Rosebanner Pty Ltd v EnergyAustralia

[2009] NSWSC 43

Reported Decision: 223 FLR 406

New South Wales

Supreme Court

CITATION:	Rosebanner Pty Limited v EnergyAustralia [2009] NSWSC 43
HEARING DATE(S):	10, 11, 12, 13, 14, 17, 20 November and 9 December 2008
JUDGMENT DATE :	20 February 2009
JURISDICTION:	Equity Division
JUDGMENT OF:	Ward J at 1
DECISION:	Claims in trespass and for breach of contract dismissed. EnergyAustralia found to have engaged in misleading and deceptive conduct. No loss sustained by reason of that misleading and deceptive conduct. Claim dismissed.
CATCHWORDS:	ENERGY AND RESOURCES – electricity – electricity providers, authorities and undertakings – whether presence of electricity infrastructure on private land constituted trespass – whether infrastructure lawfully installed by Sydney County Council under Municipal Council of Sydney Electric Lighting Act 1896 and/or Public Works Act 1912 - whether EnergyAustralia had lawful authority to maintain presence of infrastructure under Electricity Supply Act 1995 – HELD – no trespass as infrastructure lawfully installed and maintained on land. - - CONTRACTS – general contractual principles – offer and acceptance - whether parties entered binding contract obliging EnergyAustralia to remove infrastructure – whether agreement reached by which parties intended immediately to be bound – HELD – no contract formed – no agreement reached – no objectively ascertainable intention immediately to be bound. - TRADE AND COMMERCE – Trade Practices Act 1974 (Cth) and related legislation – whether representation made as to future removal of infrastructure – whether representation in course of without prejudice settlement negotiations was made in trade or commerce – whether reasonable grounds existed for making of representation – whether any damage suffered by reason of the misleading and deceptive conduct – HELD – representation made in trade or commerce – no reasonable grounds for making representation – no damage suffered by reason of the misleading and deceptive conduct
LEGISLATION CITED:	Crown and Other Roads Act 1990 Electricity Act 1945 Electricity Development (Amendment) Act 1987 Electricity Supply Act 1995 Electricity Supply Amendment (Protection of Electricity Works) Act 2006 Electricity Supply Amendment (Protection of Electricity Works) Bill 2006 Energy Legislation (Repeals and Savings) Act 1987 Energy Services Corporations Act 1995 Environmental Protection Agency Act 1979 Fair Trading Act 1987 Gas and Electricity Act 1935 Local Government Act 1919 Post and Telegraph Act 1901 Postal and Telecommunications Commission- (Transitional Provisions) Act 1975 Public Roads Act 1902 Public Works Act 1912 Roads Act 1993 State Owned Corporations Act 1989 Sydney Electricity Act 1990 Sydney Water Act 1994 Trade Practices Act 1974 (Cth) Telecommunications Act 1975
CATEGORY:	Principal judgment
CASES CITED:	Air Great Lakes Pty Limited v K S Easter (Holdings) Pty Limited (1985) 2 NSWLR 309 Airtourer Co-operative Limited v Millicer Aircraft Industries Pty Limited [2004] FCA 948 Allen v Tobias (1958) 98 CLR 367 Australian Competition & Consumer Commission v Danoz Direct Pty Limited (ACN 003 546 709) [2003] FCA 881 B Seppelt & Son Limited v Commissioner for Main Roads (1975) 1 BPR 9147 Barrier Wharfs Limited v W Scott Fell & Co Limited (1908) 5 CLR 647 Baulkham Hills Private Hospital Pty Limited v G R Securities Pty Limited (1986) 40 NSWLR 622 Bentley v Nelson [1963] WAR 89 Bill Acceptance Corporation Limited v GWA Limited (1987) 50 ALR 242 Brighton v Dungog Municipal Council (1943) 15 LGRA 74 Callister v Bischoffsheim (1870) LRJ QB 449 Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594 Cummings v Lewis (1993) 41 FCR 559 Cutts v Head [1894] Ch 290 Delany v Tenison (1758) 3 Bro PC 659; 1 ER 1559 Dialog Pty Limited v Addease Pty Limited [2003] FCA 1359 Dinyarrak Investments Pty Limited v Amoco Australia Limited (1982) 45 ALR 214 Elders Trustee and Executors Company Limited v E G Reeves Pty Limited (1987) 78 ALR 193 Field v Commissioner for Railways for New South Wales (1957) 99 CLR 286 Film Bars Pty Limited v Pacific Film Laboratories Pty Limited (1979) 1 BPR 9251 G R Securities v Baulkham Hills Private Hospital Pty Limited (1986) 40 NSWLR 631 Gallen v Strathfield Municipal Council [1971] 1 NSWLR 122 Global Sportsman Pty Limited v Mirror Newspapers Pty Limited (1984) 2 FCR 82 GPI Leisure Corporation v Yuill (1997) 42 NSWLR 225 Grater v City Mutual Life Assurance Society Limited (1986) 160 CLR 1 Gray v Haig (1854-1855) 20 Beav 219; 52 ER 587 Hooker Corp Pty Limited v Hornsby Shire Council (NSWLEC 2 June 1986) Industrial Equity Limited v Deputy Commissioner of Taxation (1990) 170 CLR 649 Kenstrom Design Pty Limited v Mosman Council [2008] NSWLEC 1428 Kevin Snell Pty Limited v Manly Council [2004] NSWLEC 567 Knox County v Ninth National Bank 147 US 91 Levenstrath Community Association Inc v Tomies Timber (2000) 108 LGERA 176 Lucent Technologies Inc v Krone Aktiengesellschaft (No 3) [2000] FCA 100 Lyndel Nominees Pty Limited v Mobil Oil Australia Limited (1997) 37 IPR 599 Macquarie Developments Pty Limited and Anor v Forrester and Anor [2005] NSWSC 674 McDermott v Black (1940) 53 CLR 161 McLean Bros & Rigg Limited v Grice (1906) 4 CLR 835 McPhillips v Ampol Petroleum (Vic) Pty Limited (1990) ATPR 41-014 Mills v Selby [1971] VR 836 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 Moorna Constructions (NSW) Pty Limited v Denmatu Pty Limited (1998) ATPR 41-616 Municipal Council of Sydney Electric Lighting Act 1896 Murphy v Overton Investments Pty Limited (2004) 204 ALR 26 North Shore Gas Company v Commissioner of Stamp Duties (1940) 63 CLR 52 NWR FM t/a North West Radio v. Broadcasting Commission of Ireland & Anor [2004] IEHC 109 Pan Pharmaceuticals v Australian Naturalcare (2008) 165 FCR 230 Permanent Trustee Co of New South Wales v Campbelltown Corporation (1960) 105 CLR 401 Pertzel v QLD Pawlownia Forests Limited & Anor [2008] QCA 287 Port Stephens Shire Council v Tellamist Pty Limited (2004) NSWCA 353 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Proprietors of SP 13318 and 13555 v Lavender View Regency Pty Limited 91997) 97 LGERA 337 Quad Consulting Pty Limited v David R Bleakley & Associates Pty Limited, (1990) 27 FCR 86 Quirindi Shire Council v Gigli (1985) 3 NSWLR 178 R T & Y E Falls Investments Pty Limited v The State of New South Wales & ors [2001] NSWSC 1027 Rodgers v Rodgers (1964) 114 CLR 608 Rush & Tompkins v Greater London Council [1989] AC 1280 Seamez v Mclaughlin [1999] NSWSC 9 Spencer v The Commonwealth (1907) 5 CLR 418 Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 Stockland (Constructors) Pty Limited v Retail Design Group (International )Pty Limited [2003] NSWCA 84 Sykes v Reserve Bank of Australia The Ophelia [1916] 2 AC 206 The Owners of St John's Court Rivervale Strata Plan 6052 v Western Australian Planning Commission and Ors [2004] WASC 196 Thompson v Australian Telecommunications Commission (Hodgson J unreported, 18 July 1988; BC 8801729) Tomlin v Standard Telephones and Cables Limited [1969] 1 WLR 1378 Walker v Wisher (1889) 23 QBD 335 Weber v Ankin (2008) 13 BPR 25,231 Wheeler Grace & Pierucci Pty Limited v Wright (1989) ATPR 90-940 Wigan v Edwards (1973) 1 ALR 497 Winter Property Group v North Sydney Council [2001] NSWLEC 46 WJ Green & Co (1984) Pty Limited as Trustee for the W J Green Family Trust v Wilden Pty Limited as Trustee for the Baga Bazaar (1985) Unit Trust (Parker J, WASC, 24/4/1997, unreported) Wright v TNT Management Pty Limited (1989) 15 NSWLR 679
TEXTS CITED:	Mozley and Whitley’s Law Dictionary The Law Affecting Valuation of Land – Hyam – 3rd Ed
PARTIES:	Rosebanner Pty Limited (First Plaintiff) Twenty-First Century Properties Limited (Second Plaintiff) Energy Australia (Defendant)
FILE NUMBER(S):	SC 1144 of 2004
COUNSEL:	J Webster SC with him M Green (Plaintiffs) M Leeming SC with him C Withers (Defendant)
SOLICITORS:	Stephen Wawn & Associates (Plaintiffs) Clayton Utz (Defendant)

