Shapkin v The Council of the City of Sydney

[2020] NSWLEC 1309

Land and Environment Court

New South Wales

Medium Neutral Citation:

Shapkin v The Council of the City of Sydney [2020] NSWLEC 1309

Hearing dates:

26 February 2020

Date of orders:

17 July 2020

Decision date:

17 July 2020

Jurisdiction:

Class 2

Before:

Dixon SC

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   The purported instruments of revocation on 2 August 2019, 6 August 2019 and 30 October 2019 are cancelled.

(3)   The exhibits are returned, except for Exhibits B, 3 and 4.

Catchwords:

APPEAL – busker permit – revocation – proper notice

Legislation Cited:

Land and Environment Court Act 1979

Local Government Act 1993

Texts Cited:

City of Sydney Council, ‘Local Approvals Policy for Busking and Aboriginal and Torres Strait Islander Cultural Practice’

Category:

Principal judgment

Parties:

Vasiliy Alexandrovich Shapkin (Applicant)
The Council of the City of Sydney (Respondent)

Representation:

Counsel:
V Shapkin (Litigant in person) (Applicant)
M Mallos (Solicitor) (Respondent)

Solicitors:
Maddocks (Respondent)

File Number(s):

2019/347476

Publication restriction:

Nil

Judgment

1. The applicant, Vasiliy Alexandrovich Shapkin is a professional musician and a professional busker violinist. He derives his principal income from busking in the Sydney CBD pursuant to busking permits issued by the City Council under s 68 of the Local Government Act1993 (“LG Act”).

2. These proceedings arise under s 178(2) of the LG Act, in response to the Council’s revocation of the applicant’s Busking Permit No. 450/2019 (“Busking Permit”). The applicant contends that the revocation of his Busking Permit was actioned without proper notice and/or compliance with ss 108, 109 and 110 of the LG Act.

3. The Council submits on its evidence that written notice under the LG Act was given to the applicant by email on 6 August 2019, and a “show cause meeting” with the applicant was held on 20 August 2019. The notice of revocation was then determined and communicated on 30 October 2019 (Tcpt, 26 February 2020, pp 37-38(5-50)).

Decision

4. For the reasons that follow, I have determined that the evidence does not support the Council’s version of events. In short, there was no proper notice given to the applicant before the Council’s decision to revoke the applicant’s Busking Permit. In those circumstances, the appeal must be upheld, and the instrument of revocation cancelled.

Statutory framework

5. This appeal falls within Class 2 of the Court’s jurisdiction by operation of s 18 of the Land and Environment Court Act1979. The decision from which the appeal is brought and the Act or instrument under which the proceedings are brought, is described in the Class 2 application as:

“Appeal against and objection to a Council of the City of Sydney determination to revoke, modify, and/or permanently suspend a busking permit/licence on 2 August 2019, 6 August 2019, 8 August 2019, 30 October 2019

Section 18(a) of the Land and Environment Court Act 1979

Section 178 (1) of the Local Government Act 1993”

6. The orders sought are:

“1. Pursuant to section 178(3) of the Local Government Act 1993 (NSW) an Order varying or cancelling the instruments (s) of revocation or modification of 2 August 2019, 6 August 2019, 8 August 2019, 30 October 2019.

2. Any other Order which this Court deems fit or necessary”.

7. The revocation of a busking permit is authorised under the LG Act subject to compliance with certain provisions.

8. Sections 108, 109, 110 and 178 of the LG Act relevantly provides:

108 Can approvals be revoked or modified?

(1) A council may revoke or modify an approval in the circumstances set out in section 109.

(2) A modification may take the form of the imposition of an additional condition or the variation or rescission of a condition to which the approval is subject.

(3) Notice of a revocation of an approval or a modification of an approval that restricts or reduces the authority conferred by the approval may be served on any person who appears to the council to be acting under that authority or to be entitled to act under that authority.

(4) A revocation or modification takes effect on the date of service of the notice of the revocation or modification or a later date specified in the notice.

