Reported Decision : 109 LGERA 252 Land and Environment Court of New South Wales CITATION : Van Haasteren v South Sydney Council [2000] NSWLEC 168 APPLICANT: Van Haasteren PARTIES : RESPONDENT: South Sydney Council FILE NUMBER(S) : 10120 of 2000 CORAM: Bignold J KEY ISSUES: Question of Law :- Whether reasons given by Order made under s 121B. No reasons given. Order invalid LEGISLATION CITED: Environmental Planning and Assessment Act 1979 S 121B Mulcahy v Blue Mountains City Council (No 2) (1995) 87LGERA 472; CASES CITED: Ryde City Council v Echt (2000) 107 LGERA 317 at 327; Stutchbury v Pittwater Council (1999) 105 LGERA 1 DATES OF HEARING: 15 May 2000 22 May 2000 (written submissions) DATE OF JUDGMENT: 08/04/2000 APPLICANT: Mr J Maston, Barrister SOLICITORS T McGlynn and Partners LEGAL REPRESENTATIVES: RESPONDENT: Mr A Hawkes, Solicitor SOLICITORS Pike Pike and Fenwick JUDGMENT: IN THE LAND AND Matter No . 10120 of 2000 ENVIRONMENT COURT OF Coram : Bignold J. NEW SOUTH WALES 3 August 2000 T F J S VAN HAASTEREN Applicant v SOUTH SYDNEY COUNCIL Respondent JUDGMENT Bignold J: A. INTRODUCTION 1. In pending Class 1 proceedings, the Applicant has raised for preliminary determination a number of questions of law going to the validity of an Order served upon him by the Council pursuant to the Environmental Planning and Assessment Act 1979, s 121B (the EP&A Act), in respect of premises owned by the Applicant and known as No 76 Marriott Street, Redfern (the subject premises). 2. The pending proceedings involve an appeal pursuant to the EP&A Act s 121ZK. 3. The Order, which is dated 17 January 2000, required the Applicant to carry out specified works within 14 days after service of the Order (the Order) (A copy of the Order is annexed hereto and marked "A"). 4. The specified works were stated as follows: …carry out the necessary alterations to your roof to restore it to the condition in which it was prior to works being carried out and use only non-glazed terracotta roof tiles. 5. On its face, the Order was given pursuant to Item 12(b) of the Table to the EP&A Act , s 121B(1) , which relevantly provides as follows: 121B What orders may be given by a consent authority? (1) An order may be given to a person by: (a) a council, or (b) ……. to do or to refrain from doing a thing specified in the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table. Column 1 Column 2 Column 3 To do what? In what circumstances? To whom? (a) Building has been unlawfully erected, and an order No 2 has been given requiring the building to be demolished or removed 12 To do such things as are specified in the order to restore premises to the condition in which they were before building was unlawfully erected or before work was unlawfully carried out. (b) Work has been unlawfully carried out The owner of the premises, any person entitled to act on a development consent or complying development certificate or any person acting otherwise than in compliance with a development consent or complying development certificate 6. The Applicant raises five questions of law. Originally it raised only the first three questions recited below, but at the hearing, and without objection from the Council, he raised two further questions. The questions are as follows: 1. Did the Council give reasons for the order as required by the EP&A Act , s 121L? 2. If the answer to question 1 is " no ", is the Order thereby invalidated? 3. If the Order is invalidated, should the pending appeal, pursuant to s 1212K be upheld? 4. Alternatively, is the Order in accordance with the content of Item 12(b) in the Table to the EP&A Act s 121B ? 5. If the answer to question 4 is " no ", is the Order thereby invalidated? B. THE RELEVANT FACTS 7. The parties have tendered a Statement of Agreed Facts (Exhibit 1) which states the following: 1. The respondent is a Council within the meaning of the Local Government Act 1993. 2. 76 Marriott Street, Redfern (the subject premises) falls within the City of South Sydney 3. The subject premises are owned by the applicant as the registered proprietor thereof. 4. A dwelling house is erected on the property. 5. The subject premises are zoned residential 2(b) under the provisions of South Sydney Local Environmental Plan 1998. 6. In April 1999 the roof of the dwelling house was clad in terracotta tiles. 7. In April 1999 the terracotta roof at the dwelling house on the subject premises was destroyed by a violent hailstorm. 8. In April 1999 the property was occupied by tenants of the applicant under a Residential lease pursuant to the Residential Tenancies Act 1987. 9. In June 1999 the roof was renovated by cladding it in corrugated roofing iron. 10. On or about 19 January 2000 the applicant was served with an order pursuant to Section 121 B.12(B) of the Environmental Planning and Assessment Act 1979. 11. On or about 16 February 2000 the applicant lodged a Class 1 Appeal against the order. 