- 26 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WARD J

FRIDAY 20 FEBRUARY 2009.

1144/04 ROSEBANNER PTY LIMITED & ANOR V ENERGYAUSTRALIA

JUDGMENT

1 In these proceedings the plaintiffs (“Lyons entities”) seek damages and other relief in relation to the presence, over the period of their ownership of certain land in Woolooware, of electricity infrastructure on that land.

2 Initially, the claim by the Lyons entities was limited on the pleading to a claim for damages for trespass to land arising out of the alleged unlawful nature of the electricity infrastructure as installed on the subject land. Subsequently, the pleading was amended to include claims for breach of an alleged agreement on the part of the defendant (“EnergyAustralia”) to remove the electricity infrastructure within a particular period of time and, for misleading or deceptive conduct and/or false or misleading representations by EnergyAustralia, in contravention of the Trade Practices Act 1974 (Cth) or, alternatively, the Fair Trading Act 1987 (NSW), relating to the removal of the electricity infrastructure. (Senior Counsel for the Lyons entities (Mr Webster SC) made clear during the course of the opening submissions that no claim is made for negligent misrepresentation at common law.)

3 The Lyons entities have invoked s 51A of the Trade Practices Act and s 41 of the Fair Trading Act in relation to the alleged representations.

4 EnergyAustralia denies each of the claims. In summary, it is contended that the trespass claim fails because there is a defence of lawful authority; that the contract claim fails because there was no contract; and that the misleading and deceptive conduct claim fails because the alleged representations were not made (and, even if they were, they were not made in trade or commerce and there were reasonable grounds for making the representations at the time). EnergyAustralia further says that, even if any of the claims were to succeed, the Lyons entities have suffered no loss.

Summary

5 For the reasons set out below, I have concluded that the Lyons entities have not made out their claims in trespass or for breach of contract, but have established that there was misleading and deceptive conduct in relation to a representation made by EnergyAustralia by letter dated 11 July 2003 to the effect that the electricity infrastructure would be removed in early September 2003.

6 I am not satisfied that any loss was sustained by reason of that misleading and deceptive conduct.

7 Therefore, unless there is any utility in making a declaration as to the misleading or deceptive conduct, the appropriate course is to dismiss the claim by the Lyons entities.

Facts

8 The trespass claim necessarily involves an analysis of the historical background to the creation of the subject land and the powers of the entity (Sydney County Council) which first installed the electricity infrastructure on that land and of the entity (EnergyAustralia) in which ownership of the infrastructure was ultimately vested. I will therefore confine my initial outline of the facts to those which are relevant to those matters and I will turn later in these reasons to the more general factual background which is relevant to the contract and representation claims.

The subject land

9 The subject land is comprised of Lots 1234 and 1235 in DP 822258 (“Lots 1234/5”).

10 In about late 1982 or 1983, when the electricity infrastructure was installed, the subject land formed part of what was then the unformed Bate Bay Road, an area roughly at right angles to, and to the east of, the then unformed Woolooware Road North.

11 In 1954, pursuant to a resolution made on 22 February 1954, the Sutherland Shire Council (“the Council”) resumed land, including the land identified on DP 109853 as Bate Bay Road together with land immediately to its north, for the purpose of widening and extending as a public road Captain Cook Drive. Notice of the resumption was gazetted in the New South Wales Government Gazette No 125 dated 13 August 1954 pp 2526-2527 (Ex 22 tab 7).

12 Endorsed on DP 109853 (Ex 22 Tab 8) was the following declaration by the Shire Clerk and the President of the Council:

The Common Seal of the Council of the Shire of Sutherland was herewith affixed in pursuance of a resolution of the Council dated 22nd February 1954 to denote the acceptance of the road shown on this plan as a public roadway”.

13 The status of the subject land (in particular, whether the unformed Bate Bay Road was a public road) is relevant when determining the source of any statutory power to install electricity infrastructure thereon. There is nothing to suggest that the status of the subject land changed between 1954 and 1982/1983. Both parties submitted at various times in the hearing that by 1982/83 the land constituting the unformed Bate Bay Road was a public road (EnergyAustralia’s closing written submissions, para 4, the Lyons entities opening submissions para 7). Certainly, as at the time the road was formally closed in 1992, the logical inference to be drawn was that the road had at some stage before then been opened as a public road.

14 The significance of the issue only emerged during the course of the hearing, insofar as reliance was placed on s 80 of the Public Works Act for the installation of the infrastructure having regard to the requirement of s 86 of that Act. Perhaps as a result, I did not have the benefit of closely reasoned submissions on this issue

15 At common law, a public road has been said to be a road that has become public by reason of dedication and acceptance: Permanent Trustee Co of New South Wales v Campbelltown Corporation (1960) 105 CLR 401. However, if Bate Bay Road was opened after the Local Government Act 1919 came into force, the status of the road (as public or otherwise) will be governed by the operation of that Act.

16 White J explained the effect of that legislation in Weber v Ankin (2008) 13 BRP 25,231:

Part IX of the Local Government Act 1919 came into force on 1 July 1920. Section 237 (in Pt IX) and s 323 (in Pt XII) forbad the opening of new public roads except in accordance with the provisions of the Act. Existing public roads (a defined expression which included roads the public was entitled to use), other than a main road, were vested in the councils.

17 The questions which arise from this are whether the road was opened after the Act came into force (if it opened before, the declaration by the Council of acceptance of the road as a public roadway would be sufficient for the purposes of the common law) and whether what happened in 1954 amounted to a road opening or realignment of an existing road.

18 Section 327 of the legislation, as it stood in June 1954, set out in detail the procedure to be followed for the opening of a public road, including the making of an application under the act, certification by the town or shire clerk as to compliance with the requirements of the Act and registration of a plan of the road (such plan to include a notation of approval under the seal of the council).