(5) At the same time as or as soon as practicable after the notice of the revocation or modification is served, the council is required to send—

(a) a copy of the notice to each person who, in its opinion, is likely to be disadvantaged by the revocation or modification, and

(b) a copy of the notice and the reasons for the revocation or modification to the Building Services Corporation, if the approval is for—

• the transfer, alteration, repair or extension of water service pipes, or

• the carrying out of sanitary plumbing work, sanitary drainage work or stormwater drainage work.

(6) This section does not apply to an approval granted by the Land and Environment Court.

109   In what circumstances can an approval be revoked or modified?

An approval may be revoked or modified in any of the following circumstances—

(a) if the approval was obtained by fraud, misrepresentation or concealment of facts,

(b) for any cause arising after the granting of the approval which, had it arisen before the approval was granted, would have caused the council not to have granted the approval (or not to have granted it in the same terms),

(c) for any failure to comply with a requirement made by or under this Act relating to the subject of the approval,

(d) for any failure to comply with a condition of the approval.

110 Notice to be given of proposed revocation or modification

(1) Before revoking or modifying an approval, the council must inform, by notice—

(a) each person who, in its opinion, will be disadvantaged by the revocation or modification of the approval, and

(b) each person and authority whose concurrence was required to the granting of the approval.

(2) The notice must include the council's reasons for revoking or modifying the approval.

(3) The council must give those persons and authorities the opportunity of appearing before the council (or a person appointed by it) to show cause why the approval should not be revoked or modified.

178 Appeal against the revocation or modification of an approval

(1) If an approval is revoked or modified under section 108, the applicant for the approval may appeal to the Land and Environment Court.

(2) The appeal must be made within 3 months after the date on which the revocation or modification takes effect.

(3) The Court may determine the appeal by affirming, varying or cancelling the instrument of revocation or modification.

The Busking Permit

9. The Busking Permit at issue is a “Low impact permit” granted under the Council’s City of Sydney Local Approvals Policy for Busking and Aboriginal and Torres Strait Islander Cultural Practice (“Local Approvals Policy”). The Busking Permit was approved on 3 July 2019 and expired on 3 July 2020. (I note that the lodgement of this appeal does not act as a stay against the expiry of the Busking Permit).

10. When applying for the Busking Permit, the applicant agreed to comply with several conditions – the following of which are relevant:

• “…read and abide by the City of Sydney Local Approvals Policy for Busking and Aboriginal and Torres Strait Islander Cultural Practice...

• …display my City of Sydney Permit to Busk in a prominent position at all times …

• …ensure that my busking performance cannot be heard more than 50 metres from where I am busking.”

11. Much of the evidence relied upon by the Council relates to earlier Busking Permits issued to the applicant under a different local government policy:

• Permit 62/2017 - issued 2 January 2018 and expiring on 2 January 2019

• Permit 32/2019 - issued 10 January 2019 and expiring on 3 July 2019

12. For example, in Ms Melanie Penicka-Smith’s affidavit of 18 February 2020 (“Penicka-Smith affidavit”), she refers to correspondence exchanged between the applicant and Council in relation to incidents in 7 September 2018 and subsequent meetings with the applicant and Mr Rugg, (Council’s Manager of the Venues Management Team) file notes, including an email dated 27 September 2018 wherein Mr Rugg records that the applicant is placed on a probation period after warnings. She also refers to an earlier noise assessment by a former Council officer, Mr Aubrey, on 28 September 2018 – when the applicant acknowledged he breached the former noise guideline during probation period (email dated 18 December 2018 (Annexure “F” to the Penicka-Smith affidavit)). The affidavit also details complaints of further noise breaches on 22 and 23 December 2018 – again under the old Permits; and finally, relevantly, the incident on 2 August 2019, said to found the revocation of the applicant’s Busking Permit (450/2019) the subject of this appeal.

