Frank CALABRO PTY LIMITED v Dennis William and Kim Deidre MAAKA

MEAGHER JA: I agree with Stein JA.

POWELL JA: I agree with Stein JA.

STEIN JA : On 21 August 1997 the appellant commenced proceedings in the Land and Environment Court seeking a declaration that a building approval granted by the Warringah Shire Council on 6 November 1991 with respect to premises at 1149 Pittwater Road, Collaroy had lapsed. The application also sought a prohibitory injunction against the respondents restraining the carrying out of any building works without approval under the Local Government Act 1993. The application also sought a mandatory injunction and interlocutory relief. Talbot J granted an interlocutory injunction on 22 August 1997.

Points of Claim and Defence were directed to be filed. The appellant’s point of claim maintain that a building approval had been granted on or about 6 November 1991 but the works were not substantially commenced within 12 months (s 315 Local Government Act 1919). Therefore, as agreed it was void. Some years later, in July 1997, the respondents commenced erection of a building on the land. Paragraph 8 of the Points of Claim states: The erection of the building on the respondents’ land is being carried out without the approval of the Council in breach of the provisions of the Local Government Act 1993.

The respondent’s Points of Defence alleged the granting of building approval by the Council on 7 November 1991 but denied that the works had not been substantially commenced within 12 months thereafter. They also denied paragraph 8 of the Points of Claim.

The matter came on for hearing before Bignold J on 1 December 1997 and the parties tendered evidence on the issue of whether the works were substantially commenced on or before 7 November 1992. The appeal books do not include this material, nor does his Honour refer to it in his judgment. After the hearing Bignold J reserved judgment. As his Honour recounts, a few days after reserving, it occurred to him that the court may lack jurisdiction to grant the relief sought by the appellant. Accordingly, his Honour brought his concern to the attention of the parties and reconvened to hear submissions on the question which he posed - ‘does the court have jurisdiction to determine the proceedings in the light of the decision of Bannon J in Vincent v Wyong Shire Council (1995) 86 LGERA 86?’ [Red AB 14].

The court reconvened on 16 December 1997 and Mr Ayling, then appearing for the appellant, submitted that the proceedings were a claim brought under s 674 of the Local Government Act 1993 and clearly within the jurisdiction of the court under s 20(1)(d) of the Land and Environment Court Act 1979. He pointed to the assertion made in paragraph 8 of the Points of Claim of a breach of the 1993 Act. Mr Ayling noted that the defence pleaded was the existence of a building approval granted under the 1919 Act continuing in force under the 1993 Act by virtue of cl 14 of Schedule 7 of the Savings and Transitional Provisions to the 1993 Act. Against this, Mr Ayling noted the appellant’s case as contending that the building approval had lapsed by reason of non-compliance with s 315 of the 1919 Act. Mr Ayling acknowledged that if his Honour was to follow Vincent , the declaration sought in paragraph 1 of the application would probably not be able to be made. However, a declaration could be made in terms of paragraph 8 of the Points of Claim. In any event, he submitted that Vincent was to be distinguished since it was a case challenging the validity of an approval under the 1919 Act and not one seeking a finding that an approval, validly issued, had lapsed.

Counsel then appearing for the respondents, Mr Costigan, supported his Honour’s analysis and submitted that there was no jurisdiction in the court to grant the relief sought by the appellant. The application should therefore be dismissed. His Honour reserved his judgment for a second time.

Bignold J gave judgment on 12 February 1998 when he dismissed the application and discharged the interlocutory injunction. The application was dismissed on the basis that the Land and Environment Court lacked jurisdiction to determine the appellant’s claims which ‘are entirely founded upon the operation of s 315 of the Local Government Act 1919’ [Red AB 15]. Section 315 of the 1919 Act was within Part 11 of the Act and after the 1993 Act commenced on 1 July 1993, the 1919 Act was excluded from the civil jurisdiction of the court under s 20(2) of the Land and Environment Court Act . His Honour said that he agreed with Bannon J’s conclusion in Vincent and accordingly, the court did not have jurisdiction regarding the operation of s 315 in respect of the 1991 building approval. Bignold J was at pains to make it clear that his conclusion (of lack of jurisdiction) was based upon the precise nature of the appellant’s claims as they had been formulated in the application and the pleadings. He rejected the appellant’s suggestion that the application was seeking to enforce the Local Government Act 1993 concluding that the application was ‘entirely founded upon the appellant’s averment that the 1991 Building Approval lapsed … by virtue of s 315 of the Local Government Act 1919 [AB 22]. Bignold J added that s 16(1A) of the Land and Environment Court Act did not assist the appellant since the central issue in the proceedings was the appellant’s claim that the building approval had lapsed. Therefore, it was not a matter ancillary to a matter falling within jurisdiction.

I have concluded that Bignold J fell into error. The claim before his Honour was a simple one. It was specified in the wording of the restraining injunction sought in the originating process and spelt out succinctly in paragraph 8 of the Points of Claim. The claim was simply that the respondents did not have a valid and subsisting approval under the 1993 Act and accordingly were in breach of that statute.

