Land and Environment Court of New South Wales CITATION : Stockland Development Pty Limited v Wollongong City Council [2004] NSWLEC 594 APPLICANT Stockland Development Pty Limited PARTIES : RESPONDENT Wollongong City Council FILE NUMBER(S) : 41181 of 2004 CORAM: Talbot J KEY ISSUES: Injunctions and Declarations :- for order requiring Council to perform statutory power on motion of private citizen refused. Environmental Planning and Assessment Act 1979, Local Government Act 1993 LEGISLATION CITED: National Parks and Wildlife Act 1974 Water Management Act 2000 Act Wollongong Local Environmental Plan 1990 Ashfield Municipal Council v Rex Keys Andrews (1986) 60 LGRA 248 ; Bateman's Bay Local Aboriginal Land Council and Another v The Aboriginal Community Benefit Fund Pty Limited and Another (1998) 194 CLR 247 ; CASES CITED: Murdoch v Holroyd City Council NSWCCA 20 November 1996, unreported; Ryde City Council v Echt and Another (2000) 107 LGERA 317 ; Wilkie v Blacktown City Council and Others (2002) 121 LGERA 444 DATES OF HEARING: 05/10/2004 EX TEMPORE 10/05/2004 JUDGMENT DATE : APPLICANT Mr T S Hale SC SOLICITORS Baker & McKenzie LEGAL REPRESENTATIVES: RESPONDENT Mr J B Maston (Barrister) SOLICITORS Marsdens JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Talbot J 5 October 2004 41181 of 2004 Stockland Development Pty Limited v Wollongong City Council JUDGMENT 1 Talbot J: The applicant claims a declaration that works being carried out on a site known as the Sandon Point Aboriginal Tent Embassy ("the site") at Sandon Point, Bulli are being carried out in breach of Wollongong Local Environmental Plan 1990 ("LEP 1990") and the Environmental Planning and Assessment Act 1979, the Water Management Act 2000 Act, the National Parks and Wildlife Act 1974 and the Local Government Act 1993. The applicant is seeking an order that Wollongong City Council ("the Council") be restrained from allowing the work to be carried out until such time as the appropriate approvals and consents under the abovementioned legislation have been issued in relation to the works and any occupation of the site. 2 By notice of motion dated 1 October 2004 the applicant moved the Court for orders that interlocutory relief be granted in the form of an order that the respondent be restrained from allowing the works to be carried out until further order of the Court. 3 The notice of motion was fully argued on 5 October 2004 when the application for interlocutory relief was dismissed. I gave short reasons at that time on the basis that full reasons would be published in due course. 4 Essentially what the applicant, as a private citizen is seeking, is a mandatory order at the interlocutory stage requiring a statutory authority to exercise a discretion to enforce the public law. 5 In Ryde City Council v Echt and Another (2000) 107 LGERA 317 at [27] the New South Wales Court of Appeal said that a public expectation a statutory authority would take all lawful steps necessary to secure the objects of its power "…does not support anything in the nature of a legal obligation to act on statutory power which is enforceable at the instance of a third party". The Chief Justice referred to the use of the word "responsibility" in the context of enforcement of planing law as being a use in the allusive sense. It is apparent from the reasoning in Echt that a responsibility to exercise a statutory power is not a proper foundation for the imposition of obligations which can be enforced by third parties against the repository of the power. 6 Although the argument in Echt was ultimately confined to the issue of costs, the Court of Appeal in the course of its deliberations formed the opinion that the council was not liable to a declaration that it had a responsibility to act on the failure of the owners of property to carry into effect conditions of a consent. Powell and Hayden JJA agreed with the opinion to that effect expressed by the Chief Justice. 7 That the Council clearly has a discretion to act against any person who it considers not to be complying with the law and the nature of that discretion can be explained by taking the analogy of the position of the Attorney General, discussed by McHugh J in Bateman's Bay Local Aboriginal Land Council and Another v The Aboriginal Community Benefit Fund Pty Limited and Another (1998) 194 CLR 247 at [81] to [86] in particular. 8 This is not a case where the Council is threatening to do something which is contrary to the law. There are many conceivable steps that a council can take in order to prevent or rectify a breach of the law. The remedies range from writing a mere letter of demand, through the issue of its own orders, to seeking relief by way of declarations and orders in this Court. The evidence 9 The applicant's project manager has given evidence that on 30 September 2004 he observed activity at the site, which he said, is known as the Sandon Point Aboriginal Tent Embassy. He noticed a number of individuals passing building materials, such as tin and timber, to other people on top of and adjacent to structures erected on the Embassy site. Photographs have been produced showing the nature of the structures. It is not possible to discern the exact nature and extent of these structures but clearly there are some buildings erected on the land. The evidence as it stands suggests that the original Sandon Point Tent Embassy was burnt down on or about 19 September 2004 and that the structures in the course of construction, as observed by the project manager, are intended to transform a burnt out and humpy style living quarters into a series of rooms set on a concrete slab with running water and electricity. It is alleged that the Embassy site is within Zone 6(a) Public Recreation under LEP 1990. Within the 6(a) zone leisure areas and exempt development are permissible without development consent, whereas the following development is permissible only with development consent:- Advertisements; business signs; camp or caravan sites; community facilities; education establishments; forestry; recreation areas; recreation facilities; registered clubs; restaurants; utility installations. 10 Helicopter landing sites and intensive agriculture are permissible with development consent granted after advertising and after the Council is satisfied about the matters referred to in cl 11 of the LEP. 11 The history of Council consideration in relation to the Sandon Point Aboriginal Tent Embassy can be briefly summarised from the evidence as it presently stands, as follows:- 25 November 2002 Council resolved that it "take no action against the Sandon Point Picket or the Sandon Point Aboriginal Tent Embassy until legal advice is received on this issue and reported to Council An increasing number of complaints have been received since November 2002. 