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Auburn Council v Hiken Group Pty Limited; Auburn Council v Proprietors of Strata Plan 74671 [2008] NSWLEC 191 (1 July 2008)

Last Updated: 3 July 2008

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Auburn Council v Hiken Group Pty Limited; Auburn Council v Proprietors of Strata Plan 74671 [2008] NSWLEC 191
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
No. 41201 of 2007

APPLICANT:
Auburn Council

RESPONDENT:
Proprietors of Strata Plan 74671

No. 40481 of 2008

APPLICANT:
Auburn Council

RESPONDENT:
Hiken Group Pty Limited


FILE NUMBER(S):
41201 of 2007
40481 of 2008


CATCHWORDS:
Practice and Procedure :- application to strike out proceedings - section 121B of the Environmental Planning and Assessment Act1979 - order to comply with fire and life safety requirements - enforcement of order - proceedings brought without jurisdictional foundation - no cause of action


LEGISLATION CITED:
Environmental Planning and Assessment Act 1979 s 121B; s 121H; s 121I; s 121J; s 121P; s 121R and s 125

CASES CITED:
Peek v New South Wales Egg Corporation (1986) 6 NSWLR 1


CORAM:
Lloyd J

DATES OF HEARING:
30 May 2008

JUDGMENT DATE:
1 July 2008


LEGAL REPRESENTATIVES

APPLICANT:
S Flanigan (barrister)
SOLICITORS:
Deacons
RESPONDENTS:
A E Galasso SC
SOLICITORS:
Colin Biggers Paisley




JUDGMENT:

- 3 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES


Lloyd J


Tuesday, 1 July 2008

LEC Nos. 41201 of 2007 & 40481 of 2008

AUBURN COUNCIL v PROPRIETORS OF STRATA PLAN 74671; AUBURN COUNCIL v HIKEN GROUP PTY LIMITED [2008] NSWLEC 191 (including Corrigendum dated 2 July 2008)


JUDGMENT

1 HIS HONOUR: Auburn Council has commenced proceedings seeking a declaration that the respondent in each of these two cases “has breached section 125 of the Environmental Planning and Assessment Act 1979, in that, it has failed to comply with the order issued pursuant to section 121B of [the Act]” and seeking a mandatory injunction requiring each respondent to comply with the order.

2 This is a motion by the respondent in each of these proceedings for an order that the council’s application for relief be struck out, or alternatively, the proceedings be stayed until the council has complied with the requirements of s 121R(3) of the Act. The respondents say that the council has no cause of action.

3 The essential facts may be briefly described. In Auburn Council v Hiken Group Pty Limited they are as follows:

(a) On 6 July 2007, the council served a notice of intention to give an order under s 121B (Order No. 6) of the Act on the respondent. The proposed order requires the respondent building owner to submit to the council within 30 days a report detailing works which the respondent considered necessary to satisfy all relevant fire and life safety requirements of the Building Code of Australia.

(b) On 6 August 2007, the council purported to give an order under s 121B to the respondent in the terms of the proposed order.

(c) On 12 March 2008, the respondent’s solicitors served a copy of a fire and safety report on the council’s solicitors.

4 In its points of claim the council alleges that the report served on the council’s solicitors fails to satisfy the terms of the order and in particular, it fails to address necessary works required to satisfy all relevant fire and life safety requirements of the Building Code of Australia. The points of claim allege that the respondent has thus failed to comply with the requirements of s 121Q of the Act.

5 In Auburn Council v Proprietors of Strata Plan 74671, the relevant events are as follows:

(a) On 6 July 2007, the council served a notice of intention to give an order under s 121B (Order No. 6) of the Act on the respondent. The proposed order required the respondent building owner to submit to the council within 30 days a report detailing all works which the respondent considered necessary to satisfy all relevant fire and life safety requirements of the Building Code of Australia.

(b) On 6 August 2007, the council purported to give an order under s 121B to the respondent in terms of the proposed order.

(c) On 17 October 2007, the council’s solicitors sent a letter to the respondent stating that the date for compliance with the order had expired and requesting it to provide the report or show cause why the council should not commence proceedings in the court to enforce the order, within seven days.

(d) On 31 October 2007, the council’s solicitors again wrote to the respondent stating that the council has not received a report and advising that they are instructed to commence proceedings in the court to enforce the order.

(e) On 8 November 2007, the council received an email from Michael Wynn-Jones of Michael Wynn-Jones & Associates Pty Limited seeking an extension of time for submission of a report.

(f) On 1 May 2008, the respondent submitted a fire and life safety report prepared by Michael Wynn-Jones & Associates to the council.

6 In its amended points of claim the council alleges that the report submitted to the council fails to satisfy the terms of the purported order served on the respondent on 6 August 2007 and in particular, fails to address necessary works required to satisfy all relevant fire and life safety requirements of the Building Code of Australia.


