Locke v Randwick City Council

[2004] NSWLEC 30

Land and Environment Court

of New South Wales

CITATION:

Locke and Others v Randwick City Council and Others [2004] NSWLEC 30

PARTIES:

FIRST APPLICANT
Kathryn Janette Locke

SECOND APPLICANT
Terry Cashin

THIRD APPLICANT
Marie Therese Victoria Cashin

FOURTH APPLICANT
Sue Trimble

FIRST RESPONDENT
Randwick City Council

SECOND RESPONDENT
Paul Barry

THIRD RESPONDENT
Lisa McGregor

FILE NUMBER(S):

41283 of 2003

CORAM:

Cowdroy J

KEY ISSUES:

Development Consent :- objectors misinformed by council officer of procedure for objection to development application - objectors denied hearing before council contrary to legitimate expectation - ostensible authority of council officer to make representation - whether council estopped from denying the applicants a hearing before a meeting of council.

LEGISLATION CITED:

Land and Environment Act 1979, s 69
Local Government Act 1993, s 362

CASES CITED:

Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629;
Byron Shire Council v Vaughan (No 2) (2000) 110 LGERA 424;
Darling Casino Limited v New South Wales Casino Control Authority and Others (1996-1997) 191 CLR 602;
FAI Insurance Ltd v Winneke and Others (1981-1982) 151 CLR 342;
Glowpace Pty Ltd v South Sydney City Council (2000) 111 LGERA 84;
Kanda v Government of Malaya [1962] AC 322;
Kioa and Others v West and Another (1985) 159 CLR 550;
Lever Finance Ltd v Westminister (City) London Borough Council [1971] 1 QB 222;
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597;
Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1994-1995) 183 CLR 273;
Mirvac Homes Pty Ltd v Parramatta City Council (No 3) (1999) 111 LGERA 233;
Norfolk County Council v Secretary of State for the Environment and Another (1973) 1 WLR 1400;
Pancho Properties Pty Ltd v Wingecarribee Shire Council (1999) 110 LGERA 352;
Porter and Another v Hornsby Shire Council (1989) 69 LGRA 101;
R v Liverpool Corporation; Ex parte Liverpool Taxi Fleet Operators' Association [1972] 2 QB 299;
Save the Showground for Sydney Inc v The Minister for Urban Affairs and Planning (1997) 95 LGERA 33;
Somerville v Dalby and Others (1990) 69 LGRA 422;
Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1QB 416;
The Commonwealth of Australia v Verwayen (1990) 170 CLR 394;
Wormald v Gioia (1980) 43 LGERA 101

DATES OF HEARING:

04/02/2004; 05/02/2004

DATE OF JUDGMENT:

02/20/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr A. Galasso (Barrister)

SOLICITORS
Kathryn Janette Locke (Litigant in Person)

RESPONDENT
Mr A. Thompson (Barrister)

SOLICITORS
Bowen & Gerathy

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

41283 of 2003

Cowdroy J

20 February 2004

Kathryn Janette Locke

First Applicant

Terry Cashin

Second Applicant

Marie Therese Victoria Cashin

Third Applicant

Sue Trimble

Fourth Applicant
v

Randwick City Council

First Respondent

Paul Barry

Second Respondent

Lisa McGregor

Third Respondent

Judgment

Introduction

1 The applicants seek a declaration that development consent to DA 03/00323GA (“the consent”) granted by the first respondent (“the council”) on 25 September 2003 and notified on 3 October 2003 to the second and third respondents be declared invalid.

2 The first applicant is the registered proprietor of 30 Knox Street, Clovelly. The second and third applicants are the registered proprietors of 28A Knox Street, Clovelly. The fourth applicant is the registered proprietor of 28 Knox Street, Clovelly. The second and third respondents are the registered proprietors of 35 Knox Street, Clovelly which lies generally opposite the applicants’ properties.

3 On 24 April 2003 the second and third respondents submitted development application DA 03/00323GA (“the DA”) to the council proposing certain renovations and additions to 35 Knox Street. Such proposal would have resulted in the roof line of their existing dwelling being raised which would have resulted in obstruction of the views enjoyed from each of the applicants’ properties.

4 A council officer, Ms Rachel Aitken, was nominated as the contact officer in respect of the development application. By letter dated 2 May 2003 the council wrote to the objectors relevantly stating:-

If you require any further information in relation to this application, please contact Rachel Aitken ([telephone number]) between 9:00a.m. to 12:00noon, Monday to Friday only.