The defence of the respondents was that they did have an approval under the 1993 Act because they had been granted building approval under the 1919 Act and, by virtue of the transitional provisions, that approval continued in force and is taken to have been given under the 1993 Act (schedule 7 cl 14). To this defence the appellant submitted that the respondents did not have an approval immediately before the commencement of the 1993 Act (1 July 1993) because it had lapsed by reason of the failure to substantially commence the work within 12 months after the date of approval. The respondents denied this and the issue, thus joined, was the subject of evidence from both parties.

His Honour was wrong to find that the proceeding was entirely founded on s 315 of the Local Government Act 1919. It is readily apparent that the proceedings were brought pursuant to s 674 of the Local Government Act 1993 to remedy or restrain a breach of that Act, namely of carrying out building works without an approval (see ss 68 and 672). It appears to me that the application before the Court and the Points of Claim, particularly paragraph 8, make this plain. It may be that his Honour was lead astray by the way in which the appellant had framed the declaration in paragraph 1 of the application. As counsel for the appellant before his Honour said, it was possible, if Vincent was followed, that his client could not obtain the declaration in the terms sought in the application. Nevertheless, as he submitted, it would clearly have been within jurisdiction to make a declaration in terms of the allegation in paragraph 8 of the Points of Claim ie. that the respondents were carrying out building works without the approval of the Council in breach of the Local Government Act 1993. Rather than finding that the proceeding was entirely founded on s 315 of the 1919 Act, his Honour should have found that the proceedings were founded on s 674 of the 1993 Act, which is squarely within the court’s jurisdiction under s 20(1)(d) of the Land and Environment Court Act .

For my part I can see no impediment to the Land and Environment Court determining, as a matter of fact, whether the building works had been substantially commenced within 12 months of the approval granted on 7 November 1991. This was a necessary factual matter to be answered before any conclusion could be drawn that the 1919 approval was ‘in force immediately before the commencement’ of the 1993 Act so as to obtain the benefit of the savings and transitional provision in cl 14 of Schedule 7 and whether the respondents had a subsisting building approval under the 1993 Act. The need to examine and draw conclusions concerning evidence of what happened or did not happen in the 12 months following 7 November 1991 does not alter the fundamental basis of the appellant’s claim of a breach of the Local Government Act 1993.

As to Vincent , a number of observations may be made. First, it may be readily distinguished. Vincent was a challenge to the validity of an approval on the basis of Wednesbury unreasonableness. This case involves no challenge to the validity of the building approval, rather an examination of the operation of s 315. The instant challenge relies on the allegation that there is no extant approval which would be saved by cl 14 of Schedule 7. Indeed, it was only if this could be established that the appellant’s proceeding could succeed. It is plain that the respondents were contending that they had a ‘saved’ approval. The appellant was contending to the contrary by reason of its claim that the approval had lapsed. Vincent was a very different case.

It seems to me that even if Vincent was correctly decided, and I harbour doubts as to its correctness, it is readily distinguishable from the case before the court. While it may not have been open to the Land and Environment Court to have granted the declaration in paragraph 1 of the application, I have no doubt that the court had jurisdiction to make a finding on the issue of whether the building works, the subject of the 1991 approval, had been substantially commenced within 12 months of the date of approval. In my opinion, the Land and Environment Court also had jurisdiction to make the declaration foreshadowed by the appellant’s counsel on 17 December 1997, namely that the respondents were carrying out building work without an approval in breach of s 674 of the Local Government Act 1993.

In addition, it is readily apparent that the central and fundamental basis of the appellant’s claim was a breach of the 1993 Act which falls squarely within the jurisdiction of the court. In considering the issue within jurisdiction, I cannot appreciate how it can be concluded that the question of whether the pre-existing approval under the 1919 Act had lapsed was not ‘a matter that is ancillary to a matter that falls within its jurisdiction’, s 16(1A) of the Land and Environment Court Act . It is clearly ancillary. Again, it may be that his Honour was lead into error by his mistaken catagorisation of the proceedings as entirely founded on s 315 of the Local Government Act 1919.

Even before the inclusion of s 16(1A) in the Land and Environment Court Act , it was open to the Land and Environment Court to determine matters which were incidental to matters within the court’s jurisdiction, see for example, Tweed Byron Aboriginal Land Council v The Minister (1990) 69 LGRA 269 at 272 - 273. Although the decision was reversed on appeal, the question of jurisdiction of the court to determine matters incidental to a matter within jurisdiction was never doubted.

I conclude that the appeal should be upheld. The difficulty is what should now occur. While Bignold J heard evidence on the lapsing issue, he made no findings. Counsel have indicated that on any remitted hearing they would seek to present further evidence on the merits and on the issue of discretion, since the works have apparently been completed since the decision of his Honour. I would propose that the appeal be upheld, the order dismissing the proceedings as beyond jurisdiction be set aside and the matter be remitted to the Land and Environment Court for a new trial. I would leave it to the Land and Environment Court to determine who should preside at the new trial.

As to costs, I would propose that the respondents pay the appellant’s costs of the appeal but receive a certificate under the Suitors’ Fund Act if otherwise entitled. The costs of the first trial should await the result of the second trial save that the respondents should pay the appellant’s costs of and incidental to the hearing called by his Honour on 16 December 1997 on the jurisdictional issue.