The relevant statutory provisions

7 Section 121B enables a council to give an order to a person to do or refrain from doing a thing specified in the table to that section. Relevantly, by Order No. 6 in the table, the council may order the owner of a premises to do or refrain from doing such things as are specified in the order so as to ensure or promote adequate fire safety where such provisions are not adequate or where the premises constitute a significant fire hazard.

8 By s 121H, however, before giving an order the person who gives the order must give notice to the person to whom the order is to be given of the intention to give the order and its terms, indicating that representations may be made as to why the order should not be given or as to the terms of or period of compliance with an order.

9 Sections 121I and 121J concern the making and consideration of representations. After hearing and considering any representations, the order may be given either with or without modifications, or it need not be given at all: s 121K.

10 Instead of specifying the things that the person to whom the order is given must do or refrain from doing, an order may specify the standard that the premises are required to meet and the nature of the work that would satisfy that standard: s 121P(1). The order may require the owner or occupier to prepare and submit to the person issuing the order particulars of the work the owner or occupier considers necessary to make provision for such matters as may be specified: s 121P(2). Section 121Q deals with compliance with a requirement of an order under s 121P.

11 Section 121R is of particular relevance in the present case. It states:

(1) A person who gives an order must, within 28 days after particulars of work are submitted to the person in accordance with section 121P (2):

(a) accept the particulars without modification or with such modifications as the person thinks fit, or
(b) reject the particulars.

(2) If a person accepts the particulars of work without modification, the person must forthwith order the owner to carry out that work.

(3) If a person accepts the particulars of work with modifications or rejects the particulars, or if an owner fails to submit particulars of work in accordance with section 121P (2), the person must:

(a) prepare, within 3 months after the acceptance, rejection or failure, particulars of the work that the person considers necessary to make provision for the matters specified in the order given to the owner under section 121P, and

(b) order the owner to carry out that work.
...


The council does not have a cause of action

12 There are two reasons why the council does not have a cause of action. The first relates to the form of the order which the council gave on 6 August 2007 in each case. Although each order is headed “ORDER Pursuant to s 121B of the Environmental Planning and Assessment Act 1979 (NSW)”, the body of the document states:

You are hereby given an Order 6 pursuant to s 121H of the Environmental Planning and Assessment Act, 1979 (NSW) (the “Act”) that the Auburn Council, as the appropriate authority under the Act, is in possession of evidence that provisions for fire safety within the premises are not adequate to prevent fire, suppress fire, or prevent the spread of fire or ensure or promote fire safety of persons in the event of fire and Council intends to give an Order No. 6 of the Table to s 121B of the Act in the terms described herein and the compliance period specified. ....

13 It is apparent that although the heading of the document in each case refers to an order under s 121B, the body of the document states that it is issued “pursuant to s 121H” - which refers to the notice of intention to give an order - and further states that the council “intends to give an Order No. 6 of the Table to s 121B.” The document can only be read according to its terms. I thus accept the submission of the respondents that the reference in the heading to s 121B is a label only. The operative provision of the document is a notice under s 121H of an intention to give a s 121B order. Moreover, if there is any ambiguity - and in my opinion there is not - then any such ambiguity must be resolved contra proferentem against the council as the author of the document. There is thus no order that has been made under s 121B upon which the council can base its claim for relief.

14 The second reason why the council does not have a cause of action is because of its failure to comply with the requirements of s 121R. That section prescribes the course to be followed when no particulars of work have been submitted, or alternatively, if particulars of work have been submitted. If the council accepts the particulars then that permits it to “forthwith order the owner to carry out that work”: sub-s (2).

15 On the facts of this case, Hiken’s solicitors forwarded a report to the council’s solicitors setting out the particulars of work to the council’s solicitors, but no order has been made by the council under sub-s (2).

16 Alternatively, if the submitted particulars of work are rejected or accepted with modifications by the council, the onus is then on the council to prepare particulars of the work that it considers necessary. That must be done within three months. The council may then order the owner to carry out that work: sub-s (3). If an owner fails to submit particulars of work in accordance with s 121P(2), then sub-s (3) requires the council to prepare particulars of the work that it considers necessary within three months and then order the owner to carry out the work. In neither case has the council followed the course prescribed by s 121R.

17 The legislative scheme is reinforced by the provision for a right of appeal. Section 121ZM states that a person may appeal to the court against the failure of a person who gave an order: (a) to accept or reject, under s 121R(1), particulars of work submitted in accordance with s 121P(2); or (b) to prepare, under s 121R(3), particulars of work that the person considers necessary. The appeal must be made within 28 days after the period limited under s 121R(1) or (3)(a) for compliance by the person who gave the order.

18 In the present case, I accept the submissions of the respondents that unless the council undertakes the matter prescribed in s 121R(3)(a), there cannot be any order for them to comply with and consequently no order upon which the council can rely upon to bring these proceedings.