5 The second and third respondents amended the DA and by letter dated 26 August 2003 the council gave notification of the amended proposal to the applicants (“the letter”). The letter contained the same statement identifying Ms Aitken as the relevant contact in the council.

6 As a result of the letter and a subsequent arrangement, Ms Aitken met the first, second and fourth named applicants at their properties on 8 September 2003. During such meeting the applicants expressed their objections to the DA.

7 At that meeting Ms Locke, the first applicant, made an inquiry concerning the operation of the development approval process of the council. Ms Locke remembers Ms Aitken responding that her report could be “signed off by my boss”. Ms Locke assumed from such response that Ms Aitken would prepare a report of her assessment of the DA and that such report would be submitted to her manager for approval and signature.

8 Ms Aitken recalls Ms Locke asking:-

What is the process from here?

Ms Aitken remembers responding:-

I have to finalise my assessment. It can be signed off by my manager.

9 A conversation ensued in which Ms Locke asked Ms Aitken:-

What is the process if we are not happy with the decision of the Council.

Ms Locke recalls the answer of Ms Aitken as follows:-

If you are not happy with the decision, you can approach 3 councillors, or one councillor with 2 mates, and go to them with your grievances. A Council meeting is then called to review the Council’s decision. At that meeting one person speaks for, and one person speaks against, the Development Application.

Ms Aitken recalls Ms Locke asking:-

What’s the process if we are not happy with the decision?

Ms Aitken recalls responding:-

If you’re not happy, you can approach three councilors [sic] or one councilor [sic] with two mates and go to them with your grievances. The application may then be considered at a Council meeting. At that meeting one person speaks for and one person speaks against the development application.
Ms Locke then recalls asking:-

What about going to the Land & Environment Court?

Ms Aitken agrees that such conversation occurred and that she responded:-

The applicant can appeal to the Land and Environment Court if the application is refused. There’s nothing you can do unless procedures have not been followed, for example, notification letters not being sent out.

10 Ms Locke sent an email to Ms Aitken on 9 September 2003 seeking further information and by an email on 15 September 2003 Ms Aitken provided various sketches depicting the impact of the upper level addition proposed by the DA. Ms Aitken also advised that she was willing to accept any further submissions until 5pm Friday 19 September 2003. Joint submissions were then made by the applicants by the due date.

11 On 24 September 2003 Ms Aitken submitted a “Delegated Report” dated that day to her manager, namely Ms Larissa Ozog. The report included consideration of the joint submissions, and recommended approval of the DA.

12 On 25 September 2003 Ms Ozog considered the “Delegated Report” and determined the DA by granting consent, subject to conditions. On 2 October 2003 the applicants received letters dated 29 September 2003 from the council advising of the determination of the DA.

13 It is an agreed fact that between the date of completion of the assessment by Ms Aitken and the determination of the DA, no communication took place between the applicants and the council. It is also agreed that Ms Ozog held a delegation from the council to approve development applications in respect of projects involving expenditure of up to $2 million.

14 It is also agreed that the council’s “Code of Meeting Practice” made provision for the calling of the meeting by three councillors, the relevant portions of which are contained in cl 11(3)(i) which relevantly provides:-

Requested Items – Committee & Council Meetings.
(i) That Councillors requesting that an item, which is to be dealt with under delegated authority, be brought to Council for consideration, do so in writing, signed by at least three (3) Councillors, to the General Manager, OR items, which are to be dealt with under delegation, and which have not been the subject of a request to be brought before Council by at least three (3) Councillors, and for which the General Manager considers that compelling exception circumstances exist, he may bring such matters before Council. (310/1996-26/11)

Applicants’ submissions

15 The applicants submit that they were led to believe by Ms Aitken that they had two opportunities in which to make submissions to the council. The first opportunity was provided whilst Ms Aitken was preparing her report. The second opportunity became available if the applicants were not satisfied by the decision made by Ms Aitken’s manager. In the latter event, the applicants believed from Ms Aitken’s statement that they could approach “three councillors or one councillor with two mates” to have the decision of Ms Aitken’s manager brought before a meeting of the elected members of the council. This procedure is referred to hereafter as “calling in” the DA.