19 Section 336 provided that as soon as the plan of any road or of any subdivision containing a road had been registered in the office of the Registrar-General as prescribed, the road was deemed to be opened as a public road and thereby to be dedicated accordingly.

20 There is no evidence as to whether the procedure for opening a road was followed in respect of Bate Bay Road in 1954. The endorsement on DP 109853 suggests on one view that it may have been as it refers to the affixation of the Council’s seal and, read with the notice of resumption gazetted in August 1954, makes it clear that the Council was “accepting” the dedication of the resumed Bate Bay Road for use as a public road.

21 The Local Government and Conveyancing (Amendment) Act 1964 amended a number of the provisions dealing with public roads and introduced a new s 323 which included:

(3) Where
a. any instrument registered in the office of the Registrar-General before the commencement of the Local Government and Conveyancing (Amendment) Act 1964, purports to dedicate any land for use as a public road;
b. such instrument was accepted in writing by or on behalf of the council of the area in which the land was situated; and
c. the provisions of s 327 were not complied with in relation to the opening of such road,
such dedication shall neither be, nor be deemed ever to have been, invalid by reason only of the failure to comply with the provisions of the said s 327.

22 Accordingly, at least as from 1964, whether or not there had been compliance with the procedures specified under s 327 of the Act for the purposes of creation of a public road, a dedication by way of endorsement on a deposited plan of Council’s acceptance of a road as a public road would have had effect.

23 It is not clear, however, whether what happened in 1954 was the “opening” of a road or the “realignment” of an existing road. The August 1954 gazettal in its terms effected a resumption of land in pursuance of the Local Government Act for the express purpose of “widening and extending a public road”.

24 It would seem that this was pursuant to s 536 of the Local Government Act which read as follows:

1. The council may, from time to time, with the approval of the Governor, cause a notice of the resumption or appropriation of any land, together with a description of such land, to be published in the Gazette and in a newspaper circulating in the area in which the land is located.

2. A plan of such land showing, as far as can be ascertained, the separate parcels thereof, and the names of the owners of the separate parcels, shall be filed by the council in the office of the council and a copy of the plan shall be lodged with the Surveyor-General at the Department of Lands, Sydney. Such plans shall be open for public inspection.

25 I note that although s 262 provided a method by which a realignment of a public road might be carried into effect in order to widen the road (either by the acquisition of land under the Act, or under the provisions of s 262 relating to the realignment method of acquiring land, or by a combination of these methods), it seems clear that the process for road realignment or widening itself was one which was governed by s 28 of the Public Roads Act 1902.

26 In Kevin Snell Pty Limited v Manly Council [2004] NSWLEC 567, Pain J stated:

… that it is the Public Roads Act 1902 which is directed to the process of road widening itself while the Local Government Act 1919 is directed to the method whereby the Council will acquire the affected land to give affect to the road widening.

27 Of relevance, in this regard may be s 262(7) which provided that, notwithstanding the provisions of the Public Roads Act, the land between the old alignment and the new did not form part of the road until the council has acquired title to such land, or a dedication thereof as a public road had been effected.

28 I am not aware of any formal notification of proposed realignment or subsequent approval thereof in respect of Bate Bay Road, at least going back to notices gazetted from April 1973. However, whether there was compliance with any realignment procedures probably does not affect the conclusion that the resumption notified on 13 August 1954 (whether it constituted a road opening as such or whether it was simply a resumption pursuant to s 262(6) of the Act) seems to have been dedicated or accepted by the Council for use as a public road by virtue of the declaration endorsed on DP 109853.

29 In 1973 part of Woolooware Road North became dedicated as a public road. In their reply filed to the defence to the second further amended statement of claim, the Lyons entities refer to this dedication as a dedication of Bate Bay Road and as including the subject land, noting that the dedication was limited to the surface of the land and 20 metres below that surface (and they submitted that at that stage the subject land fell under the care of the local Council under the Public Roads Act and subsequently under the Crown and Other Roads Act 1990 and Roads Act 1993). However, the 1973 dedication in its terms relates only to the unformed Woolooware Road North, not to that part of the Crown land (Bate Bay Road) which had been resumed in 1954 (Government Gazette No 28 dated 2 March 1973 Folio 700). I do not understand the Lyons entities to have pursued this part of their initial submissions.

30 The Department of Lands (with its successors referred to in these reasons as the “Department”) appears to have regarded it as “an unformed … non public road” (See Ex AB p 59) and, immediately prior to the closure of Bate Bay Road on 6 March 1992, (pursuant to the Public Roads Act), it was described by the State’s Regional Director as a “non-public Crown road” (See Ex 23 p 7),

31 However, on the evidence before me (by reason of the acceptance by the Council of its dedication to public use) from the time of its resumption by the Council in 1954, Bate Bay Road (and hence as at 1982/3), the unformed Bate Bay Road was a public road.

32 A notification of Proposed Closing of Bate Bay Road was made in Government Gazette No 41 dated 23 March 1990, and the road closure notification itself was subsequently gazetted on 6 March 1992 (see Ex 23 pp 133-135). It is not disputed that the consequence of the closure of Bate Bay Road in March 1992 was that the land was “freed and discharged from the rights of the public or any person thereto as a highway” and became Crown land (Section 20(2) Public Roads Act).

33 Lots 1234/5 were subsequently created when a plan of subdivision in deposited plan 822258 was approved by the Minister’s delegate on 9 May 1994 (Ex A1 tab 3). Adjacent to Lots 1234/5, but created at an earlier time, is Lot 1 in DP226835 (“Lot 1”). Lot 1 was acquired by the Lyons entities in about 1993 and sold (by way of mortgagee sale) in 1998.

34 Lots 1234/5 were acquired by the Lyons entities in 1998 and sold (again at the instigation of the mortgagee, though ultimately not as a mortgagee sale) in 2004.

35 The sale of Lots 1234/5 to the Lyons entities by private treaty without public competition was recommended by the Department on the basis that “… having regard to the restrictions imposed by LEP 151 and the limited visibility from Captain Cook Drive, development of this area, other than in conjunction with the adjoining freehold land [Lot 1], does not appears to be a viable option”. (Ex AB p 59). (That memorandum noted that the building line for any development of that land was limited to “30 metres from the present riparian boundary”.)

Relevant Powers

· 1982

36 There is no dispute that the electricity infrastructure (identified as poles 27, 27A and 27B) was installed on the subject land in either late 1982 or 1983 by Sydney County Council. Mr Newland, an engineer with EnergyAustralia, gave evidence that Sydney County Council’s practice in 1982 was to locate overhead power lines along roads.

37 Relevantly, at that time Sydney County Council had the powers conferred on the Municipal Council of Sydney by the Municipal Council of Sydney Electric Lighting Act 1896, ss 27, 31 and 32 (“the 1896 Act”) (see Gas and Electricity Act 1935, s 51(1)) as well as powers under s 382 and s 383 of the Local Government Act 1919.

1896 Act

38 Section 14 of the 1896 Act gave Sydney County Council power to:

open and break up the soil and pavement of any street … and place under or over any street any electric line; and from time to time repair, alter or remove the same … and may in any such street erect any posts, pillars … and other works, and do all other acts which they may from time to time reasonably deem necessary for supplying electricity.

provided that:

nothing herein shall authorise or empower the Council to construct or place any works … in … any … land not dedicated to public use without the consent of the owners and occupiers thereof, except that the Council may at any time make entry, and construct and place any new works instead of such works as shall have been lawfully constructed or place and may repair or alter any works so constructed or placed.