19 The council submits, however, that the word “must” as it applies to the person giving the order in sub-ss (1) and (3) does not mean “shall” in this context. The council relies for this submission on sub-s (4) of s 121R:

(4) An order under this section is not invalid merely because of the failure of the person to accept or reject any particulars of work or prepare particulars of any work, as the case may be, within the period it is required to do so by this section.

20 The council submits that the satisfaction of the person who gives the order with ss 121R(1) and 121R(2) can take place at any time, so that the word “must” is directory rather than mandatory.

21 I do not accept the council’s submission. Section 121R sets out the procedure to be followed before a person is required to carry out the work. If, as the council submits, the word “must” is directory rather than mandatory, then in the context of sub-s (4) it would only be directory rather than mandatory in relation to the prescribed times within which things must be done. That is, sub-s(4) is only directed to the time limits prescribed by the section. It does not affect the procedural requirements of the section.

22 The council further submits that the matters raised by the respondents in their present motion are more properly dealt with by way of an appeal under s 121ZM. It submits, for example, that the question of whether the fire safety report that has been submitted to the council satisfies s 121Q is more appropriately dealt with on a merit appeal or at trial. However, proceedings that have been brought without jurisdictional foundation are fundamentally bad. The only order that has been issued by the council is the notice of intention to issue an order, neither has s 121R(3) been activated. It follows that the proceedings brought by the council should be dismissed.


Conclusion

23 There is an additional matter upon which the respondents rely. The council’s application expressly relies upon an allegation that each respondent has breached s 125 of the Act. The council thereby alleges the commission of a criminal offence. At the same time the council seeks a mandatory injunction against each respondent requiring them to comply with the order, presumably relying on a breach of the Act and either s 123 or s 124.

24 The respondents submit that the proceedings are therefore in the wrong jurisdiction of the Court. The council is prosecuting the respondents for an offence against the Act under s 125. The proceedings should be in the summary criminal jurisdiction of this Court.

25 I am unable to agree that the proceedings are bad on this account. Courts of equity may in certain circumstances exercise their discretion to grant equitable relief to restrain the commission of offences notwithstanding the availability of alternative criminal sanctions: Peek v New South Wales Egg Corporation (1986) 6 NSWLR 1 at 8. The circumstances in which a court may do so were described by Kirby P in Peek at 3-5. In the present case, that is what the council appears to be seeking - it alleges that the respondents have committed an offence created by s 125 of the Act and it is seeking an equitable remedy which would have the effect of restraining the commission of the offence. The question of whether the remedy sought by the council falls within any of the circumstances described by Kirby P and would thus be appropriate, would become a relevant consideration if and when the Court were to consider the exercise of its discretion at the hearing.

26 In the present case, however, there is no offence against the Act, neither is there any cause of action against the respondents, so that the question does not presently arise.

27 In the absence of a cause of action the Court has no jurisdiction. The alternative of a stay as sought by the council assumes that the Court has jurisdiction. The proceedings brought by the council should be dismissed.


Orders

28 The formal orders which I now make are as follows:

No. 40481 of 2008:

(1) The application brought by Auburn Council is dismissed.

(2) The applicant, Auburn Council, must pay the costs of the application and the notice of motion.

No. 41201 of 2007:

(1) The application brought by Auburn Council is dismissed.

(2) The applicant, Auburn Council, must pay the costs of the application and the notice of motion.


I hereby certify that the preceding 28 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.


Associate
Dated: 1 July 2008

**********

CORRIGENDUM

Following the publication of the reasons for judgment of the Honourable Mr Justice D H Lloyd in Auburn Council v Proprietors of Strata Plan 74671; Auburn Council v Hiken Group Pty Limited [2008] NSWLEC 191, by consent and pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 the following amendments are made on 2 July 2008:

1. Paragraph 5(f) is deleted and replaced with: “On 1 May 2008, the respondent submitted a fire and life safety report prepared by Michael Wynn-Jones & Associates to the council.”

2. Paragraph 6: the reference to the council’s points of claim is omitted and replaced with the following sentence: “In its amended points of claim the council alleges that the report submitted to the council fails to satisfy the terms of the purported order served on the respondent on 6 August 2007 and in particular, fails to address necessary works required to satisfy all relevant fire and life safety requirements of the Building Code of Australia”.

3. Paragraph 16: the last sentence should read: “In neither case has the council followed the course prescribed by s 121R.”

AMENDMENTS:


02/07/2008 - By consent and pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 the following amendments are made on 2 July 2008: - Paragraph(s) Paragraph 5(f) is deleted and replaced with: “On 1 May 2008, the respondent submitted a fire and life safety report prepared by Michael Wynn-Jones & Associates to the council.”
Paragraph 6: the reference to the council’s points of claim is omitted and replaced with the following sentence: “In its amended points of claim the council alleges that the report submitted to the council fails to satisfy the terms of the purported order served on the respondent on 6 August 2007 and in particular, fails to address necessary works required to satisfy all relevant fire and life safety requirements of the Building Code of Australia”.
Paragraph 16: the last sentence should read: “In neither case has the council followed the course prescribed by s 121R.”