16 Additionally the applicants’ submit that Ms Aitken failed to inform them that her manager Ms Ozog held delegated authority from council to approve development applications. Additionally they were not told that unless the DA was “called in” by three councillors for determination at a councillor meeting before a decision was made by Ms Ozog, the DA would be determined under delegated authority. If that occurred, no review of that determination would then be available to the applicants. The applicants claim that they relied upon the representation of Ms Aitken to their detriment, since in the events which have happened there was no opportunity for the applicants to have the DA considered at a meeting of council.

17 The applicants submit that Ms Aitken held actual authority, or ostensible authority of the council, to answer the questions proposed by the first applicant. The applicants submit that they held a legitimate expectation from the information provided by Ms Aitken that they would have an opportunity to make further submissions after her report was “signed off”. The applicants also claim that they held a legitimate expectation of being informed accurately of the decision making process and of the relevant steps to be taken to invoke those procedures. The applicants claim that if the respondent proposed to make a decision inconsistent with that expectation, procedural fairness required that an opportunity be provided to them to be heard against the making of that decision. The applicants rely upon the principles referred to in Save the Showground for Sydney Inc v The Minister for Urban Affairs and Planning (1997) 95 LGERA 33.

18 The applicants also submit that they held the expectation that they would have the opportunity to raise their submissions at a meeting before the council if they were dissatisfied with the council officers’ decision and that the council departed from that course which has resulted in a denial of procedural fairness in the decision making process as considered in Somerville v Dalby and Others (1990) 69 LGRA 422 at 427; Glowpace Pty Ltd v South Sydney City Council (2000) 111 LGERA 84. They submit that council’s conduct warrants the impugning of the decision: Darling Casino Limited v New South Wales Casino Control Authority and Others (1996-1997) 191 CLR 602; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.

19 Alternatively, based upon the representation of Ms Aitken, the applicants submit that the council is estopped from denying the process described in the representation. The applicants rely upon the principles of estoppel referred to in Mirvac Homes Pty Ltd v Parramatta City Council (No 3) (1999) 111 LGERA 233; Pancho Properties Pty Ltd v Wingecarribee Shire Council (1999) 110 LGERA 352; Byron Shire Council v Vaughan (No 2) (2000) 110 LGERA 424; and The Commonwealth of Australia v Verwayen (1990) 170 CLR 394.

Council submissions

20 The council acknowledges that the statement made by Ms Aitken was erroneous. However, the council submits that there is no evidence to establish that Ms Aitken held ostensible authority to make statements of behalf of the council nor that the council had a policy or practice of allowing a delegated decision to be challenged at a meeting of the council. The council submits that the only evidence of authority relied upon is constituted by the letters of council advising of the DA.

21 The council also submits that such evidence could not give rise to a legitimate expectation and relies upon the principle referred to in Porter and Another v Hornsby Shire Council (1989) 69 LGRA 101.

22 The council submits that there was a clear misunderstanding between Ms Locke and Ms Aitken. It is submitted that Ms Aitken intended to convey to Ms Locke and the other applicants that the “decision” referred to in the conversation was her recommendation which she would make at the completion of her assessment.

23 The council submits that the doctrine of estoppel cannot displace the council’s statutory duty. Council relies upon the decisions in Wormald v Gioia (1980) 43 LGERA 101; Norfolk County Council v Secretary of State for the Environment and Another (1973) 1 WLR 1400 at 1405 and Lever Finance Ltd v Westminister (City) London Borough Council [1971] 1 QB 222. The council submits that the requirements for the operation of the doctrine of estoppel are absent in that no legal relationship existed between the council and the applicants when the representation was made. The council submits that the applicants were entitled to make their own enquiries of the process and it owed no duty to the applicants.

Findings

Authority

24 The letters received by Ms Locke from the council dated 2 May 2003 and 26 August 2003 nominated Ms Aitken as the officer who could provide any further information in relation to the DA. Communications held between Ms Locke and the council were conducted by Ms Aitken, the latter being the council’s representative. At the meeting held on 8 September 2003 Ms Aitken attended as the representative of the council for the purpose of investigating the applicants’ objections, taking photographs for use in the assessment process and for providing information to the applicants. Subsequent to that on site meeting, further communication took place between the applicants and Ms Aitken.

25 It is not disputed that at all relevant times Ms Aitken held the position described as Assessment Officer of the Development Assessment section of the council and reported to Ms Ozog who held the position of Team Leader in that section. Ms Aitken was required to prepare reports and assessments for presentation to Ms Ozog in respect of development applications of up to $2 million in value to enable Ms Ozog to make the determination whether to grant consent pursuant to her delegated authority.