8. In addition to the foregoing facts, the Council tendered the following facts, the relevance of which is disputed by the Applicant. Nonetheless, and for completeness, I note the following additional facts: 12. Council has received no development application or application for a construction certificate after April 1999 in relation to the works undertaken to the roof of the subject premises and has issued no consent in relation thereto. 13. On or about 2 December 1999 Council issued by registered post a notice of a proposed order pursuant to Section 121 H of the Environmental Planning and Assessment Act 1979 relating to the subject premises addressed to the applicant c/o Carrington Real Estate, 596 Crown Street, Surry Hills. 14. The applicant never received the Notice of Proposed Order. 15. Council received no representations in relation to the Notice of Proposed Order within the period of 28 days specified therein. 16. On or about 10 February 2000 Council received a letter from McGlynn and Partners on behalf of the applicant giving reasons as to why the work had been undertaken to the terracotta tiled roof at the subject premises and requesting that the order be revoked. C. THE RELEVANT STATUTORY PROVISIONS 9. Division 2A ("Orders") was inserted into the EP&A Act Pt 6 by the Environmental Planning and Assessment (Amendment) Act 1997 (Act No 152) which came into force on 1 July 1998. 10. The Division instituted for the first time in the history of the EP&A Act a system of statutory enforcement notices (Orders) in similar fashion to the statutory enforcement notice system that had been enacted in the Local Government Act 1993, Pt 2 of Ch 7. 11. Prior to the introduction of Division 2A, civil enforcement of breaches of the EP&A Act was limited to proceedings commenced in this Court to remedy or restrain a breach of the Act—vide s 122 - s 124 inclusive. 12. To a large extent, the content of Division 2A was consequential upon the repeal of those provisions of the Local Government Act 1993 which regulated the erection of buildings and made provision for fire safety in buildings. Those provisions have been re-enacted as parts of the EP&A Act. 13. However, apart from this operation, Division 2A additionally extends the system of statutory enforcement notices to the sphere of development control in force by virtue of the EP&A Act Pt 4. 14. The statutory enforcement notice system in force under Div 2A contains a comprehensive procedural code in relation to statutory enforcement orders similar to the procedural code that was in force under the Local Government Act 1993, Ch 7, Pt 2, which the Chief Justice, in giving the judgment of the Court of Appeal has recently compendiously described as follows: The circumstances in which this power can be exercised are regulated by Ch 7 Pt 2 Div 2 which sets out a range of procedures for the giving of notice, the making of representations, the hearing and consideration of representations and the making of orders after consideration of those representations. Division 3 goes on to provide for the giving of reasons, for specification of a period of compliance, notice of right to appeal. In all, an elaborate scheme for the exercise of this power. : Ryde City Council v Echt (2000) 107 LGERA 317 at 327. 15. Similarly, the EP&A Act, s 121H requires notice to be given of a proposed order; s 121I provides the opportunity for a person served with a proposed order to make representations; s 121J requires a hearing of the representations; s 121K provides for the giving of an order "after hearing and considering any representations"; and s 121L requires reasons to be given for any order so made. 16. It is this last-mentioned provision upon which the Applicant's challenge is principally founded. Section 121L provides as follows: (1) A person who gives an order must give the person to whom the order is directed the reasons for the order. (2) The reasons may be given in the order or in a separate instrument. (3) The reasons must be given when the order is given, except in an emergency. In an emergency, the reasons may be given the next working day. 17. Finally, it is to be noted what consequences the EP&A Act attributes to a failure to comply with an order given pursuant s 121B. There are at least three significant consequences, namely— (i.) the person giving the order may itself give effect to the terms of the order by carrying out the required work at the expense of the person in default: s 121J; (ii.) a breach of the EP&A Act is created which is enforceable by civil process commenced in this Court for an order to restrain or remedy the breach: s 122(b)(v); and (iii.) a criminal offence is created: s 125(1) for which the maximum penalty prescribed is 1,000 penalty units: s 126(1). D. THE BASES FOR CHALLENGING THE VALIDITY OF THE ORDER 18. The Applicant challenges the validity of the Order on two independent bases, namely— (i.) the Order did not give "reasons for the order" as is required by the EP&A Act, s 121L; and (ii.) the circumstances that were required to exist in terms of Item 12(b) of the Table to s 121B(1) for the giving of the Order, did not in fact exist. 