39 “Street” was defined as “any square, court, alley, highway, lane, road, thoroughfare or public place or passage”. As at 1982/1983, the then unformed Bate Bay Road (designated as a road on DP 109853) fell within the definition of “street” in the 1896 Act. Having been resumed by the Council for use as a public road, there was no requirement under s 14 for owner/occupier consent to any electricity works thereon.

40 The power under s 14 was subject to s 18, which required that one month’s notice be given to various statutory authorities. In this regard Mr Newland, gave evidence that a notification plan (NP T0010) for the works in 1982 was prepared and discussed with Sutherland Shire Council officers, although a copy of the notification plan was not able to be located (see Mr Newland’s affidavit sworn 11 November 2008 and Annexures B and C).

Public Works Act

41 Turning to the powers applicable by reason of the Local Government legislation, clause 4B of Ordinance 20 of the Local Government Act provided that:

(a) sections 106(1) (d), 110, 382-384 , 386, 416-417B; and
(b) sections 418 and 419(1) (except to the extent to which they are inconsistent with the provisions of the Electricity Act 1945); and
(c) sections 419A, 420(1), 422, 500(1), 500, 501, 502, 506A, 506E and 512B. 512G,
apply to County Councils that are electricity councils within the meaning of the Electricity Act 1945 in the same way as they apply to Councils. (my emphasis)

42 Relevantly, those powers were as follows:

382 (1) Subject to this Division, the Council may construct, extend, protect, maintain, control, and manage -


(a) works of water supply or sewerage or drainage and any works incidental thereto; and

(b) works in connection therewith or separate therefrom for the supply of electricity :
and

383 (1) For the purpose of investigating, preparing for, constructing, extending, protecting, or maintaining any works under this Part , and for the purpose of repairing any damage caused thereby, the Council shall have the powers conferred by Division 6 of Part VI of the Public Works Act, 1912, upon a constructing authority in addition to the powers conferred by this Act. (my emphasis)

43 Under ss 383(2) and (3), compensation was payable for any damage caused in the exercise of those powers.

44 Section 80 of the Public Works Act 1912, made applicable to Sydney County Council by s 383(1), provided that a constructing authority (of which Sydney County Council was one):

(a) may enter into and upon the lands and grounds of any person whomsoever and ... take or appropriate, for the purposes herein mentioned, such parts thereof as may be necessary and proper for the laying out, making and using any public work, and all other works, matters and conveniences connected therewith, …
(i) and generally may do all other acts necessary for constructing, reconstructing, making, maintaining, altering, repairing, adding to, extending, and using such public work

45 Section 86 of the Public Works Act required approval by the Governor for any work “crossing any public highway or carriage road”. There was no evidence of any such approval.

46 It is submitted by EnergyAustralia that the key difference between the two sources of power (ie between s 14 of the 1896 Act and s 80 of the Public Works Act) was that, under the latter, the landowner had a right to compensation. The relevance of a right to compensation arises where land is privately held, since in Brighton v Dungog Municipal Council (1943) 15 LGRA 74 the court recognised that s 382 of the Local Government Act did not authorise encroachment on private land and held that s 80 (which did authorise the construction and maintenance of works on private land), only did so subject to the liability to pay compensation.

47 In Gallen v Strathfield Municipal Council [1971] 1 NSWLR 122, the Court of Appeal confirmed that:

by virtue of s. 383, … for the purpose of constructing and maintaining sewerage and drainage pipes, which works the council has power to do under s. 382, provided it has duly authorized such work, then the council and its servants have the right by virtue of s. 80 of the Public Works Act to enter private land and to construct and maintain such work without first resuming an easement. The exercise of such rights is subject to a liability of the council to pay compensation.

48 In Quirindi Shire Council v Gigli (1985) 3 NSWLR 178 the Court of Appeal declined to reconsider Brighton and Gallen.

49 It was pointed out by EnergyAustralia that the compensation provisions of the Local Government Act did not give subsequent landowners (such as the Lyons entities) a right to compensation in respect of works for the supply of electricity which had earlier been constructed on private land (those subsequent owners buying the land subject to, and presumably at a price reflective of, the affectation). Authority for that proposition can be found in The Owners of St John's Court Rivervale Strata Plan 6052 v Western Australian Planning Commission and Ors [2004] WASC 196, where it was said, in relation to the particular resumption of land in that case, that:

Any interest in the land resumed, including common property, was, by fact and virtue of the compulsory acquisition, converted immediately to a right to claim compensation for the compulsory acquisition so changing in character from an interest in land, or a proprietary interest, to a personal claim for money, by reason of s 18(2) of the Land Acquisition and Public Works Act. See also Fletcher v Ashburner (1779) 1 Bro CC 497; 28 ER 1259 and Brown v Heffer (1967) 116 CLR 344. This conversion of a proprietary interest to a personal right therefore affects any succession to the rights of a former unit proprietor. For example, a subsequent sale or disposition of his or her title to the unit by a former proprietor will only convey the interest in the land and not this personal entitlement to compensation (subject of course to any express provision to the contrary in the agreement for sale).

· 1987

50 The 1896 Act (as also was the Gas and Electricity Act 1935) was repealed by the Energy Legislation (Repeals and Savings) Act 1987 (NSW) with effect from 26 June 1987.

51 Sub-section s 7F(4) of the Electricity Development (Amendment) Act 1987 deemed that the power to supply electricity and the functions under s 382 of the Local Government Act to construct, extend, protect, maintain, control and manage works for the supply of electricity were delegated to Sydney County Council. Clause 3, Schedule 2 of the Energy Legislation (Repeals and Savings) Act 1987 provided that “the new Council is a continuation of, and the same legal entity as, the old Council”.

· 1990

52 Pursuant to the Sydney Electricity Act 1990, Sydney County Council became Sydney Electricity (“Sydney Electricity”) as at 18 December 1990.

53 Sydney Electricity was given the function of “the provision and maintenance of works for the supply of electricity” and the powers to acquire or build, and maintain and dispose of, any buildings, plant, machinery, equipment or vehicles (Sydney Electricity Act ss 51(1)(b) and 6(1)(c)). All assets, rights and liabilities of the former Sydney County Council vested in Sydney Electricity (Sch 5, cl 4(1)(a) and (b)).

54 Pursuant to s 32 of the Sydney Electricity Act, Sydney Electricity was expressly given the authority to enter land for the purposes, inter alia, of installing property of the Authority:

32. For the purposes of, and subject to this Act and the regulations, an authorised person may enter on any land or buildings at all reasonable hours for the purposes of
(a) installing, removing, reading or adjusting any electricity metering equipment or other property of Sydney Electricity, or
(b) checking if Sydney Electricity's conditions relating to tariffs and to the use of electricity are being complied with. (my emphasis)

55 In its terms s 32 is not limited to the installation of electricity metering equipment, and would seem to permit the installation of other electricity infrastructure, (unless it could be suggested that “other property” should be constructed ejusdem generis with the preceding words “electricity metering equipment”).

56 Pursuant to s 38(1), Sydney Electricity had an obligation to compensate for damage caused by it in the exercise of its powers under s 32, as follows:

38(1) Sydney Electricity must compensate all interested parties for any damage caused by it under this Part, other than damage arising from work done for the purpose of an inspection.

57 Sub-section 38(2) further provided that:

In the case of land of which temporary possession has been taken or use is made, the compensation may be a gross sum or a rent.