26 In Wormald v Gioia the Full Court of the Supreme Court of Australia determined that a council officer who was not engaged in the planning department and to whom inquiries were made in respect of a town planning matter had no authority to bind the council in relation to planning, nor did he not purport to do so: see the decision of Mitchell J at p 105. However, the facts are distinguishable from the present circumstances. Unlike the facts in Wormald v Gioia, Ms Aitken was engaged in the planning department of the council. The correspondence issued by the council nominated Ms Aitken as the officer who could provide information in respect of the DA. Her attendance on site for that purpose and her further communication with the applicants establish her ostensible authority.

27 The above facts establish that Ms Aitken was acting with the authority of the council in respect of the assessment of the DA and in relation to the provision of information relating to it and also in respect of the provision of information in relation to such application.

The representation

28 The discrepancies between the recollections of Ms Locke and Ms Aitken relate to the stage at which the “decision” could be made the subject of review. Ms Locke understood from the representation that the application for review by three councillors could be made after Ms Aitken’s superior had “signed off on the report” prepared by Ms Aitken. Ms Aitken said that the “decision” to which she referred in the conversation was a reference to her recommendation

29 The council maintained a policy of refusing to disclose to objectors recommendations made by an officer. Further, there was no procedure to notify the applicants of the recommendation. The applicants would not know when to make the enquiry concerning the recommendation to provide them with the opportunity to challenge such recommendation. Accordingly Ms Aitken’s understanding cannot be accepted.

30 Additionally, the representation was erroneous in that it was not necessary for the applicants to await the finalisation of Ms Aitken’s report before seeking to have the DA brought before the council pursuant to council’s “Code of Meeting Practice” adopted pursuant to s 362 of the Local Government Act 1993. The applicants were entitled to take steps to call in the DA before a council meeting even as at 8 September 2003, but this procedure was not made known to the applicants.

31 For the above reasons the Court accepts that the applicants were misled into believing that they were entitled to make further submissions to the Council after the report by Ms Aitken to her manager had been “signed off”. In fact at that stage it was too late, since the “signing off” constituted the grant of approval. The report of 24 September 2003 was presented by Ms Aitken to her manager and the decision was made to approve the development application on 25 September 2003. The opportunity of placing any further submissions to the council was accordingly denied to the applicants.

Legitimate expectation

32 The Court must consider whether the circumstances gave rise to a legitimate expectation on the part of the applicants that they would have the opportunity to address council before a final decision was made. The basis of the doctrine of legitimate expectation has been well settled. It has been conveniently summarised by Mason CJ and Deane J in Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1994-1995) 183 CLR 273 at p 291 as follows:-

…if a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course.

In Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 at p 637:-

The expectations may be based upon some statement or undertaking by, or on behalf of, the public authority which has the duty of making the decision, if the authority has, through its officers, acted in a way that would make it unfair or inconsistent with good administration for him to be denied such an inquiry.

In the latter decision the Privy Council approved the decision in R v Liverpool Corporation; Ex parte Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299. In that decision a local council committee which had power to issue taxi licences exercised such power by increasing the number of licences despite a public undertaking that it would not do so until a private bill had been enacted. At p 308 Lord Denning said:-

But that principle does not mean that a corporation can give an undertaking and break it as they please. So long as the performance of the undertaking is compatible with their public duty, they must honour it.

The operation of such a principle was also demonstrated by the High Court of Australia in FAI Insurance Ltd v Winneke and Others (1981-1982) 151 CLR 342.

33 The council relies on the decision in Porter and Another v Hornsby Shire Council at p 105 where Cripps CJ said:-

But to have a legitimate expectation of benefit based upon a policy or practice, there must be a policy or practice. A council should not be held to a promise it did not make.

The facts of Porter are distinguishable. Porter was concerned with a practice or policy of the Hornsby Council. However in this case the council, through its officer made a specific representation.

34 As a result of the conduct of the council, the applicants have been denied the opportunity of “calling in” the DA before a council meeting. Although the council submits that there is no evidence that the applicants intended to request the councillors to “call in” the decision, such submission is contrary to the evidence of Ms Locke contained in her affidavit sworn 26 January 2004. At paragraph 29 thereof Ms Locke deposes that she would have approached three councillors with a request that the DA be considered by the council.

