Hawkesbury City Council v Comito & Ors [2003] NSWLEC 274

> Land and Environment Court of New South Wales

CITATION : Hawkesbury City Council v Comito & Ors [2003] NSWLEC 274 Hawkesbury City Council (Appl) Peter Comito, Enrico Comito (1R) PARTIES : Fabio Malvagna, Guisseppina Malvagna (1R) Giulio Petrocco, Teresa Petrocco (1R) Peter Ruck (2R) FILE NUMBER(S) : 41052 of 2003 CORAM: McClellan CJ Injunctions and Declarations :- Application for interlocutory injunction to restrain construction of dwelling KEY ISSUES: Whether serious question to be tried Whether council estopped from challenging consent Whether determination under planning instrument of existence of relevant lot instrument was jurisdictional fact LEGISLATION CITED: Local Government Act Brickworks Limited v The Council of the Shire of Warringah [1963] 108 CLR 568; Drummoyne Municipal Council v Page (1974) 30 LGRA 237; CASES CITED: F N Eckold Pty Limited & Ors v Auburn Municipal Council (1975) 34 LGRA 114; Hawkesbury City Council v Sammut (2002) 119 LGERA 171; Holidays-A-Float Pty Ltd v Hornsby Shire Council (1992) 75 LGRA 127; Trimboli v Penrith Council (1981) 48 LGRA 323 DATES OF HEARING: 4 September 2003 EX TEMPORE JUDGMENT DATE : 09/04/2003

S Berveling (Barrister - Appl) A R Walmsley & Co (Solicitors - Appl) LEGAL REPRESENTATIVES: G Newport (Barrister - 1Rs) Submitting appearance (2R)

JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 41052/03

McCLELLAN J

THURSDAY 4 SEPTEMBER 2003 HAWKESBURY CITY COUNCIL Applicant v COMITO & ORS Respondent JUDGMENT 1 HIS HONOUR: This matter comes before me upon the application of the Hawkesbury City Council. The council seeks an interlocutory injunction to restrain the first respondents, who are the owners of the land, and the second respondent, who is a private certifier, from constructing a dwelling on a parcel of land being lot 175 in DP 48385 1 McMahons Road Kurrajong. 2 Lot 175 has an area of approximately 1488 square metres. It was first provided in a certificate of title which was registered on 9 October 1997. It is comprised of land which was severed from lot 2 in DP 802295 by an unmade road. That road was subsequently closed and the area of the road added to adjoining land to comprise lot 179. A copy of DP 802295 has been tendered in evidence. It appears to have been registered on 3 October 1990. At that date, the unmade road is shown as a closed Crown road. 3 The correspondence between the parties indicates that in 1999, a question arose as to whether or not having regard to the provisions of Hawkesbury Local Environmental Plan 1989, the council could permit a dwelling on Lot 175. The suggested impediment to consent was the provisions of cl 15.1 and 15.5 of the planning instrument. 4 In 1999 the councill, having obtained legal advice indicated that there was no entitlement to build on the land. In correspondence it said, "as such an application to erect a dwelling house on the lot cannot be approved". 5 Notwithstanding that correspondence, a development application was made to the council seeking consent for the erection of a modest dwelling. That application was considered by the council and approved. The consent which issued was dated 25 February 2003. A number of conditions were imposed. There was no suggestion by the council at that time that the application could not be approved. 6 The council now brings proceedings in which it seeks to challenge the validity of the consent which it granted. Two questions arise for consideration with respect to that application beyond matters going to the balance of convenience. The first question is whether or not the council is able to bring proceedings challenging the consent. 7 It is plain that the respondents have acted upon the consent, and it can be assumed, have incurred costs in so doing. However, the circumstances in which the application was made are not entirely plain. As I have recorded, the council had previously indicated that it was of the view that consent could not be granted and there is nothing before me which indicates why it may have changed its mind or any further discussion which may have taken place between the council and the respondents. 8 The question of whether or not a consent authority may bring proceedings to challenge the validity of a consent which it has itself granted, has been considered by the Courts on a number of occasions. It is a matter of some difficulty. 9 The starting point for consideration of the problem is the decision of the High Court in Brickworks Limited v The Council of the Shire of Warringah [1963] 108 CLR 568. In that case, the appellant applied to the council for consent to use an area of its land for the purpose of extracting clay and shale. It received a document which was headed "land use consent" which bore the initials of the relevant council officer. It was also signed by the shire president. 10 Subsequently, the council put in issue the validity of the consent and sought to restrain the company from extracting clay and shale from the land. The High Court comprised of three judges, McTiernan J dissenting, held that no injunction should be granted. It was held that there was a presumption evidenced from the documentary material that the council's consent had been given to the application and that if it could be shown somehow that the council did not in fact consent, an estoppel would nevertheless arise. In his reasons, Sir Victor Windeyer said this. "The Council did not at any time before it commenced this suit repudiate what its President had told the Company. In effect it repeated it. And the Company relied upon these purported consents. Does not this found an estoppel? It was argued that it could not do so because estoppel by representation cannot prevent the performance of a statutory duty or the exercise of a statutory discretion. There is no doubt about the principle; but I doubt its application to this case. The decision of the Court of Appeal in Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416 was relied on. The facts of that case do bear a superficial resemblance to those of this case. But there is a distinction. There the Corporation had, by its engineer, said that its permission for the use of land as a builder's yard was not in fact and law required. It was mistaken in this view; and it was held that what the engineer had said could not create an estoppel preventing the Corporation from exercising its statutory discretion to forbid the land being used as a builder's yard. That is to say, the Corporation had in effect said to the respondent company there,' you do not need our permission; we have no discretion to prevent your action'. In the present case, on the other hand, the Council said in effect, 'you do need our permission; we have a discretion which we have exercised in your favour'. It seems to that in the circumstances of this case, the Council was estopped from denying that it had exercised its discretion in the manner it had said it had done" p 577. 11 Since that decision, there have been a number of decisions of this Court and of the Court of Appeal which have considered the appropriate principles. Is has not been possible in the time available before the determination of this application to exhaustively explore all of those decisions. 12 However, in F N Eckold Pty Limited & Ors v Auburn Municipal Council (1975) 34 LGRA 114, the Court of Appeal had occasion to consider whether a council could bring proceedings challenging the validity of a consent which it had granted in circumstances where it had failed to advertise the development application pursuant to the relevant provisions of the Local Government Act. 13 The case was unusual in that the appellant was able to obtain the benefit of a decision of the High Court in Drummoyne Municipal Council v Page (1974) 30 LGRA 237 to give legitimacy to a building application as a deemed development consent in circumstances where no one at the time that the relevant facts occurred would have understood that to be available. 14 The decision in Page identified the consequence of the deeming provision in former planning instruments which provided that a building application properly made and consented to would carry with it a deemed development consent. In F N Eckold Hutley JA addressed the problem which is before the court today and said this; "Reliance was placed upon the judgment of Windeyer J in Brickworks Ltd v Warringah Council. The question as to whether a council can be estopped from setting up the invalidity of an approval which it has given is a question of great difficulty. On the one hand, one has the citizen involved in multifarious controls emanating from public bodies whose operations he cannot understand and on the other hand, one has the public bodies enmeshed in a similar complex of rules required to protect public interests." 