58 Section 42 of the Sydney Electricity Act contained a power similar to that in s 14 of the 1896 Act.

59 Significantly, after the passage of the Sydney Electricity Act, ordinance 20 of the Local Government Act did not apply to Sydney Electricity. The Lyons entities place considerable weight on this fact and say that even if (which they deny) the electricity infrastructure was lawfully installed in 1982, there was, after 18 December 1990, no right on the part of Sydney Electricity to “maintain” (in the sense of “to leave on the land”) on private land any structures which had previously been installed.

· 1995

60 The assets, rights and liabilities of Sydney Electricity were transferred to MetNorth Energy (“MetNorth”) on 1 October 1995 by order made under s 53A(2) of Sydney Electricity Act. MetNorth was an entity constituted under the Electricity Act 1945.

· 1996

61 Subsequently, another MetNorth entity (“MetNorth Energy”) was constituted under the Energy Services Corporations Act 1995 and on 1 March 1996 the assets, rights and liabilities of MetNorth as constituted under the Electricity Act were transferred to the new MetNorth Energy as constituted under the 1995 legislation by order made under that Act.

62 One of the “principal functions” of MetNorth Energy was “to establish, maintain and operate facilities for the distribution of electricity and other forms of energy”: Energy Services Corporations Act, s 9(2).

63 Section 51 of the Electricity Supply Act 1995 vested ownership of electricity works in MetNorth Energy, even if it was not the owner of the land to which they were affixed.

64 MetNorth Energy changed its name to EnergyAustralia on 2 March 1996. EnergyAustralia is a statutory state owned corporation as specified in Schedule 5 to the State Owned Corporations Act 1989, as amended by the Energy Services Corporations Act 1995.

65 The powers of EnergyAustralia were governed by the Electricity Supply Act, which included, relevantly:

45. Erection and placement of electricity works

(1) This section applies to work connected with the erection, installation, extension, alteration, maintenance and removal of electricity works.
(2) For the purpose of exercising its function under this or any other Act or law, a network operator:
(a) may carry out work to which this section applies, and
(b) in particular, may carry out any such work on a public road or public reserve.
…


60 Compensation

The network operator or retail supplier concerned must pay compensation to the owner or occupier of any land in respect of which a power has been exercised under this Division for any loss or damage arising from the exercise of the power, but is not so liable to the extent to which the loss or damage arises from work done for the purposes of an inspection which reveals that there has been a contravention by the owner or occupier, as the case requires, of any provision of this Act or the regulations.

66 Section 45 of the Electricity Supply Act therefore expressly authorised the “maintenance” (as well as installation) of electricity works; and was not in its terms confined to works on public land. (The reference in s 45(4), which, I have not set out, to “maintenance works” must mean maintenance in the sense of repair or upkeep, rather than in the sense of leaving something in place. However, s 45(1) is not necessarily so limited and could on its face encompass either meaning).

67 Mr Webster noted that the provisions of s 60 of the Electricity Supply Act do not mirror the compensatory provisions of the Public Works Act. Under the Public Works Act, among other things, the constructing authority which took temporary possession of lands by virtue of the powers granted under Part 6 of the Act, was obliged to pay rent during its occupation of the land (s 84(b)) as well as compensation for any damage sustained of a temporary or permanent nature by reason of the occupation in accordance with ss 84(a) and (c).

68 As I understand his submission, Mr Webster argues that because there are no “real” compensatory provisions in the 1995 legislation mirroring those of the Public Works Act, the reasoning in Brighton and Gigli cannot apply to that legislation (and hence the court should conclude that the 1995 legislation did not permit the presence on private land of electricity infrastructure, whether or not that infrastructure had originally been lawfully installed).

69 The difference, relevantly, seems to be between the lack of a provision in the 1995 legislation for the payment of any rent or occupation fee while the land was occupied by the electricity infrastructure. To the extent that the presence of the infrastructure precluded (as the Lyons entities contend) any use of the land by way of on-lease or development, this might seem to be a distinction without substance (as the loss of rental opportunity, would surely fall within the compensation for which a claim could be made under s 60 of the Electricity Supply Act). The only substantive difference would seem to be that compensation by way of rental would not be payable under the later legislation to a subsequent landowner, (perhaps for the reason that it presumably acquired the land on notice of the affectation).

70 Mr Webster submitted that the continued presence of the electricity infrastructure on the subject land after 1995 (even if its original installation in 1982/3 was lawful, and, presumably, whatever the position after 1990) became and/or remained unlawful without an easement or other lawful authority for the said infrastructure and constituted a continuing trespass as at the time the Lyons entities purchased the subject land in April 1998.

· 2006

71 The Electricity Supply Amendment (Protection of Electricity Works) Act 2006 came into force in May 2006. It is clear that from that time no action lies by reason of the presence of electricity works on land or the operation of those works: the presence of the works and the operation, as between the owner of occupier and the network operator, are "taken to be lawful for all purposes" (s 53(2)). That sub-section does not have retrospective effect (as noted by Mr Webster, the transitional provisions would be unnecessary if it had). Schedule 6 clause 148 of the amending Act provides in effect that in any proceedings commenced prior to 2 May 2006 the court may not order removal or modification of the works. However, the Act does not preclude any claim for civil liability.

72 The stated reason for the introduction and passage of the Electricity Supply Amendment (Protection of Electricity Works) Bill 2006, which introduced the current s 53 "Protection of certain electricity works", was uncertainty as to the legal position of much of New South Wales' electricity infrastructure.

73 The Hon Mr Tripodi, in the second reading speech in the Legislative Assembly said:

There is a real risk that opportunistic individuals may jeopardise the future of electricity infrastructure by taking legal action in relation to the presence of electricity infrastructure on their land. Such actions may be commenced even where the original landholder gave consent to the installation of the equipment... There is no clear provision in the Electricity Supply Act to protect the presence, operation and use of electricity works on land not owned by the network operator. This ongoing uncertainty needs to be addressed in order to protect the public interest in a safe and reliable supply of electricity at affordable prices.

74 Similarly, the Hon Mr Costa, in his second reading speech in the Legislative Council, said:

There is a real risk that opportunistic individuals may jeopardise the future of electricity infrastructure by taking legal action in relation to the presence of electricity infrastructure on their land.

…

There is no clear provision in the Electricity Supply Act to protect the presence, operation and use of electricity works on land not owned by the network operator.

75 Of course, recognition by the legislature of uncertainty in relation to the provisions of the Act does not mean that, properly construed, the Act did not protect network owners; it simply indicates a desire on the part of the legislature to remove any doubt.

Did the installation or maintenance of the electricity infrastructure amount to trespass?

76 As noted above, from 1954 the unformed Bate Bay Road had been dedicated to public use.

77 The Lyons entities submitted that there was no evidence that consent was obtained pursuant to s 86 of the Public Works Act to erect the infrastructure on Bate Bay Road and, therefore, that insofar as reliance is placed on that Act, the erection of such works was unlawful at the time (and remains unlawful).

78 While there was debate as to whether the Lyons entities bore the onus of showing that the consent of the Governor was necessary (ie that this was a public highway or carriage road), for the reasons set out above the evidence in my view establishes that it was a public road. I do not see any basis for seeking to draw a distinction between a public road at common law and a “public highway or carriage road” for the purposes of s 86 of the Public Works Act. The terms “highway”, “street” and “road” seem in at least some contexts to be used interchangeably (see Mills v Selby [1971] VR 836).

79 Insofar as the Governor’s consent was required under s 86 of the Act, EnergyAustralia relies upon the presumption of regularity, citing Griffith CJ in McLean Bros & Rigg Limited v Grice (1906) 4 CLR 835 at 850, his Honour there approving the formulation of this presumption by Brewer CJ in Knox County v Ninth National Bank 147 US 91 at 97 (1893) that:

where an act is done which can be done legally only after the performance of some prior act, proof of the latter carries with it a presumption of the due performance of that prior act.