35 It follows there has been a denial of procedural fairness. Whether the hearing before the council might result in the same determination as Ms Ozog is immaterial. A valuable purpose could be served by a hearing before a different decision maker: see Kanda v Government of Malaya [1962] AC 322; Kioa and Others v West and Another (1985) 159 CLR 550 at p 620 per Brennan J; Somerville v Dalby at p 427; Glowpace Pty Ltd v South Sydney City Council at p 89.

36 The consequence of the failure to provide procedural fairness leads to the conclusion that the decision is void: see Ridge v Baldwin [1964] AC 40; Darling Casino Limited v New South Wales Casino Control Authority and Others at p 609; Minister for Immigration v Bhardwaj at p 613. Accordingly the determination of Ms Ozog on behalf of the council granting development consent to the DA is void.

Estoppel

37 In view of the above finding it is unnecessary to determine whether an estoppel is also created in the applicants’ favour. However the Court observes that the statement made by Ms Aitken led the applicants to believe that if they so wished they would have the opportunity to “call in” a meeting of the councillors once Ms Aitken’s report and recommendations had been prepared. It is acknowledged by the council that such a procedure was not available and that such representation was wrong. Had the correct procedure been made known to the applicants they may have sought to “call in” a meeting of the councillors at that stage.

38 In Lever Finance Ltd v Westminister (City) London Borough Council Lord Denning MR at p 230 referred to the principle that a council could not be estopped from doing its public duty: Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1QB 416. However His Lordship said of such decision:-

But those statements must now be taken with considerable reserve. There are many matters which public authorities can now delegate to their officers. If an officer, acting within the scope of his ostensible authority, makes a representation on which another acts, then a public authority may be bound by it, just as much as a private concern would be.

39 The doctrine of estoppel has been comprehensively addressed by the High Court of Australia in The Commonwealth of Australia v Verwayen, and considered by this Court in Byron Shire Council v Vaughan (No 2) at p 431-434. In The Commonwealth of Australia v Verwayen Deane J at p 444 stated the basis of the doctrine of estoppel by conduct as follows:-

2. The central principle of the doctrine is that the law will not permit an unconscionable – or, more accurately, unconscientious – departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that other party’s detriment if the assumption be not adhered to for the purposes of the litigation.

40 The applicants were led to believe that the second opportunity to raise their objections would be provided to them. Ms Locke stated her understanding of the conversation with Ms Aitken on 8 September 2003 as follows:-

More simply, I understood from Ms Aitken’s reply that I would potentially have two opportunities to object to the DA. Firstly, I could make submissions before Ms Aitken prepared her report, and secondly, if I was unhappy with the decision made by Ms Aitken’s boss, I (or another objector) could make submissions (including oral submissions) before the elected members of Council made a decision in a meeting called to review the decision made by Ms Aitken’s boss.

46 The Court is satisfied that the understanding of Ms Locke and the other applicants arose directly from the representation of Ms Aitken. In these circumstances it would be unconscionable for the council to depart from the belief which was so engendered. Accordingly the Court upholds the submission of the applicants that the council is estopped from denying that the applicants would be entitled to make further representations.

Discretion

41 The council submits that the applicants have already made extensive objections to the development application before it was determined. There is a probability that the same result would occur and that the Court should not declare the determination of council invalid.

42 For the reasons referred to above the Court rejects such submission. Further, there being no evidence of any hardship being occasioned to any person if the relief sought is granted, the Court will grant such relief.

Costs

43 In the exercise of the Court’s discretion pursuant to s 69 of the Land and Environment Court Act 1979 costs are usually awarded in favour of the successful party. Costs have not been argued, but prima facie the usual rule should apply and an order to this effect will be made subject to liberty to apply to vary such order. By this order the costs of a further hearing confined to costs may be avoided.

44 The second and third respondents filed a submitting appearance except as to costs. They have taken no part in the proceedings and accordingly no order for costs will be made against them.

Orders

45 The Court makes the following declaration and orders:-

1. DECLARATION that the first respondent’s notice of determination of development application DA 03/00323/GA dated 3 October 2003 is invalid;

2. ORDER that the first respondent by its servants and agents be restrained from exercising any delegated power to determine development application DA 03/00323/GA for a period of 28 days following the date of order 1;

3. ORDER that the first respondent pay the applicants’ costs of these proceedings unless an application is made to vary this order within 21 days of the date of such order;

4. ORDER that the exhibits be returned.