13. However, as the applicant correctly identifies these historic, earlier breaches and warnings given to the applicant under now expired Permits cannot found the revocation the subject of this appeal because they do not relate to the Busking Permit which is the subject of this appeal. They are breaches more than 8 to 11 months old (as of August 2019), and thereby outside the statutory limitation period within which to bring an appeal, or to cancel, vary or affirm a decision under subss 178(1) and 178(3) of the LG Act (Exhibit E – applicant’s document styled Notice of objections). At best they may be relevant in the exercise of the Court’s discretion when considering the merits as to whether the revocation should be affirmed, varied or cancelled.

14. In this case, the central question is whether the decision to revoke the Busking Permit, based on the breaches said to have occurred on 2 August 2019, was made after the requisite notice had been given under s 110 of the LG Act.

15. In that regard, the Council submits that its email to the applicant dated 6 August 2019 is the notice it relies upon for the purpose of s 110 to found its decision to revoke the Busking Permit. At the time when the notice was given to the applicant, it appears the applicant’s current Busking Permit had already been suspended on 2 August 2019 without warning/notice, based on the breach of conditions that had been imposed on his previous and expired Busking Permit 32/2019. The Council’s email dated 2 August 2019 is set out below.

“Dear Vasiliy,

Thank you for your time this afternoon.

As we discussed, your playing could be heard more than 50m from the southern building pitch on Pitt Street Mall. In our discussion you admitted that you wear earphones because the bass beat and high frequencies from your playing and amplification hurt your ears.

When we spoke this afternoon you claimed not to know anything about the new policy and permit system. However, on 3 July 2019 you applied for a new busking permit which was issued under the new policy. A copy of your application form is attached.

In Part 6: Applicant declaration you agreed to:

• Display your City of Sydney busking permit at all times, and

• Ensure that your busking performance cannot be hear more than 50m from where you are busking.

Your busking permit was not on display and when I asked to see it you provided your old permit 32/2019/GEN12

Your busking performance could be heard outside Chemist Warehouse, 249 Pitt Street, Sydney, approximately 138m from the southern busking pitch on Pitt Street Mall.

In addition, under the new policy, a low impact act uses less than 2m². Your set up this afternoon occupied approximately 6m².

The Rangers have been advised of your permanent suspension.

Regards

Melanie”

(Email dated 2 August 2019 – extracted from the affidavit of Melanie Penicka-Smith dated 18 February 2020, Annexure “I”)

Notice relied upon by the Respondent (dated 6 August 2019)

16. Leaving aside the legality of the purported suspension of the Busking Permit on 2 August 2019, without notice, and turning to the emails of 6 August 2019 relied upon as notices under s 110 of the LG Act – the first email is from Ms Penicka-Smith and provides:

“Dear Vasiliy,

Thank you for your email.

To clarify – the new busking policy came into effect on 1 July 2019. All buskers with a valid and current email address were notified of the new Policy and permit system on 20 June 2019.

All buskers have until 30 August to apply for a new permit. You applied for a new permit on 3 July 2019. Please refer to the attachment which includes the photo ID you presented at application. In signing the applicant declaration, you agreed to ensure that your busking performance could not be heard more than 50m from where you are busking.

You collected a re-issued a low impact permit from Customer Service on Friday 2 August. That permit number is 447/2019.

On Friday 2 August your busking performance could be heard more than 50m from where you were busking. As you are on your 2^nd and final warning, formally notified to you on 17 January 2019 (refer attached email), you are now permanently suspended.

Peter summarised the conversation in an email to you dated 17 January 2019, a copy of which I provided to you again on 2 August 2019. The relevant section is copied below.

The outcome of that meeting was:

• You are now being formally notified that you are on a 2^nd and last warning.

• This Last Warning will remain in effect for the next 12 months, effective as of today until the 17^th of January 2020.

• If there is a 3^rd breach (of any kind) during this period, the result will be that your permit will be permanently suspended and you will not be permitted to reapply for a permit again with the City of Sydney.

