Liverpool City Council v Kumaragamage P.R

[2004] NSWLEC 704

Land and Environment Court

of New South Wales

CITATION:

Liverpool City Council v Kumaragamage P.R [2004] NSWLEC 704

PARTIES:

APPLICANT
Liverpool City Council

RESPONDENT
Prabha Ranjanee Kumaragamage (also known as Prabha Ranjanee Kumaragamage-Dona)

FILE NUMBER(S):

40052 of 2003

CORAM:

Talbot J

KEY ISSUES:

Estoppel :- no estoppel against Council in enforcing planning law.
Injunctions and Declarations - declaration of validity of Building Permit issued contrary to planning instrument.

LEGISLATION CITED:

Local Government Act 1919

CASES CITED:

DATES OF HEARING:

19/04/04

EX TEMPORE
JUDGMENT DATE :

04/19/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr I J Hemmings (Barrister)
SOLICITORS
Marsdens Law Group

RESPONDENT
Mr Kumaragamage (Agent)
SOLICITORS
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

19 April 2004

40052 of 2003 Liverpool City Council v Prabha Ranjanee Kumaragamage -(also known as Prabha Ranjanee Kumaragamage-Dona)

JUDGMENT

1 Talbot J: There have been several days of evidence and argument following commencement of the proceedings by Liverpool City Council (“the Council”) on 20 January 2003. Prabha Ranjanee Kumaragamage (“the respondent”) has vigorously defended the claim by the Council that she should cease to use premises known as Lot 2 in DP 505004, 397 Hume Highway, Liverpool for the purposes of more than one dwelling.

2 There is no real issue between the parties that the premises have from time to time been used on the basis that, speaking broadly, the upstairs section and the down stairs section are occupied as separate dwellings. An interlocutory order was made on 22 July 2003 to limit that use.

3 At a late stage, Mr Kumaragamage the agent for the respondent, has produced a document which on its face is in the form of a Building Permit issued pursuant to the Local Government Act 1919 on 25 May 1976. This document has been tendered without objection.

4 The document is in the form of an owner’s copy of a Building Permit. It bears an endorsement that appears to be either the signature of, or an authorisation by the Town Clerk. The document has significant similarities to another document tendered, namely an office copy of a Building Permit dated 4 May 1976. Both documents bear the number 492/76.

5 The introductory paragraph of the document, dated 25 May 1976, refers to the fact that plans and specifications numbered 492/76 were amended on 18 May 1976. This is not a problem in respect of the capacity of the Council to issue a Building Permit in respect of those amended plans. However, paragraph (d) in the body of the document states “Building Permit No 492/76 issued on 4 May 1976 for Lot 12 is cancelled.” It is interesting to note that the cancellation relates to Lot 12, whereas the second permit was issued on 25 May 1976 in respect of alterations to an existing dwelling erected on Lot 2. The initial Building Permit, as Mr Kumaragamage rightly points out, was issued on 4 May 1976 in respect of additions comprising extending of existing brick garage to dwellings on Lot 12.

6 Notwithstanding the anomalies I have just identified, I am not prepared to find that the issue of the Building Permit on 25 May 1976, was not a valid exercise of the Council’s power solely on the ground that it purported to be an amendment, alteration or cancellation of a prior Building Permit issued in respect of the same works or even some of the works.

7 The relevant Planning Scheme Ordinance (“PSO”) is in evidence. In accordance with the terms of the PSO the land is situated in the Residential A (1) Zone. The erection of residential flat buildings on the land was prohibited. Following through the definitions of a dwelling house, a dwelling, a flat and a residential flat building it is apparent that the use of a building containing two or more dwellings is a prohibited use in the zone as a residential flat building.

8 The document, on its face is a Building Permit issued on 25 May 1976. That purports to permit the use of the underfloor area as a single dwelling and clearly states “The premises to be used as not more than two dwellings”.

9 The Council cannot in the exercise of its statutory duty, by the issue of a certificate such as a Building Permit, make legal that which is otherwise prohibited. It is in the public interest that the planning laws of the state be maintained and enforced. Accordingly, there can be no estoppel against a Council claiming that its own document, such as the Building Permit dated 25 May 1976, which asserts something that is permitted when indeed it is prohibited, is invalid.

10 I am prepared therefore to make a declaration that the Building Permit No 492/76 dated 25 May 1976, is void and of no effect.

11 That leaves the respondent in the unfortunate situation that the continued current use of the property, in particular the building on the property, Lot 2 in DP 505004, 397 Hume Highway, Liverpool is not permitted.

12 In the circumstances that the Building Permit is invalid, Mr Kumaragamage has indicated that the respondent will make no submissions in relation to the prospect of the Court making orders 3 and 4, contained in the Further Amended Application Class 4 filed on 20 October 2003. The Court proposes to make those orders. Nevertheless that is not the end to this litigation. On 29 October 2003, the respondent filed Points of Defence to an Amended Points of Claim filed on 20 October 2003, and incorporated Points of Cross-Claim in that document.

13 The Points of Cross-Claim have now been supported by a formal Cross-Claim filed in Court on 13 April 2004. Neither of the parties seek to pursue those matters today.

14 Arguments have been foreshadowed that the Court has no jurisdiction to entertain the cross-claim. There will be other arguments relating to the merit of whether or not the cross claimant, the original respondent, is entitled to damages as a consequence of the actions of the Council. It is clear to me that in order for the Cross-Claim to proceed further it will be necessary for formal directions to be made in relation to pleadings.

15 I suspect an order for costs in respect of the whole of the proceedings will be dependent on the outcome of the further stages of the proceedings in relation to the Cross-Claim. Matters may be raised in the course of those proceedings which are relevant to the proper order for costs to be raised in respect of the proceedings up to today.

16 In the circumstances it is appropriate that the question of costs be reserved.