10 June 2004 In a report by the Director Environment and Planning it was recommended that the Council, inter alia, resolve to require the cessation of the occupation of Council land for the purposes of an Aboriginal tent embassy and picket. 28 June 2004 The Council considered the Report of Director of Environment and Planning and notwithstanding that the continued use for the purposes of the picket and tent embassy was considered unlawful, the Council resolved unanimously as follows:- 1. The status quo remain and Council take no action to remove the Aboriginal Tent Embassy and community picket at this time. 2. The Lord Mayor and General Manager request the Minister for Department Infrastructure Planning and Natural Resources to provide his determination of the Commission of Inquiry report as soon as possible. 3. The General Manager be authorised to investigate and report on actions or measures needed to ensure vehicles and dogs associated with the area do not cause a public safety problem. It is recognised that such measures may require the General Manager to negotiate an outcome with the Embassy and picket communities. 4. Further information be sought to clarify if the Tent Embassy is situated on private land as suggested by Page 104 of the Council business paper of 28 June 2004. 5. Council establish a mechanism for communication between Embassy/picket protestors and residents/owners in Stages 1 to 6 to ensure any fears of intimidation are removed. 6. A briefing session be held for Councillors providing details of legal implications for Council of matters raised in the business paper report. 7. The briefing also cover mechanisms required to establish the possibility of a lease arrangement for the parties involved. 8. An on-site meeting be arranged for available Councillors with the Embassy and picket communities. 9. Council investigate allegations relating to breaches that have been tabled tonight and enforce the requirements of Development Control Plan 94/17 and the Land and Environment Court conditions for all work on the Sandon Point site. 19 September 2004 The structures comprising the Sandon Point Aboriginal Tent Embassy were burnt down. 29 September 2004 Solicitors for the applicant wrote to the Council noting that work has commenced to build a more permanent tent embassy and requesting that Council ensure that the building works on the site cease by 2.00pm 30 September 2004. 29 September 2004 Letters in similar vein were forwarded to the Director General Department of Environment and Conservation and the National Parks and Wildlife Service, the Director General Department of Infrastructure Planning and Natural Resources and the Regional Manager – Wollongong of the Department. 30 September 2004 The General Manager of the respondent informed the solicitors that he had consulted with the Lord Mayor and that he had been instructed to convene an Extraordinary Meeting of the Council for 5.00pm on that day to consider the matters raised in correspondence. The applicant responded though its solicitors on the same day setting further deadlines for action before litigation was to be commenced without further notice in the event that Council resolved to do other than require the works to cease immediately. 12 At the Extraordinary Meeting held on 30 September 2004 the Council resolved to take no action in relation to the matter and that the status quo remain. The Council further resolved that the Council begin discussions with representatives of the Sandon Point Aboriginal Tent Embassy and other Aboriginal organisations in the Illawarra with a view to the development of an education interpretative and cultural centre at an appropriate site within the Sandon Point region in the long term. Moreover, Council reaffirmed its commitment to the statement of Reconciliation adopted at its meeting on 17 April 2001. 13 On 1 October 2004 the Council informed the applicant's solicitors of the outcome of the meeting on 30 September 2004. Following this advice the applicant filed the notice of motion seeking orders that interlocutory relief be granted in the terms of paragraph 9 of the Application Class 4, namely that the respondent be restrained from allowing the works to be carried out until further order of the Court. 14 Firstly, it cannot be said from the facts in the above summary that the Council has elected to entirely ignore any problem with the Tent Embassy at Sandon Point. Rather it proposes to enter into negotiations for the purpose of seeking a mutually acceptable solution. Furthermore, the action that the applicant demands lies within the discretion of the Council. It is not a breach of any statutory duty or obligation or responsibility that the Council has in the Echt sense to decide not to prosecute the alleged breach or seek to prevent its continuation. There are many reasons the Council could have for not pursuing a formal remedy including issues of Council policy, the consequences of the alleged breach and the prospects of reaching a settlement by other means. No legal obligation that rests upon the Councill to exercise its statutory powers at the behest of a third party, such as the present applicant, has been identified. 15 Following the confirmation of the approach taken by Cripps CJ in Ashfield Municipal Council v Rex Keys Andrews (1986) 60 LGRA 248 and by Cohen AJA in Murdoch v Holroyd City Council NSWCCA 20 November 1996, unreported, in Wilkie v Blacktown City Council and Others (2002) 121 LGERA 444 the New South Wales Court of Appeal decided that mere ownership of land is insufficient to support the making of a restraining order against the owner of premises which an occupier has commenced to use for an unlawful purpose. Prima facie the Council is not liable for the actions of the occupier of its land, authorised or unauthorised, without further action on its part. 16 Accordingly, I was not satisfied that the applicant had raised a sufficiently serious question to be tried, firstly because the Council would not appear to have any particular enforceable duty to take the actions nominated by the applicant and secondly because it does not incur any liabilities on its land merely as a consequence of its ownership. 17 I confirm the order made that the application for interlocutory relief be dismissed. The question of costs is reserved. 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.