the physical infrastructure and not the operational or system wide service to which the physical infrastructure is related. The terms of s 59A are not directed to the operational purposes of the works but rather the physical infrastructure once constructed for that operational purpose.

39. I also consider that if the construction proposed by the Council were accepted it could lead to inconvenient outcomes and injustices. Such a construction is to be avoided. It is apparent, on the evidence, that even though sewerage pipes are located below the surface of the land, the presence of such pipes provide a degree of constraint on what works an owner of the land can carry out proximate to such pipes. On Council’s construction the Council could, without reference to a landowner, take action that affects the use of the land. This capacity for the unilateral placement of pipes is not reflected in the statutory language, nor is it consistent with the object of the specific terms of s 59A(2).

40. For those reasons, I find that the Proposed Works are new works and do not replace the Existing Pipe on the Property. Accordingly, the Council is not authorised to carry out the Proposed Works in reliance upon s 59A of the LG Act.

41. As a consequence of the finding above, the Council cannot undertake the Proposed Works relying upon s 59A(2) as a source of power to undertake the Proposed Works. Accordingly, there being no utility in the determination of the matters raised by the Council, or in the making of any of the orders or declarations sought in light of this finding, there is no need to determine the other matters that were raised.

Conclusion and Orders

46. For the reasons outlined above, the Council’s Summons is to be dismissed.

47. The Council accepted that in the event the Summons was dismissed the Respondent would be entitled to an order for its costs in accordance with the usual order provided for in r 42.1 of the Uniform Civil Procedure Rules 2005. I will make such an order.

48. The Court Orders that:

1. The Amended Summons filed 13 April 2021 is dismissed;

2. The Applicant is ordered to pay the Respondent’s costs of the proceedings; and

3. The exhibits are returned.

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Decision last updated: 24 May 2021