• Prior to the Last Warning period concluding the City will review the situation at that time and reserves the right to impose any other conditions it deems necessary to ensure adherence to the guidelines

The Rangers have been notified

Regards

Melanie”

(Email dated 6 August 2019 – extracted from the affidavit of Melanie Penicka-Smith dated 18 February 2020, Annexure “K”)

17. The second email is from the Council’s officer Mr Marshall and provides:

“Dear Vasiliy,

I am responding to confirm the current position relating to your busking permit for the City of Sydney and to clarify areas in question as raised below, after which time, we will not enter into further debate on.

On 10^th January 2019 you met with myself and Peter Rugg in response to breaches of your permit and the requirements for busking within the City of Sydney. At this meeting it was clearly explained and agreed that you had indeed breached the conditions of your busking permit again and were issued a second and final warning.

The conclusion of this meeting was provided to you in writing by Peter Rugg on 17^th January 2019 as attached.

As discussed in person with yourself on 10^th January 2019 and stated in writing within the attached issued on 17^th January 2019 the outcomes were as per below:

• You are now being formally notified that you are on a 2^nd and last warning.

• This Last Warning will remain in effect for the next 12 months, effective as of today until the 17^th of January 2020.

• If there is a 3^rd breach (of any kind) during this period, the result will be that your permit will be permanently suspended and you will not be permitted to reapply for a permit again with the City of Sydney.

• Prior to the Last Warning period concluding the City will review the situation at that time and reserves the right to impose any other conditions it deems necessary to ensure adherence to the guidelines

You have subsequently been found to be in breach again within this final warning period which as advised will now result in your busking permits being permanently suspended.

The recent breaches as advised by Melanie Penicka-Smith in person at the time of the incident and in writing as per below were noise related breaches and not displaying your permit. These requirements have been discussed with you previously and are stated on the busking permit application form of which you sign on submission for the busking permits.

In regard to requirements under Section 110, this email and previous emails in this chain form part of this notification process to confirm the revocation of your busking permits for City of Sydney land.

In line with the requirements of Section 110, you are able to attend a meeting at the Town Hall to discuss the revocation if you wish to do so.

I must confirm again for clarity that you are no longer permitted to busk on any areas of City of Sydney land. Your busking licenses have been advised to the Rangers who will enforce the revocation if you are found to be performing in contravention of this notice.

It is the responsibility of all buskers within the City of Sydney to ensure that their conduct remains within the associated regulations and requirements of such a permit at all times. The City of Sydney works hard to ensure that licensed busking is a fair and supported activity within the LGA and we are responsible for ensuring that the conduct of all does not negatively affect the busking and wider community. Where continued breaches occur with a licensed busker we must take appropriate act ion to ensure these requirements and expectations are upheld for all.

In line with Section 110, if you wish to attend a meeting at the Town Hall to discuss why your permit should not be permanently revoked then you will need to propose a date and time within the next 14 days (21^st August 2019).

Until such a meeting has occurred and if you do not wish to attend a meeting as offered you will not be permitted to perform on any City of Sydney land.

The revocation of the City of Sydney busking permit relates only to land under the ownership and/or care and control of the City of Sydney Council and does not relate to any land outside of the LGA or under separate ownership.

Please note, there will be no further response on the matters previously discussed from here on other than confirming your request or denial for a meeting at Town Hall between now and the 21^st August 2019.

Regards

Simon”

(Email dated 6 August 2019 – extracted from the affidavit of Melanie Penicka-Smith dated 18 February 2020, Annexure “L”)

18. Relevantly, the email notice does not notify of a proposed revocation or modification of the applicant’s Busking Permit as required by s 110. Instead, the notice email informs the applicant that his Permits are revoked, and that the rangers have been advised. The offer of a meeting in Mr Marshall’s email after the revocation is clearly at odds with the terms of s 110(3) which directs Council to notify the opportunity of appearing before the Council to show cause why the approval should not be revoked or modified.

19. Despite the revocation of the Busking Permit communicated on 2 and 6 August 2019, the Council maintains that on 20 August 2019, the applicant attended a show cause meeting as required under s 110(3) of the LG Act and after that, the formal revocation was communicated in the following email on 30 October 2019.The revocation letter is set out below.