19. The Applicant submits that each basis relied upon, invalidates the Order. The Council demurs to each basis of challenge on the ground that neither of the Applicant's allegations is substantiated in fact. However, I did not understand the Council's argument to resist the conclusion that the Order would be invalid if either basis for challenge was substantiated. Indeed, the Council expressly conceded (as it was in truth bound to do so) that if the "re-roofing" of the Applicant's dwelling-house did not constitute the "carrying out of work" within the meaning of the content of Item 12(b) of the Table to the EP&A Act s 121B(1), the Order must be held to be invalid. 20. Accordingly, I propose to separately consider each of the bases for legal challenge of the Order. E. WERE REASONS FOR THE ORDER GIVEN? 21. I have earlier recited what things the Order specified the Applicant must do. 22. It is now necessary to examine the content of the Order that may possibly be held to constitute the reasons for giving the Order. 23. The only relevant content are the following two sentences, the first of which preceded the specification of things to be done and the second immediately followed that specification. You being the owner in respect of the property at abovementioned premises are ordered by South Sydney Council to carry out the undermentioned works within 14 days after the service of this Order upon you as the work has been unlawfully carried out. ……. You are further advised that the following provisions of the Environmental Planning Assessment Act, 1979 (as amended) and regulations made under the Act has not been complied with. 24. It is obvious that the two sentences are connected in thought pattern in the sense that the second sentence was intended to particularise the assertion contained in the first sentence that " the work has been unlawfully carried out ". 25. It is also obvious that that intention was not fulfilled because the second sentence simply does not provide any of the intended particulars. Thus, the second sentence, so obviously incomplete, is in truth, meaningless. 26. The result is that the only content in the Order that is possibly suggestive of "the reasons" why the Order was given is the bald assertion in the first sentence "as the work has been unlawfully carried out". 27. If the question whether this assertion was the "reason" for giving the command were for the moment, divorced from the context and structure of the EP&A Act Div 2A of Pt 6, it may be possible to conclude that brief and elliptical though it may be, the bald assertion nonetheless expressed "the reason" for the giving of the Order (in the sense that a person is commanded to do something to repair or restore something that that person has previously unlawfully done). 28. However, once the same question is asked (as it must be asked) in the context of Div 2A of Pt 6, then I think that the clear and only answer must be that that bald assertion does not express the "reasons" for the giving of the Order that the EP&A Act s 121L requires. 29. This is because the essential structure and regime of Div 2A of Pt 6 is (1) to confer a discretionary power upon the Council to give an Order "to do or to refrain from doing a thing specified in Column 1 of the Table to s 121B(1) if the circumstances specified in Column 2 of the Table exist" to the person "described in Column 3 of the Table"; and (2) to procedurally regulate the exercise of that power. (There are, of course, other important features of the statutory structure or regime eg the right of appeal to this Court against the giving of an order and the consequences of disobedience of an order). 30. In circumstances where the discretionary power is only enlivened or exerciseable "if specified circumstances exist" (namely those recited in Column 2 of the Table to s 121B(1)) then the requirement imposed by s 121L that "reasons for the order" be given, cannot reasonably have been intended to be fulfilled by the Order merely stating (or restating) the very same "circumstances" the existence of which, alone enlivens the discretionary power. 31. Thus, simply as a matter of contextual considerations (quite apart from the important considerations of semantics (the meaning of "reasons") and the function of reasons in the legislative scheme or regime of the EP&A Act Div 2A of Pt 6) it can be confidently concluded that the statutory requirement that reasons be given for an order under s 121B(1), will never be fulfilled or satisfied simply by stating "the circumstances" that must exist to enliven the discretionary power. 