Wecker v Blue Mountains City Council
[2003] NSWLEC 211
•08/13/2003
>
Land and Environment Court
of New South Wales
CITATION: Wecker v Blue Mountains City Council [2003] NSWLEC 211 PARTIES: APPLICANT:
Paul J WeckerRESPONDENT:
Blue Mountains City CouncilFILE NUMBER(S): 10849 of 2002 CORAM: Lloyd J KEY ISSUES: Appeal :- section 56A - no error of law - costs LEGISLATION CITED: Administrative Decision (Judicial Review) Act 1977 (Cth) s 5(1)
Environmental Planning and Assessment Act 1979 s 72, s 121B
Land and Environment Court Act 1979 s 39(2), s 39(3) and s 56A
Local Government Act 1993 s 69 and s 164CASES CITED: Coffs Harbour Shire Council v Ben Hall Industries (1983) 48 LGRA 391;
Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416;
Wecker v Blue Mountains City Council, NSWLEC, 28 February 2003, Commissioner Tuor, unreportedDATES OF HEARING: 13/08/2008 EX TEMPORE
JUDGMENT DATE :
08/13/2003LEGAL REPRESENTATIVES: RESPONDENT:
APPLICANT:
Mr P J Wecker in person
SOLICITORS:
N/A
Mr A Seton (solicitor)
SOLICITORS:
Marsdens Law Group
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
10849 of 2002
13 August 2003Lloyd J
- Applicant
- Respondent
HIS HONOUR:
1 This is an appeal under s 56A of the Land and Environment Court Act 1979 (“the Court Act”) against a decision made by Commissioner Tuor.
2 The proceedings before the commissioner were an appeal against an order issued by the respondent council under s 121B of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). That order, directed to the applicant, required him to demolish a shed or outbuilding located at the rear of the allotment being lot 55, section P, deposited plan 5786, known as No. 12 Fifth Avenue, Katoomba.
3 The reasons for the order were that the shed or outbuilding had been erected without prior development consent and without a prior construction certificate having been obtained; and its construction does not meet development standards. The commissioner dismissed the appeal and upheld the order that had been issued by the council. The commissioner further made an order that the order be complied with within sixty days.
4 A number of grounds have been advanced in support of the appeal. It must be remembered, however, that an appeal under s 56A of the Court Act may only be made on a question of law.
5 The first ground relied upon is that the shed in question does not require development consent. Reliance is placed upon s 69 of the Local Government Act 1993 (“the LG Act”), which states:
- 69 Crown exemption from approval to do things incidental to erection or demolition of building
- Section 68 does not require the Crown or a person prescribed by the regulations to obtain the approval of a council to do anything that is incidental to the erection or demolition of a building.
6 The Local Government (Approvals) Regulation 1999 does not prescribe any person for the purpose of s 69 of the LG Act. That section, therefore, only applies to the Crown. If follows that s 69 is not available to the applicant in this case.
7 Next, it is said that there is an inconsistency between s 69 of the LG Act, and Development Control Plan No. 33 which applies to the erection of temporary buildings within the City of Blue Mountains. I have already said that s 69 of the LG Act does not apply. In any event, a development control plan is made under s 72 of the EP&A Act. A development control plan is not a local policy made under Ch 7 of the LG Act and s 69 of that Act could not apply to it.
8 Next, it is said that a local policy is not to be more onerous than the Act or the regulations. Reliance is placed upon s 164 of the LG Act. That section only applies to a local policy made under Ch 7 of that Act. Section 164 of the LG Act does not apply to an instrument made under another or different Act, such as a development control plan, made under s 72 of the EP&A Act.
9 Next, it is said that the service of the order is ultra vires on a number of grounds. Reference is made to the grounds set out in s 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Decisions of this Court, or of any court, are not decisions to which that Act applies. Nevertheless the applicant has raised a number of grounds which are also grounds which are available at common law to set aside or challenge a decision of the court. I shall deal with each of them in turn.
10 Firstly, it is said that service of the order was based upon an irrelevant consideration, namely bias on the part of the council against the applicant. It must be remembered, however, that this is an appeal against a decision of a commissioner of the Court exercising the powers of the council de novo; that is to say it was the commissioner exercising all the powers, duties, discretions and functions of the council - see sub-ss (2) and (3) of s 39 of the Court Act. There is no suggestion that in deciding the case as she did the commissioner was in any way guilty of bias or that she acted so as to prompt any suspicion of bias in making the order that she did.