Revocation letter dated 30 October 2019

“Dear Vasiliy,

I apologise for not being in touch with you sooner regarding the outcome of your show cause meeting from August.

Since our meeting and your subsequent emails I have sought legal advice concerning the matter and have been advised that the City has met its obligations in regards to notification and is within its rights to revoke your permit in light of the breaches.

During the show cause meeting on August 20^th 2019 you stated that on August 2^nd 2019 you did increase the volume of your equipment due to increasing noise. During the meeting we discussed your interpretation of volume and noise, however it was reiterated that the City had undertaken a practical demonstration with you in September 2018 and provided guidelines for how you should be assessing if your performance was too loud.

On August 2^nd, the noise from your performance was assessed by the City as being excessive due to the fact that it could be heard a considerable distance from where you were performing, and therefore did constitute a breach.

In line with previous communication from January 2019 concerning the 12 month probation period and the consequences of any further breaches; your permit is permanently suspended and you are not permitted to busk on the City of Sydney's Land.

Failure to comply may result in the City issuing you infringement penalties or taking further action.

In light of the above I would recommend familiarising yourself with locations in the City's LGA which are not under the City's jurisdiction. A helpful map can be found here.

Vasiliy, I am sorry that this is not the outcome you were hoping for, but do wish you luck in your future endeavours.

Kind regards,

Peter”

(Email from Peter Rugg, dated 30 October 2019 – extracted from the affidavit of Peter Rugg dated 18 February 2020, Annexure “J”)

20. As the Council acknowledges this email notice of 30 October 2019 sent by Mr Rugg to the applicant is to the effect that the Busking Permit is “permanently suspended”. The Council does not submit that the revocation can last in perpetuity but does say that the email referred to constitutes the revocation the subject of the proceedings. The Council relies on ss 108-110 of the LG Act as the basis on which the Busking Permit was revoked. It submits, that the Busking Permit, being an approval issued pursuant to s 68 was revoked by the Council pursuant to s 108 of the LG Act, in the circumstances set out in s 109 of the LG Act. Section 110 of the LG Act requires that notice must be given to the permit holder. Noting that by operation of s 108(3), a revocation or modification takes effect on the date of service of the notice of the revocation or modification or a later date specified in the notice.

Consideration

21. In this case, I do not need to consider whether the circumstances outlined in s 109 of the LG Act exist, and that the revocation of the Busking Permit should be affirmed, or otherwise because I am not satisfied on the evidence as outlined above that the applicant was given notice as required by s 110(3) of the LG Act before the revocation of his Busking Permit. (Accepting in this case that email notification was the accepted form of communication under the LG Act).

22. While the terms “suspension” and “revocation” appear to be interchangeable as far as the Council is concerned – even accepting that a “suspension” is a “modification” of a Busking Permit, s 110 required written notification of the intention to suspend the applicant’s Busking Permit before proceeding to impose such suspension.

23. The evidence is that on 2 August 2019, the day of the alleged breaches of his current Busking Permit, the Council by email informed the applicant that his Busking Permit was suspended, stating that “The Rangers have been advised of your permanent suspension”. This decision to suspend without notice or opportunity to appear before the Council to show cause why the approval should not be revoked or modified appears to breach the requirements in s 110(3).

24. Next, on 6 August 2019, the Council sent two emails to the applicant. The email from Ms Penicka-Smith (Penicka-Smith affidavit, Annexure “K”, folio 49) advised that as the applicant’s busking performance could be heard 50m from where he was busking, and he was already on a second warning and this was his third breach during a period from 17 January 2019 to 17 January 2020, his permit was permanently suspended and he will not be permitted to reapply for a permit again in the City of Sydney.