32. The nature of the discretionary power conferred by the Local Government Act 1993 s 124 (which is virtually identical to the power now conferred by the EP&A Act, s 121B) was emphasised in the judgment of the Chief Justice in Echt where his Honour said at p 327/328 (immediately following the passage that I have earlier recited at par 14): The other provision to which attention was directed was s 673, which is a companion to s 674 to which I have already referred and which the neighbours invoked before his Honour. Section 673 empowers the council to bring proceedings in the Land and Environment Court for the purpose of an order to remedy or restrain a breach. That section is in the following terms: The Minister, the Director-General or a council may bring proceedings in the Land and Environment Court or such other court as may be specified in this Act for the purpose of the proceedings for an order to remedy or restrain a breach of this Act Each of ss 124 and 673 convey a power using the word may . Section 9 of the Interpretation Act 1987 (NSW) states: In any Act or instrument the word may , if used to confer a power, indicates that the power may be exercised or not, at discretion. I am unable to discern in either s 124 or s 673 any contrary indication to that effect. The word may is, in my opinion, in each section used in the sense of conferring a discretion. The existence of the discretion is, in my opinion, confirmed by the provision in s 172(2) to a general effect that has long existed in the local government law of this State, enabling a council to give certificates of compliance. Section 172(2) states: The council must issue a building certificate if it appears that: (a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council: (i) to make order No 1, 3, 5(g) or 26 in the Table to section 124 in relation to the building or part; or (ii) to take proceedings for an order or injunction requiring the demolition, alteration, addition or rebuilding of or to the building or part; or (iii) to take proceedings in relation to any encroachment by the building or part onto land vested in or under the control of the council; or, (b) there is such a matter, but in the circumstances, the council does not propose to do any of the things referred to in paragraph (a). The fact that pursuant to par (b) the council may, notwithstanding non-compliance in a building structure, decide not to take steps to make orders or institute proceedings, highlights the discretionary nature of the council's powers in the relevant respect. 33. Once the nature of the power conferred by s 121B is truly appreciated (both as to (i) the circumstances that enliven it; and (ii) the discretionary basis for its exercise), it becomes tolerably clear that the " reasons " that s 121L requires to be given are the reasons for exercising, in the particular case, the discretionary power. 34. No such reasons were given in the present case. The only matter that could possibly pass as "reasons" is the assertion that "the works were unlawfully carried out" and this simply repeats "the circumstances" that are required to exist to enliven the power. It inevitably follows that the Order given in the present case is entirely devoid of the "reasons" for the Order that the EP&A Act, s 121L requires to be given. 35. In fairness to the Council's argument, not only was it advanced in ignorance of the then very recent, but unreported decision, of the Court of Appeal in Echt, but it relied in part, upon the trial judgment in Echt which was reversed by the decision of the Court of Appeal. Indeed, I venture to think that if the Council had been aware of the Court of Appeal's judgment, it probably would not have argued its case. 36. The conclusion that I have reached is entirely consistent with the decision of Sheahan J in Stutchbury v Pittwater Council (1999) 105 LGERA 1 upon which the present Applicant naturally placed heavy reliance. There, his Honour, in an illuminating judgment which I would respectfully and gratefully adopt, discusses the importance of the giving of reasons for an order given under the Local Government Act 1993, s 124 and also the important concept of the legal adequacy of the reasons required to be given. Indeed, his Honour saw his conclusion in the case as propounding "the appropriate test of the adequacy of reasons": see at 17. 37. For my part, I do not see the present case as raising any question of the "adequacy" of reasons, because in my opinion, for the reasons I have given, "no reasons" for the Order were given, in the sense that the requirement of s 121L was wholly unfulfilled or unsatisfied. 38. However, if it were necessary to go further and consider the "adequacy" of the reasons given, then I would respectfully adopt and apply the reasoning and conclusion in Stutchbury, in holding that legally adequate reasons were not given in the Order. 39. In concluding that no reasons for the Order were given in the present case, I have carefully considered the Council's very comprehensive legal submissions. However, I do not think that they provide an answer to the inevitable conclusion that I have reached. With respect to the Council's submissions, I would only say that my conclusion has not involved an overscrupulous and technical construction of the content of the Order, such as would not be appropriate when construing the workings of an administrative agency. On the contrary, as I have demonstrated in the present case, there is virtually nothing in the Order to construe, it being self-evident that the only content of the Order that could possibly pass for "reasons" is the restatement of the "circumstances that must exist" before the statutory power to give an order is enlivened, and such a restatement is incapable in law, of constituting "reasons" which s 121L requires to be given. 