Hones News

Must Read 'Council News'

IMPORTANT Council News

There have been some big changes in law which will effect all local councils, please read these 6 significant items or contact your Hones Lawyers representative so we can explain why these are significant changes.

Costs in S.56A appeals treated the same way as costs in normal Class 1 appeals

The tide on costs in s56A appeals has turned. The Court has recently held that the usual rule, that there be no order as to costs in Class 1 appeals, applies to s56A appeals.

In Mike George Planning Pty Ltd v Woollahra Municipal Council (No. 4) [2014] NSWLEC 187, Pepper J had cause to consider an application made by the Council in that appeal for the applicant to pay the Council’s costs of an appeal pursuant to s.56A of the Land & Environment Court concerning a Class 1 appeal. The Court had earlier dismissed the applicant’s s.56A appeal.

Ultimately her Honour found that the provisions in s.56A appeals as they relate to Class 1 appeals means that rule 3.7 of the Land & Environment Court Rules apply. That rule provides that costs are not payable unless it is fair and reasonable to do so. Whilst accepting that s.56A appeals cease being proceedings having the same character as a merits review, her Honour formed the opinion that that circumstance, of itself, cannot carry significant weight. Ultimately her Honour was persuaded that the question of law involved in that matter was a question that was determinative of the whole appeal. That fact, it appears, led her Honour to find that a costs order would not be fair and reasonable to be awarded in the circumstances of that matter.

Having made that observation however, we point out that, had the s.56A appeal been more in the nature of errors raised in an appellate context, it would appear to us that it might be fair and reasonable for costs to be awarded in those circumstances.

Thinking about serving Orders? Read this first!

Be very careful that what you do complies with the relevant rules of service – the consequences of failing to do so could be costly.

In Tweed Shire Council v Furlonger [2014] NSWLEC 156, Biscoe J dismissed proceedings in circumstances where the Council had not properly served its orders under the Local Government Act in accordance with the provisions of the Local Government Act and in circumstances where the proposed recipient proved that the orders were not received in any event.

The decision reinforces the importance of serving orders and the consequences of failing to do so.

It is to be noted that orders may be served either in accordance with the prescription set out within the Local Government Act (and equally under the Environmental Planning and Assessment Act) or alternatively it needs to be proven that service was effected and the order came to the attention of the recipient by some other means.

Clearly the best way to establish that an order has been served is by the engagement of a process server to personally serve the recipient.

Did you know Construction Certificates cannot be declared invalid?

The law on declaring CC’s invalid has been turned on its ear – unless the invalidity is grounded on the reasons that the works commenced before the CC was granted, CC’s are immune from being set aside.

In Burwood Council v Ralan Burwood Pty Ltd (No. 3) [2014] NSWCA 404, the Court of Appeal unanimously dismissed an appeal by Burwood Council which challenged a decision of his Honour Sheahan J concerning a Class 4 appeal brought by the Council challenging a construction certificate.

Ultimately their Honours agreed that the scope and objects of the Environmental Planning and Assessment Act, construed as a whole, does not require a construction certificate issued in breach of s.109(F)(1)A of the EPA to be held invalid. In particular, the scope and object of the legislation do not require construction certificate issued in breach of clause 145(1) of the EPA regulation to be held invalid.

The decision has great importance for Local Councils because the grant of a construction certificate is taken to be the grant of a development consent and accordingly if there are departures to a development consent set out in construction certificate plans, then those construction certificates will, in effect, amend the plans the subject of the development consent.

The Court said that the appropriate course in circumstances where a construction certificate has been issued in breach of the Environmental Planning and Assessment Act is to make a complaint to the Building Professionals Board and have that body regularise the conduct of the certifying authority in question. It is anticipated that, following the Burwood decision, amendments will be made to the Environmental Planning and Assessment Act so as to enable an otherwise invalid construction certificate to be declared invalid.

Watch this space, as we understand that the EPA Act will be amended to address this case and the Council has applied for special leave to appeal to the High Court.

Rates dispute – Councils take note!

Just because a deal may sound great, ultimately Council’s cannot fetter their duties/obligations under the Local Government Act.

Peregrine Mineral Sands Pty Ltd v Wentworth Shire Council [2014] NSWCA 429 related to an appeal from a decision of a judge of the Equity Division of the Supreme Court regarding a dispute about land rates payable by the appellants to the respondent council (the Council) for a mineral sands mine operated by the appellants within the Council’s shire.

The proceedings concerned an agreement for land rates executed by Pooncarie Operations Pty Ltd and the Council prior to the Council receiving a land valuation which took into account the mineral content of the land. The agreement relevantly contained a clause stating that the rates would be “adjusted annually in accordance with the Local Government Act“. After a valuation was received by the Valuer-General, the Council increased the rates.