25. A second email from Simon Marshall also dated 6 August 2019, referring to the breaches referred to in Ms Penicka-Smith’s emails of that date confirmed the permanent suspension of his Busking Permits. The email refers to earlier discussions about breaches of conditions and warnings (under old Permits) and that this email and previous emails in this chain form part of this notification process to confirm the revocation of the applicant’s busking permits. It then states “In line with the requirements of Section 110, you are able to attend a meeting at the Town Hall to discuss the revocation if you wish to do so”. The email then states, by way of clarification “… you are no longer permitted to busk on any areas of the City of Sydney land. Your busking licenses have been advised to the Rangers who will enforce the revocation if you are found to be preforming in contravention of this notice”.

26. The applicant has filed various emails, and extensive documents and reports on USBs in response to the Council’s evidence raising issue, amongst other things, with the purported imposition of conditions, arguing that a warning period is not a modification under the LG Act, and in any event it cannot be imposed without notice, without complying with ss 108 and 109 of the LG Act (Penicka-Smith affidavit, Annexure “K”, folio 49).

27. Based on Ms Penicka-Smith’s affidavit, the Council contended that notice was provided on two occasions. Firstly, on 17 January 2019 when Mr Rugg corresponded with the Applicant to confirm the outcome of a meeting held on 10 January 2019, namely: that any further breach by the applicant of the conditions of a permit would result in revocation; secondly, by email on 6 August 2019. The Council maintains that on 20 August 2019, the applicant attended a show cause meeting as required under s 110(3) of the LG Act. At that time the applicant was able to make representations at the meeting, as to why the Busking Permit ought not to be revoked. On that basis, the Council submits that it has discharged its duties with regard to procedural fairness.

28. After that meeting the formal revocation was communicated in the email sent to the applicant on 30 October 2019. This notice starts with an apology for delay in responding to the show cause meeting on 20 August 2019. It then sets out the breaches of the conditions of the Busking Permit on 2 August 2019 and refers to the probation period from January 2019 (arising under an older permit), and advises the applicant that “…his permit is permanently suspended and [the applicant is] not permitted to busk in the City of Sydney’s Land. Failure to comply may result in the City issuing … infringement notices or taking further action”.

Findings

29. Even accepting the Council’s version of events which are generally disputed by the applicant – having failed to notify the applicant of the proposed modification and/or revocation of the Busking Permit before the first suspension on 2 August 2019, and the next on 6 August 2019, (noting the word “suspension” is used interchangeably with “revocation” in the Council’s emails of 2 August, 6 August and 30 October 2019), it follows that the notification process mandated by s 110(3) was not followed. The applicant has not been allowed to busk in the City from 2 August 2019 as his Busking Permit at that time was suspended under the Council’s notice and the rangers informed not to allow him to busk. There can be no dispute that the effect of the notice of 6 August 2019 was to inform the applicant of the actual suspension or revocation of his Busking Permit and was not notice, as the Council submits of the proposed revocation or modification – mandated by s 110(3) of the LG Act. The subsequent emails sent to the applicant again communicated suspension/revocation effective without notice. The meeting on 20 August 2019 post-dated notice of the suspension or revocation contrary to the requirements of s 110(3) which require notice and a right to be heard at a show cause meeting prior to a decision under s 109.

30. For those reasons, the appeal is upheld and the purported instruments of revocation on 2 August, 6 August and 30 October 2019 are cancelled.

31. Having formed the view that proper notice was not given, I do not need to consider the evidence of breaches of the Busking Permit 450/2019 conditions namely:

• failed to display his permit in a prominent position;

• played in a manner such that his performance could be heard more than 50m away; and

• failed to abide by the Local Approvals Policy.

32. The Council submits that the circumstances outlined in s 109(d) have been made out on the evidence of Ms Penicka-Smith and Mr Rugg because the applicant has breached one or more of the conditions of the Permits. That may well be the case but unless the notice is one given in accordance with s 110(3), it is not one that I have power to confirm under s 178(3).

Orders

33. The Court orders that:

1. The appeal is upheld.

2. The purported instruments of revocation on 2 August 2019, 6 August 2019 and 30 October 2019 are cancelled.

3. The exhibits are returned, except for Exhibits B, 3 and 4.

………………………

S Dixon

Senior Commissioner of the Court

**********

Decision last updated: 17 July 2020