40. Nor, with respect to the Council's submissions, does my conclusion mean that some unreasonable burden to fully investigate the case and to expose his conclusion and reasoning is placed upon the administrative agent who gives an order under s 121B. On the contrary, as I have stated, the principal content of the duty to give reasons is a statement as to why the Council has, in the particular case, decided to exercise its discretionary power to give an Order. 41. Next, I should say that I was thoroughly unpersuaded by the Council's attempt to distinguish Stutchbury by its emphatic reliance upon the fact (by way of assertion) that "the work was unlawfully carried out", since in common with the other contents of Column 2 of the Table to s 121B(1) that is simply "a circumstance" which must exist to enliven the discretionary power. It does not possess any special or inflated weight or significance over any other "circumstances" specified in Column 2 of the Table. 42. Finally, I would reject the Council's reliance upon the fact that the EP&A Act s 121ZK confers a wide ranging right of appeal to this Court upon a person served with an order, as providing some form of atonement or relief against the Council's failure to comply with the duty to give reasons that is imposed by s 121L. 43. In my opinion, an appeal against an order given pursuant to the EP&A Act s 121B(1) is not to be likened, as the council's argument suggested, to an appeal pursuant to the EP&A Act s 97 by an applicant dissatisfied with the determination by the consent authority of his or her development application. In the former case, the applicant is appealing against a decision of the council which whilever it stands, imposes significant obligations upon the applicant and which are enforceable by civil and criminal process. The applicant, in effect, appeals against the imposition of such obligations. In the case of an appeal by an applicant dissatisfied with the determination by the council of a development application, no existing obligation has been imposed by the council's decision and the applicant is entirely free to choose whether to pursue by the appeal process in this Court, the development application that the council has refused. 44. In contrasting the positions of an applicant in an appeal pursuant to s 121ZK and an applicant in an appeal pursuant to s 97, I do not overlook the theoretical choice available to a person who has been given an order pursuant to s 121B which he believes to be a nullity, to do nothing but instead wait to see whether the Council will take any enforcement action in default of compliance with the order. For example, if such enforcement action were taken either civilly or criminally, the person who has received the order may be able to defend such action by challenging the validity of the order in those proceedings. However, the choice that confronts a person who has received an apparently invalid order, to do nothing, carries significant risks upon which I need not here elaborate. 45. Notwithstanding the theoretical choice of ignoring an apparently invalid order, most persons are apt to respond to such an order by doing what the present Applicant has done, namely to appeal to the Court but take the preliminary objection to the validity of the order. This is what occurred in Stutchbury. 46. For all the foregoing reasons, I hold that the Order has wholly failed to fulfil the obligation imposed upon the Council by the EP&A Act s 121L to give "reasons for the order" and that the Order on that account is wholly invalid. F. DID THE CIRCUMSTANCES OUTLINED IN ITEM 12(B) OF THE TABLE TO S 121B EXIST? 47. The answer to this question depends entirely upon whether the re-roofing of the Applicant's dwelling-house involved "the carrying out of work". 48. The Applicant argues that in the context of the content of Item 12 of the Table to s 121B(1) there is a clear cut distinction between "the erection of building" and the "carrying out of work" and that the re-roofing of the Applicant's dwelling-house clearly involved "the erection of a building'. 49. This argument finds support in the traditional manner in which town planning controls have been imposed, namely controlling (i) the erection of a building; (ii) the carrying out of a work; and (iii) the use of a building work or land. 50. Each of these separate concepts or notions have for many, many years been regarded as forms of "development". The definition of "development" contained in the EP&A Act s 4(1) perpetuates these concepts or notions, particularly as they are extended by the operation of the EP&A Act s 4(2) (b), (c) and (d) in respect of "the erection of a building", "the carrying out of a work" and the inclusionary definition of "work" respectively. 