80 In Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164 McHugh JA, as he then was, stated the maxim as follows:

Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.

81 In response, the Lyons entities cited the decision of the High Court in Industrial Equity Limited v Deputy Commissioner of Taxation (1990) 170 CLR 649 at 671-2, where Gaudron J (who dissented in the overall result) said:

And, where the subject matter of a decision falls squarely within the terms of a statutory provision, then, in the absence of evidence establishing improper purpose or evidence displacing all possible permitted purposes, it must be accepted, simply because of the absence of such evidence, that the decision was made for a purpose for which such decisions might properly be made. It is only if the purpose attending the decision must be ascertained by inference from other facts that a presumption of regularity has a role to play. (emphasis per Mr Webster SC).

82 It was submitted for the Lyons entities that in the absence of evidence as to a decision being made under the Public Works Act (for consent under s 86 or otherwise) the principle of regularity does not arise.

83 However, the Industrial Equity Limited case was one in which the issue was as to the purpose for the making of the decision in question. I do not understand her Honour there to be suggesting that the presumption of regularity is only able to be called upon where the question is one as to the purpose for which a decision is made.

84 Here, in circumstances where a public authority (the Sydney County Council) exercised a power to install electricity infrastructure which (as the land was dedicated to public use) could only be installed under the Public Works Act with the Governor’s consent, it seems to me that the presumption of regularity does apply.

85 I note that EnergyAustralia further submits (by reference to s 86 of the Public Works Act) that any non-compliance would not necessarily deprive the constructing authority of the right to build and the landowner of the right to compensation, citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

86 In that regard I note that breach of the somewhat analogous requirement in s 18 of the 1896 Act would simply have had the consequence that the Sydney County Council might have been required to remove the infrastructure. Further, given the length of time since the (on this hypothesis, unapproved) installation, it is difficult to see what public interest there would be in now holding that breach of s 86 should render the installation unauthorised, particularly where (as the road was resumed or dedicated for public use) there would have been authority under the 1896 Act to carry out the works without the Governor’s consent in any event.

87 I have therefore concluded that EnergyAustralia had lawful authority to erect the electricity infrastructure in 1982/3 under one or both of the Public Works Act (s 80), as made applicable by the Local Government Act (s 383), and the 1896 Act (s 14), and thus the initial installation was lawful.

88 By implication, the legislation which authorised EnergyAustralia’s predecessor to install the electricity infrastructure must have authorised it to keep that infrastructure in place on the subject land at least until 1987 (when the 1896 Act was repealed) and more likely until 1990 (when s 80 of the Public Works Act ceased to apply to Sydney Electricity). It cannot have been intended that electricity infrastructure, which was lawfully installed one day, should become an unlawful trespass the instant it had been so installed.

89 The more difficult question is whether by 1990 (when Sydney Electricity had become the owner of the infrastructure but no longer had powers under s 80 of the Public Works Act), it became unlawful for Sydney Electricity to leave the installation in place without the benefit of an easement to do so.

90 The Lyons entities place weight on the fact that the 1990 Act, under which Sydney Electricity had power to install property on land (subject to the obligation to compensate parties for any damage so caused), contained no express power of “maintenance” in respect of any structures so installed on private land and hence from 1990 there was no power to leave the electricity infrastructure on the land (notwithstanding that it may have been lawfully installed in the first place) and from that date there was a continuing trespass. (That said, I note that there is at least a general power of maintenance in respect of buildings, plant, machinery, equipment and vehicles under s 6(1)(c) of that Act.)

91 EnergyAustralia’s first contention in response was that, if the structures were lawfully installed in 1982, no separate authority was required to “maintain” the structures on the subject land (using “maintain” in the sense of “leave in place” or “continue the presence of”), since the works in question were or should be regarded as fixtures or permanent structures on the land.

92 Reliance was placed in that regard on the dicta of Mahoney JA in the Court of Appeal in Gigli where his Honour, in the context of works carried out under s 80 of the Public Works Act, said that:

whether by the express terms of the sections or by implication, the works once constructed may be relevantly maintained in place by the Council and the plaintiffs would not be entitled to remove them.

93 As I understand it, EnergyAustralia submits that this was the case up until the closure of the road in 1992 and that thereafter the lawfulness of the presence on the land of a permanent structure or fixture did not alter when the land became Crown land, distinguishing in this regard between a right to maintain (or leave in place) a permanent structure erected on land and a right to enter onto land to repair or maintain that structure.

94 However, what this submission did not address was the difficulty recognised by Hodgson J (as he then was) in Thompson v Australian Telecommunications Commission (unreported, 18 July 1988; BC 8801729), namely that once the relevant authorising sections cease to apply (in the case of the Local Government Act in 1990 when the new Sydney Electricity was formed and, in the case of the 1896 Act, in 1987 once the Act ceased to apply to the subject land) they could no longer provide legal authority for the maintenance in place of the electricity infrastructure.

95 Thompson arose out of not dissimilar facts. There, the question was the authority of Telecom to maintain in place certain telecommunications cables. Authority to install the cables had previously rested with the Postmaster General under the Post and Telegraph Act 1901. Section 85 of that Act authorised the Postmaster General to cause to be set up or opened up or laid down and maintained a telegraph line. Hodgson J held that this authorised the Postmaster General not merely to install the underground cable but also gave to the Postmaster General “the right to leave the works in place”.

96 EnergyAustralia submits that s 85 is in material respects identical to s 14 of the 1896 Act, though (unlike the latter) it may not expressly extend to the right to preserve the works in place (which s 14 appears to do insofar as it includes the words “from time to time repair, alter or remove”). (To the extent that s 85 authorises the Postmaster General to cause to be “maintained” a telegraph line, it seems to me that this would be construed as extending to the right to preserve the line in place. However, nothing may turn on this point.)

97 As to whether the use of "maintain" in any of the relevant statues meant to “keep in order” or to "keep in place", in Thompson, Hodgson J appeared to accept the submission that at least a power to keep in place was implied by the power to install; when considering the defendant’s submission that the word “maintain” went further and extended to a power to keep in order.

Mr Hill QC for the defendant submitted that s85 authorised the performance of work on private lands. He submitted further that even if the word "maintain" in s85 had the meaning of "keep in order" rather than "keep in being", s85 implied a licence to keep any telegraph line, which had been erected or placed pursuant to the power in s85, in place after it had been so placed. Mr Hill in fact submitted that the preferable view was that "maintain", as used in the section, had the meaning of "keep in order" and in this regard he referred to Fairfax v Australia Telecommunications Commission [1977] 2 NSWLR 400 at 413.

98 However, the Post and Telegraph Act was repealed in 1975 by the Postal and Telecommunications Commission- (Transitional Provisions) Act 1975 which was accompanied by the passage of the Telecommunications Act 1975. Under the latter legislation Telecom assumed the property and functions of the Postmaster General. The relevant provision in the Post and Telegraph Act (which Hodgson J found to have given the Postmaster General the power to install and keep in place the cables) was not specifically replicated in the 1975 Acts.

99 Once the Act giving the power to install had been repealed, Hodgson J considered that there needed to be some further source of authority for the continued presence of the installation.