At first instance, the primary judge found that the clause referred to increases in rates of the nature of adjustments arising out of the percentage rate published in the New South Wales Gazette pursuant to the Local Government Act 1993 (NSW); not amounts determined as rates by the Council from time to time based upon valuations received by the Council. However, the primary judge held that clause impermissibly fettered the Council from undertaking its statutory duty of assessing rates each year in accordance with the Local Government Act.

The appellants appealed from the decision arguing that the primary judge erred in finding that the agreement was not authorised by the Local Government Act but was rather inconsistent with it. It was also submitted that the Court erred insofar as his Honour dealt with ultra vires in terms of the procedure leading to the execution of the agreement, which it is contended was not an issue raised below and, if the appeal failed, in his Honour’s discretion to award the Council its costs.

The respondents filed a notice of contention seeking to affirm the decision by arguing that his Honour erred in the construction of the agreement, and, to the extent that His Honour so found, in finding that a particular Council email established an intention on the part of the Council that rates of $100,000 per annum were to be adjusted in accordance with ministerial determinations under s 506 of the Local Government Act or constituted clear and convincing proof of such an intention such as to permit rectification of the agreement. The appellants responded that if the notice of contention is upheld, the primary judge erred in failing to order rectification of the agreement.

At the hearing of the appeal, the appellants sought leave to add an additional ground of appeal seeking damages for breach of contract. The respondent opposed the amendment.

The Court held there was no error in his Honour’s conclusion that the agreement was incompatible with the Local Government Act because it fettered the council’s ability to make rates into the future.

Further the Court held that the Local Government Act does not authorise an antecedent agreement capping future rates in advance.

WARNING: Compulsory Examination Notices are NOT an exercise of power under the EPA Act after a prosecution is commenced

If you want to investigate and seek compulsory answers to questions, do so before you commence a prosecution…. And what ever you do, make sure you have a sufficient description of the “matter” to which the notice relates.

In Zhang v Woodgate and Lane Cove Council [2015] NSWLEC 10, Preston C J was asked to consider the validity of a Compulsory Examination Notice written under s118BA of the EPA Act. That notice had been issued to compel a developer’s architect to attend Council chambers to answer questions. Those questions were said to be in respect of a prosecution that the Council had already commenced concerning some alleged over excavation activities on a site in Linley Point.

The applicant in those proceedings (who was represented by Hones Lawyers) challenged the notice on a number of different grounds, two of which were successfully upheld.

Firstly, the Court upheld the applicant’s argument that the relevant notice was ultra vires because it was issued in aid of the pending criminal proceedings against Mr Zhang to enable the Council to exercise its function to prosecute for the offence against the EPA Act, however that function (the prosecution) was not a function of the Council under the EPA Act (the function is, necessarily, a function of the Council to institute proceedings pursuant to the Local Government Act).

Secondly, the notice was challenged on the basis that the relevant notice was defective for a number of reasons, including that it failed to indicate the matter with which it was concerned. Relevantly his Honour upheld the complaint that the notice was defective because it did not indicate to the addressee the matter with which it was concerned (which was a matter that was mandated by s118BA).
The decision is important for a number of reasons including the fact that one must be careful in not issuing Compulsory Examination Notices following the commencement of a prosecution as well as reinforcing the importance of ensuring that statutory notices properly and adequately comply with the form and requirements that they are mandated by legislation to comply with.

Undertakings NOW enforceable in Class 4 appeals

>A new dawn has broken in enforcement – undertakings given in, or in contemplation of Land & Environment Court appeals may now be enforceable under the Court’s Class 4 jurisdiction.
In Council of the City of Sydney v Wilson Parking Australia Pty Ltd and Anor [2015] NSWLEC 42, his Honour Beech-Jones AJ, had cause to consider (in Class 4 proceedings) an application for enforcement of an undertaking given by Wilson to the solicitors to the Council as well as an existing use rights question. In respect of the first question, his Honour ultimately found that the question of the undertaking was within the jurisdiction of the Land & Environment Court (his Honour relied upon s16 of the Court Act). Importantly in that matter, the undertaking that had been proffered related Class 1 proceedings or they were at least in contemplation, and thereafter later commenced.

Importantly however, his Honour, whilst finding the Court had jurisdiction to enforce the undertaking (under the planning laws), found that the undertaking could not be enforced in either contract or based on promissory estoppel.

The matter is important for Councils because it sets the groundwork for being able to enforce undertakings given in relation to planning laws in the Land & Environment Court’s Class 4 jurisdiction, particularly in circumstances where such undertakings may not otherwise be enforceable in the Supreme Court (in its equitable jurisdiction).