51. Whether a particular activity relevantly constitutes "the carrying out of a work" has been considered in a number of reported cases, many of which are referred to in my judgment Mulcahy v Blue Mountains City Council (No 2) (1995) 87LGERA 422, where I held (at 428) that the removal of barricades barring access along a road did not involve the carrying out of a work. 52. It is to be noted that the relevant definitions that I have referred to, and the cases I referred to in Mulcahy, involved the expression "the carrying out of a work". 53. This may be contrasted with the content of Column 2 to Item 12(b) in the Table to s 121B where the references to both "building" and "work" are without the indefinite article. In this respect, it is to be noted the drafting style in the Table is not uniform, where more commonly the definite or indefinite article is employed where the word "building" is employed. 54. I do not think that the absence in Item 12(b) to the Table on the indefinite article displaces the established learning on the subject which I collected and applied in Mulcahy. 55. However, the introduction into the EP&A Act by the 1997 Amendment Act of the concept of "building work" (defined in s 4(1)) presents greater difficulty for maintaining the traditional strict distinction between the concepts or notions of "the erection of a building" and "the carrying out of a work". 56. However, in this respect, it is to be noted that Item 12(b) does not employ the term "building work". 57. In determining the meaning of the expression contained in Column 2 in respect of Item 12(b) of the Table, it is necessary to have regard to the total statutory context and more particularly, to the content of Column 1 which refers to restoring "premises to the condition in which they were before building was unlawfully erected or before work was unlawfully carried out". 58. The word "premises" is also a defined term in the EP&A Act s 4(1) and includes— (a) a building of any description or any part of it and the appurtenances to it 59. Given the content of Column 1, in respect of Item 12 of the Table it is not readily apparent why the maintenance of the conventional distinction between "the erection of a building" and "the carrying out of a work" was thought to be necessary. Upon deeper reflection, it is apparent that the distinction contained in par (a) and par (b) in Column 2 is not simply the conventional distinction but rather the distinction goes to the fact that par (a) specifies the circumstance where a building has been unlawfully erected and where an order requiring the demolition or removal of that building has been given. 60. What then, is the position in terms of s 121B of a building that has been "altered" unlawfully and hence by definition has been unlawfully "erected": vide s 4(2)(b)(i)? 61. If the conventional distinction between "the erection of a building" and the "carrying out of a work" were strictly maintained so that an order under Item 12 could not be given, the result may be that the only type of order that could be given under s 121B is an order for the demolition or removal of the building (see Item 2 of the Table). 62. This would appear to be an unreasonable and unintended result and should, according to ordinary principles of statutory construction, be avoided if an alternative interpretation of the text is reasonably open. 63. In my opinion, in its context in Item 12 to the Table to s 121B, the reference to "work (that) has been unlawfully carried out" should not be construed so as to exclude the carrying out of building work, being in the nature of the erection of a building. 64. For the foregoing reasons, I would hold that the circumstances for the giving of an order in terms of Item 12(b) of the Table relevantly existed in the present case because the "re-roofing" of the Applicant's dwelling-house may properly be regarded as "the carrying out of work". G. CONCLUSIONS AND ORDERS 65. For all of the foregoing reasons, I would hold that the Order is invalid because it wholly fails to fulfil the requirement imposed by s 121L that "reasons for the Order" be given. 66. Accordingly, I would answer the five questions raised as follows: Question 1 Did the Council give reasons for the order as required by the EP&A Act, s 121L? Answer No Question 2 If the answer to question 1 is "no", is the Order thereby invalidated? Answer Yes Question 3 If the Order is invalidated, should the pending appeal, pursuant to s 121ZK be upheld? Answer Yes Question 4 Alternatively, is the Order in accordance with the content of Item 12(b) in the Table to the EP&A Act s 121B? Answer Yes Question 5 If the answer to question 4 is "no", is the Order thereby invalidated? Answer Does not arise. ANNEXURE A 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.