100 His Honour's ultimate conclusion was as follows:

There is, I think, some force in the submission that there is a gap in the Transitional Provisions, but on the whole I think the implication under the 1975 Act, that Telecom is to have the right to maintain installations taken over from the Postmaster General's Department in place on private lands is sufficiently clear. Telecom is in fact given property to the installations on private lands, the 1975 Act gives it the function and the duty to run a system which, at the time it was taken over, included those lines. Section 18 gives it the power to remove, replace, repair and maintain those installations. It also gives Telecom a power to occupy land for those purposes associated with removing, replacing, repairing and it maintaining installations. In my view, that is sufficient to imply a right in Telecom to maintain the installations on private land.

101 Section 18 of that Act provided that:

18. The Commissioner may, at any time, remove, replace or maintain -


(a) any telecommunications installation constructed above, upon or beneath the surface of any land or above or beneath the surface of any waters; or

(b) any line or other equipment affixed to any business or other structure erected on any land or any waters being a line or equipment for use in conjunction with a telecommunications service.

and for that purpose may enter upon and occupy that land and those waters and may remove or erect a gate or any fence hindering the exercise of such powers.

102 As it appeared to me that the analysis in Thompson was particularly apposite to the facts presently under consideration, I gave leave for further submissions to be served by both parties addressing that issue. Those submissions were served on 15 December 2008.

103 In his submissions for EnergyAustralia, Mr Leeming SC places weight on the provisions in the 1987, 1990 and 1995 legislation to which I have referred above which conferred on EnergyAustralia or its predecessors functions, powers and duties the counterpart to those relied upon by Hodgson J in Thompson. In particular, Mr Leeming refers to the provisions of each statute which refer in terms to “maintaining” works or facilities for the supply of electricity.

104 Mr Webster, on the other hand, submits that a close comparison between the Electricity Supply Act 1995 and the Telecommunications Act 1975, and the transitional Acts relating to both pieces of legislation, and the lack of any equivalent in the Sydney Electricity Act to s 18 of the Telecommunications Act to which Hodgson J had expressly referred, means that there is nothing in the 1995 legislation which gives a right on the part of EnergyAustralia to “maintain” all existing electricity installations (on private land).

105 Reference was made in that regard to s 45 (set out above), s 51 and s 54 of the Electricity Supply Act. Section 54 provides as follows:

Section 54(1) POWERS OF ENTRY
(1) An authorised officer of a network operator may enter upon premises for the purpose of exercising any function conferred or imposed on a network operator by or under this or any other Act or law, including
…
(b) Installing, extending, maintaining , repairing or removing electricity works or
…

(1A) An authorised officer of a retail supplier may enter the premises of a customer for the following purpose in respect of electricity works prescribed by the regulations:
…
(b) installing, extending, maintaining , repairing or removing electricity works. (my emphasis)

106 Mr Webster submits that the word “maintaining”, when used in s 54(1)(b) and in s 54(1A)(b), refers to the works “installed” under that Act, not to works otherwise (or earlier) installed. I do not accept that submission. Section 54 gives a power of entry “for the purpose of exercising any function conferred or imposed on [EnergyAustralia] under this or any other Act or law”, including maintaining “electricity works”. The Sydney Electricity Act had vested in Sydney Electricity (EnergyAustralia’s relevant predecessor) all the assets of Sydney County Council (which must have included the electricity infrastructure in question) and gave it the function of the provision and maintenance of works for the supply of electricity. This position continued in 1995.

107 MetNorth, and MetNorth Energy in turn, clearly had the function of maintaining both existing and any new facilities for the distribution of electricity (see in the case of MetNorth Energy s 9(2) Energy Services Corporation Act 1996). I see no basis for confining the powers of entry in s 54 to purposes connected with electricity works installed pursuant to that legislation (as opposed to electricity works already installed on private lands and vested in MetNorth Energy).

108 It is submitted by Mr Webster that the perceived lacuna in the Sydney Electricity Act (namely, as to the right to maintain existing installations) is made evident by the comparison of the provisions within both the telecommunications legislation and of s 37 of the Sydney Water Act.

109 However, s 37(2) of the Sydney Water Act (unlike s 54 of the Electricity Supply Act) is not a provision which contains a power both to install and to maintain. It is limited to what can, in effect, be done with works already installed. Section 54 is not so limited. It also authorises installation of works. If s 54 were intended to have been limited to powers of entry to install works and, once installed, to maintain those (and only those) works, it could easily have said so. Rather, the power of maintenance is included in the same clause as the power of installation as a separate power and could on its face extend both to existing and future works.

110 What seems to be required, (adopting the test in Thompson), in the absence of an express provision, is to ascertain whether there is a legislative intention that EnergyAustralia (or its predecessors) at the relevant time have the right to maintain in place electricity installations on private lands. The indicia of such a legislative intention in Thompson were the proprietary ownership of the installations on private lands, coupled with the function and duty to run a system which included those installations.

111 I consider that the Sydney Electricity Act, by giving Sydney Electricity the function of "the provision and maintenance of works for the supply of electricity" (s 5(1)(b)) and by transferring to it the assets of Sydney County Council (Schedule 5 s (4)) (which included the electricity infrastructure), demonstrated sufficient legislative intention that Sydney Electricity have the authority to maintain those assets in place where they had previously been lawfully installed, notwithstanding the absence of an express power of entry onto private lands for that purpose.

112 Even, if there were some question as to the position between 1990 and 1995, the 1995 legislation in my view clearly authorises entry onto lands for the purposes of maintaining electricity works and is not limited to entry onto public land.

113 While there is no exact equivalent of s 18 (which gave Telecom an express power to maintain telecommunications installations on any land), s 54(1) of the Electricity Supply Act clearly gives EnergyAustralia the right to enter premises for the purpose of exercising its functions in relation to the supply of electricity, including “maintaining” electricity works. I consider that to be sufficient indication of legislative intention for present purposes.

114 Therefore, even if the SydneyElectricity Act 1990 did not by implication do so, in my view, the Electricity Supply Act (by vesting ownership of the electricity infrastructure in EnergyAustralia (s 51) and by giving EnergyAustralia the power to enter onto premises, inter alia, to maintain electricity works for the purposes of exercising its functions under that or any other Act in circumstances where one of the principal statutory functions of EnergyAustralia was to establish, maintain and operate facilities for the distribution of electricity (s 9(2) Energy Services Corporations Act 1995)), impliedly conferred on EnergyAustralia a licence to keep in place not only any electricity infrastructure installed by it under the Act but also electricity infrastructure lawfully installed by its predecessor, even where that infrastructure was on private land.

586 EnergyAustralia submits (relying on the evidence of Mr Nash and Mr Lunney) that the subject land could not have been developed into two fast food outlets because of constraints caused by the characteristics of the land and the applicable planning regime, (including the FBL, zoning constraints and difficulties with access). It is therefore submitted that no development application lodged with the Council prior to 12 December 2000 (of the kind Mr Lyons says he intended) would have been successful.

587 I have already considered the issues raised by both parties as to the existence and/or scope of the FBL restrictions at the relevant time(s) and have made reference to the other potential constraints affecting development of the land including the zoning issues. There is in my view a real issue as to whether a development consent would have been obtained for fast food restaurants at the relevant time (whether or not such a development would have been feasible), irrespective of the other development constraints.

588 Energy Australia further contended in relation to the position pertaining after July 2003 that the presence of the electricity infrastructure would not necessarily have prevented a development consent being obtained conditional on removal of the poles and therefore that it was at all times open for Mr Lyons to seek a deferred commencement consent (something which Mr Edmonds conceded could have been granted if an undertaking to remove the infrastructure within a certain time had been given).