15 In that case Hutley JA did not have to address the complexities which now exist to the planning system. His Honour continued; "The citizen dealing with a public body on the one hand should be able to rely upon any authorisation emanating from it so that he is unconcerned to see whether or not all proper steps have been complied with prior to the issue of the approval. On the other hand it may be felt that some consequences of approvals are so serious that if proper procedures are not adopted by the statutory body itself, it should be required to exercise its authority even to the extent of repudiating its own consent." 16 In that case, both Hutley and Glass JJ found that it was unnecessary to determine the extent, if any, to which a council could challenge the validity of a consent which it had itself granted. They determined the case upon the basis that either no relevant representation had been made or that the appellant had not relied upon it. However, as I have indicated, the difficulty in the question was underscored by Hutley J. 17 In Trimboli v Penrith Council, (1981) 48 LGRA 323, McLelland J had occasion to again consider the principles. However that case was in the context of a representation made by the council that there were existing use rights in relation to the relevant site. The council ultimately determined that that representation was not correct. McLelland J held that in those circumstances the council was not estopped from bringing proceedings in which it put in issue whether or not existing use rights existed. That case, of course, falls within the Southend-on-Sea principles which were distinguished by Windeyer J in Brickworks. 18 A similar position was identified by Stein J in Holidays-A-Float Pty Ltd v Hornsby Shire Council (1992) 75 LGRA 127 where the question was whether or not a consent had been substantially commenced and whether or not, a development consent which had been granted was prohibited. Stein J found that a boatshed simpliciter was prohibited on the relevant land unless it is "directly associated" with fishing or oyster farming because the application which had been approved was not for a boatshed with those characteristics. His Honour found that the application was for a prohibited use. 19 It was submitted that the council was estopped from maintaining that the consent was a nullity since it both exercised a discretion to grant the consent and reaffirmed its decision in July 1983. Although reliance was placed upon the decision in Brickworks Stein J was able to distinguish that decision. He said this; "It seems to me that when properly understood Brickworks is distinguishable and of little assistance to the applicant. Windeyer J acknowledged the principle that estoppel by representation cannot prevent the performance of a statutory duty or the exercise of a statutory discretion but held that the principle did not apply to the facts before the High Court." 20 His Honour continued: "In the present case on the other hand, the Council said in effect,' you do need our permission; we have a discretion which we have exercised in your favour. But this is not the case here. The Council have no discretion to exercise. The use was a prohibited one. The Council could not grant consent to a prohibited use. It cannot be estopped from saying that it made a mistake in carrying out its statutory duty or that the consent is a nullity." 21 The Court of Appeal recently considered the issue in Hawkesbury City Council v Sammut (2002) 119 LGERA 171, where Mason P said: "The respondent contended that the council at least was estopped from challenging its own consent on the basis of ultra vires. The judgment of Windeyer J in Brickworks was invoked. Whatever that passage indicates, it does not represent a decision that an ultra vires act, indubitably established in fact, can never be challenged at the suit of the administrator who did it: see generally Minister for Immigration Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 per Gummow J. 22 In the present case, the consent which was communicated by the council carries with it the implication that the council has addressed and determined the issue which arises pursuant to cl 15 of the instrument, being whether the relevant lot existed on the appointed day. There is no evidence before me which would suggest otherwise. It is submitted that this matter is a jurisdictional fact which the council was required to determine and should have determined in the course of considering whether or not to grant consent. Furthermore, it is submitted that the court may now review the council's decision and determine the matter for itself. 23 Accordingly, it will be necessary to consider, if the matter is a jurisdictional fact, whether the application was capable of approval. 24 Having regard to the current state of these proceedings it is not possible to identify with any clarity the argument which will ultimately be put before the Court. However, the discussion which I have undertaken in more lengthy form than might be usual in relation to an interlocutory application, I have embarked upon because it seems to me there are serious issues which need to be considered before any question of final relief can be determined. Those questions are whether the council may bring proceedings to challenge the validity of its decision and secondly whether or not in that context it is open to the court to itself determine whether or not the application was permissible. 25 Finally, there remains the issue as to whether or not the council could succeed in demonstrating that the decision which it made was wrong. On its face, it would appear that the relevant parcel of land (I deliberately avoid using the label "allotment") was first described in a Certificate of Title registered in 1997 and accordingly, the council will submit that the relevant allotment did not exist at the appointed day which was in 1989. 26 When the application was first made this morning, the council indicated through its counsel that it would not give an undertaking as to damages. That position has altered and an undertaking is now proffered. Mr Newport for the respondents does not bring any evidence which demonstrates any hardship which might flow from the making of an interlocutory order. In those circumstances, the balance of convenience plainly favours the grant of an interlocutory injunction. 27 As I am satisfied that there is a serious question, or indeed, a number of questions to be tried, and the balance of convenience favours the making of an order, I propose to make the appropriate order. 28 I will include in the short minutes the first respondents in 1(a) and 1(b). I will make orders 1(a) and (b) in the short minutes of order which I have initialled and dated.

**********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.