11 Secondly, it is said the order was issued for a purpose other than that for which the power was conferred. The order was issued under s 121B of the EP&A Act, item 2 of which enables an order to be made to demolish or remove a building where a building is erected without prior development consent and without a prior construction certificate. The order that was issued on the applicant was for the express reason that the shed had been erected without prior development consent and without a prior construction certificate. It could not be said, therefore, that the order was issued for a purpose other than that for which the power was conferred.
12 Thirdly, it is said the order was an exercise of discretionary power in bad faith. There is, however, no suggestion that in doing what she did the commissioner was acting in bad faith.
13 The written submissions of the applicant refer to a number of cases where estoppel was raised. However, estoppel cannot operate to prevent or hinder the performance of a statutory duty or a statutory discretion which is intended to be performed or exercised for the benefit of the public or a section of the public. That is to say, estoppel cannot operate against a decision of a commissioner of the Court - see in particular Southend-on-Sea Corporation v Hodgson (Wickford) Limited [1962] 1 QB 416 at 422, and in this Court Coffs Harbour Shire Council v Ben Hall Industries (1983) 48 LGRA 391 at 396 and 397.
14 Next, it is said that there has been in this case the inflexible application of policy. I accept that the inflexible application of a policy is a valid ground for challenging the validity of a decision but in the present case it seems that the commissioner did not simply inflexibly apply some policy, the commissioner gave reasons for her decision and in particular I set out pars [12] and [13] of her decision which provide a reasoned basis for confirming the order:
- [12] Based on Mr Wecker’s evidence, the shed is no longer incidental to the construction of the dwelling and its purpose is now to provide temporary accommodation and storage of personal effects. While I am sympathetic to Mr Wecker’s circumstances these do not override the requirement that a structure must meet certain standards, particularly if it is to be used for human occupation, even on an occasional basis.
[13] I accept the evidence of Mr Prince that the shed does not meet the required standards in terms of construction, materials and facilities. In particular the disposal of sewage and waste water on the site in close proximity to a watercourse is unacceptable. The location of the shed adjoining a Category 1 bushfire zone raises concerns not only in terms of the threat of fire from the bush but the danger posed by fire spreading from the shed to the bush, which is exacerbated by the supply of electricity to the shed by extension cords. I also agree with council that a shed that has been occupied for over 10 years is not a temporary structure and that if Mr Wecker wishes to provide storage or to use his land for permanent accommodation approval needs to be sought through the proper process.
15 Next, it is said that the council was acting unreasonably in the Wednesbury sense. In view of the two paragraphs that I just quoted from the commissioner’s decision, it could not be said that the commissioner was acting unreasonably in the Wednesbury sense, it being the decision of the commissioner, acting de novo in the present case, that is being challenged.
16 Finally, it is said that the relevant development control plan was not served. There is no requirement under the EP&A Act for service of a development control plan and in any event the development control plan in the present case is irrelevant.
17 For these reasons if follows that the formal order is the appeal be dismissed and the commissioner’s orders be confirmed.
18 Mr Seton, the commissioner allowed 60 days. I think the 60 days should run from today, not from the date of the commissioner’s decision.
19 SETON: Yes, your Honour, I don’t think that the council would cavil with that order being amended to reflect 60 days from today. The council would also seek an order for costs of the appeal.
20 HIS HONOUR: Mr Wecker, the council is seeking an order for costs, do you wish to say anything about that? That is, only the costs for today, not the hearing before the commissioner.
21 APPLICANT: Well, if possible because of my restricted financial situation - I was partially disabled in 1991 and under some circumstances I’d be eligible for a full pension and I accepted retraining instead and that retraining hasn’t borne fruit as such and I have been on a very restricted income since then, so I would plead for a waiver on the grounds of I am a social security recipient and that that situation is due to physical injury.
22 HIS HONOUR: Well, unfortunately although the Court does not usually make costs orders in class 1 planning appeals, this is not a planning appeal. The ordinary practice as to costs is that the successful party should be compensated in costs for the costs that it has incurred.
23 APPLICANT: If there are no rules applicable to the waiver, no rules of waiver applicable to my situation, well I would have to accept that too. But it does leave me in dire circumstances.
24 HIS HONOUR: Well, I propose to follow the normal practice and make an order for costs, but if you are unhappy with the amount of costs that are ultimately claimed you can always have them assessed.
25 APPLICANT: Well, I would expect if a cost claim was - you know, if I have to meet costs I would meet the standard costs because they are all tabulated, costs are tabulated, that’s assumed, so whatever the tabulated cost is is the cost I would have to meet and I would expect to do that.
26 HIS HONOUR: I order the applicant to pay the respondent council’s costs.
I hereby certify that the preceding 26 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.
Dated: 13 August 2003Associate
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