Notice, Authority and Costs – Lessons in Enforcement Action Procedures
The recent decision of City of Charles Sturt v Toscano [2024] SAERDC 7 provides important guidance for councils on procedural steps in taking compliance action under the Local Nuisance and Litter Control Act 2016 (SA) (LNLC Act), but which equally apply to the enforcement under the Planning, Development and Infrastructure Act 2016 (SA) (PDI Act).
Background
The respondent, Ms Toscano, resided in a dwelling in Flinders Park until it suffered fire damage in October 2020. Thereafter, the dwelling was ‘partially demolished and in a state of disrepair, dilapidation and damage due to the fire’, with its ‘roof badly damaged and part of the roof missing and with exposed, burnt roof trusses visible’. Shortly after the fire, temporary fencing was erected to secure the property and Ms Toscano, and her family, moved to a rental property in Brooklyn Park until August 2022. Ms Toscano claimed she intended to demolish the dwelling but only after the finalisation of an insurance claim.
In November 2022, the Council sent a letter to Ms Toscano concerning the unsightly condition of the Land (Warning Letter). The Warning Letter was sent to the Brooklyn Park address, but unfortunately Ms Toscano had subsequently moved to a new property in Lockleys and did not receive it. It was unclear on the evidence before the Court whether the Council ought to have been aware of the new address in that timeframe as she had written to the Council in another matter with the Lockleys address, but the evidence was not clear on what date that correspondence had been sent.
In any event, the Court ultimately accepted that Ms Toscano (via her husband) was advised of the Warning Letter and its contents during a phone call with a Council officer later in November 2022.
On 23 June 2023 the Council commenced proceedings under section 33 of the LNLC Act, alleging breaches of sections 18(2) and 18(3)(b) of the Act by ‘failing to take any action to remove, repair or otherwise improve the appearance of the [dwelling] causing the [dwelling] to remain in its current condition and thereby carrying on an activity for the purpose of the [LNLC Act] which results in a local nuisance as defined in section 17(1)(c) of the [LNLC Act]’.
In the proceedings, the Council sought orders for costs and, significantly, that the dwelling be demolished and the land cleared of any demolition materials to the reasonable satisfaction of the Council.
In September 2023, a compulsory conciliation took place. It was then that Ms Toscano advised the Council that a quote for the demolition of the dwelling had been obtained in August and a deposit paid. The conference was closed and the matter listed for a directions hearing on the question of costs. The demolition of the dwelling was undertaken in November 2023 and was not contested
Pre-action protocols and the need for notice
Ms Toscano submitted that the proceedings would have been unnecessary had the Respondent been put on notice of Council’s intention to issue proceedings or had the Council engaged in the pre-action protocols set out in the Uniform Civil Rules 2020 (SA) (UCR).
Section 33(11) of the LNLC Act provides that ‘[a]n application may be made without notice to any person’. The Court held that Council was therefore not under an obligation to issue the Warning Letter, nor was it required to comply with pre-action protocols set out in the UCR. The Court further held that, in any event:
Rule 61.8(1)(c) [of the UCR] provides that an applicant is not required to take such pre-action protocols in circumstances where the matter will be the subject of an alternative dispute resolution process, such as a conciliation conference, as was the case here.
It is worth noting that section 214(4) of the PDI Act similarly provides that ‘[a]n application may be made without notice to any person’. Further, it is a requirement of Section 214 that an application under that section must first be referred to a conference under section 16 of the Environment, Resources and Development Court Act 1993 (SA).
Appointments & delegations
An argument advanced by Ms Toscano was that the proceedings were a nullity [invalid] as the Council officer who deposed the affidavit in the proceedings, was not an authorised officer under the LNLC Act, despite having deposed to being so appointed.
The Court ultimately did not accept this argument, but relevantly stated:
It is trite to say that Council officers should know and understand the extent of their appointments and/or delegations (including any limitations) when performing or discharging their functions under the [LNLC Act]. A Council officer should not assume that they have been appointed as an authorised officer. They ought to sight the relevant instrument of appointment or delegation as the case may be to satisfy themselves that they are, in fact, an authorised officer under the [LNLC Act].
Costs
Ms Toscano sought an order for costs in the proceedings. The Court declined to do so, on the basis that:
- the Council was not obliged to provide any notice prior to taking the proceedings; and
- shortly after being served with the summons in the proceedings, and where she was prepared to effectively consent to the demolition order, Ms Toscano chose to take additional steps which were litigious in nature, costly and unnecessary in the circumstances of the case.
The Council sought its costs of the hearing, but the Court declined to exercise its discretion to do so on the basis of Council’s late production of information to Ms Toscano which would have materially shortened the hearing or made it entirely unnecessary.
For more specific information on any of the material contained in this article please contact Aden Miegel on +61 8 8217 1342 or amiegel@normans.com.au, Dale Mazzachi on +61 8 8210 1221 or dmazzachi@normans.com.au or Stephan Koefer on +61 8 8217 1368 or skoefer@normans.com.au .