589 In the context of a deferred commencement application, Mr Webster submitted that the “finality concept” (Proprietors of SP 13318 and 13555 v Lavender View Regency Pty Limited (1997) 97 LGERA 337) means that the Council would have needed all material before it as would enable it finally and properly to consider the effect of an application and that without information as to how the proposed new installation would affect the subject land and any development of the subject land, the Council would not approve any development of the subject land. It was said that any consent where the condition of consent left open the possibility that compliance might thereafter alter the nature of the development, would be invalid (Levenstrath Community Association Inc v Tomies Timber (2000) 108 LGERA 176).

590 If the submissions made by the Lyons entities in relation to the unavailability of a deferred commencement consent are correct, the presence of the electricity infrastructure as at July 2003-April 2004 would have made the development application even more complicated and less likely to be completed in the time available.

591 In any event, in my view the real difficulty with the Lyons entities’ claim in this respect is that the actionable misrepresentation occurred in July 2003. Even if a development application had been lodged in July 2003 (on the assumption that no misrepresentation had been made and that the Lyons entities had therefore proceeded immediately to obtain a development application with a view either to refinancing or sale so as to forestall action by the mortgagee), it is not likely that the development application would have been finalised in under 12 months.

592 Mr Lyons conceded in cross-examination that this would have been a tiresome and costly process, and one which would probably be slow and was likely to involve a trip to the Land and Environment Court. Had such a process been commenced in July 2003, there could be no confidence that it would have been completed successfully before the property was sold in April 2004, and hence in time for a mortgage valuation to be obtained for refinancing the property on the basis that it had the benefit of an approved development application. Mr Nash’s evidence was that 12 months was a more reasonable estimate for a development approval (as was Mr Shiels’ estimate back in 1998).

593 Mr Nash’s first report noted that Sutherland Shire Council had, over recent years, been one of the slowest councils in the benchmarking of assessment time for development applications – an average generally in excess of 100 days. He expressed the opinion that it would not be unusual for the assessment process for any development application under s 90 of the Environmental Protection Agency Act 1979 requiring referral to relevant government agencies to take up to 12 months.

594 Accordingly, I consider that even if there had been no misrepresentation, the prospects of the Lyons entities obtaining a development application in time to refinance or achieve a sale at a higher price (so as to avert the mortgagee sale process), had the process begun in July 2003, to be minimal.

595 Further, had it been necessary to make such a finding, I would have been of the view that the existence of the infrastructure was not the real cause of Mr Lyons’ delay in making any development application for the subject land either for the period up to the making of the misrepresentation or afterwards.

596 Rather, it seems to me that the evidence establishes that Mr Lyons never intended that his companies themselves would develop the land and that he was reluctant to incur the costs of what he anticipated would be a lengthy process to seek development approval, so left any development application as a fallback or last resort.

597 The final step in the chain of loss is that pleaded in 19(f). The Lyons entities in effect claim by way of loss of the opportunity to sell the subject land for “market value”.

598 However, if the Lyons entities had proceeded to put the land up for sale in July 2003 (or September 2003 or indeed any time from July 2003 to the date of the mortgagee sale in April 2004) while the electricity infrastructure was still in place, there is nothing to suggest that a higher price would have been obtained than that which was ultimately obtained in April 2004.

599 Any prospective purchasers who were reluctant to buy in April 2004 based on the existence of the electricity infrastructure would surely have been in the same position as at July 2003. True, the subject property might have been able to be marketed otherwise than as a mortgagee sale, but there is no evidence that the ultimate purchaser would have paid more had it not been a mortgagee sale.

600 The first time at which both experts agree that the FBL restriction was ameliorated was 20 January 2004. Prior to that, even if (as the Lyons entities contend) the correct construction of the LEP was that a 7.5 metre FBL applied, there would have been sufficient doubt as to this issue to put a prospective purchaser on notice of potential problems for any development of the subject land if that restriction applied. If the 30 metre FBL applied then the part of the subject land able to be developed was considerably reduced. A SEPP variation application could have been made. However, despite Mr Lyons’ confidence as to the outcome of such variation I think a prospective purchaser would not assume that such a variation would be granted and would take that into account when determining what price it would pay for the land. Once the January 2004 change to the applicable FBL occurred, the value of the land would not have been subject to the same level of discount. However, there were still development constraints affecting the land.

601 I note the evidence of Mr Edmonds that most potential purchasers, seeing the infrastructure, would not have been interested in the site and would not have progressed to the stage of making enquiries. Mr Edmonds says, that work for the removal of the poles did not commence until 30 April 2004. He was of the opinion that (presumably at all times up until then) prospective purchasers would have been dissuaded by the presence of the poles. If so, it seems unlikely that the property would have been sold in the period from July 2003 for much (if at all) more than the $600,000 in fact realised the following year by way of the mortgagee sale.

Conclusion as to damages for misleading and deceptive conduct

602 In the end the extent to which there were development constraints affecting the land is not critical to the question of damages for the misleading and deceptive conduct which occurred because the relevant representation I have found is that which was made in July 2003, (namely that the electricity infrastructure would be relocated in or by early September 2003.) By 16 September 2003 (and certainly by the end of September 2003) the Lyons entities were aware that the infrastructure had not been removed.

603 The Lyons entities did not in reality lose the opportunity to develop the subject land or to obtain a valuation to refinance the land by reason of the misrepresentation. They either had no real opportunity to do so in the time available (in the case of the development consent) or believed that any such steps would be futile (in the case of the refinancing). They chose not to take those steps after September 2003 at a time when they could no longer have place reliance on the July misrepresentation.

604 On the submissions put to me by Mr Webster in relation to the effect of the presence of the infrastructure on the ability to obtain a development consent, the Lyons entities cannot, by relying on the representations and deferring any application for development consent between July 2003 and September 2003 (or for that matter until April 2004), have lost any realistic opportunity to obtain a development consent, even had there been sufficient time for that process to be completed (which seems unlikely) before the mortgagee sale.

605 Of the actions said to have been taken in reliance of the misrepresentation (pleaded in paragraph 19 and the consequence of which is pleaded in paragraph 25), I am of the view that:

(a) & (b) no loss has been suffered by reason of the delay in commencement of proceedings for trespass, as there was no trespass and no order would have been obtained;

(c) & (d) the presence of the electricity infrastructure did not preclude the Lyons entities from obtaining valuation or raising finance. There was no real attempt to do so. Neither Mr Edmonds nor Mr Lunney considered that the infrastructure precluded raising finance. Mr Calleia asserted that the Lyons entities could have called upon intercompany loans for what he described as operational expenditure. Mr Lyons said his co-director (Mr Muhs) had the capacity to provide funding but he did not wish to ask him to do so. It would appear on that basis that the Lyons entities could have avoided a mortgagee sale in April 2004 had they wish to do so. I am not satisfied that had the misrepresentation not been made steps would have been taken between July and September 2003 to obtain a valuation and raise finance;

(e) I am not satisfied that any attempt would have been made in the period from July 2003 to April 2004 (but for the misrepresentation) to obtain development consent. Mr Lyons was reluctant to incur costs in that regard. On his experts’ own evidence he would not have been able to obtain consent while the electricity infrastructure was in place. The evidence is that it is highly unlikely that any development consent could have been obtained in under a 12 month period.

(f) For the reasons set out above, a sale between July 2003 and April 2004, with the benefit of a development consent and without the electricity infrastructure in place was not feasible.

606 Therefore, I find that the Lyons entities suffered no loss as a result of the misleading and deceptive conduct by EnergyAustralia in July 2003.

607 I dismiss the plaintiffs’ claim.

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