Posted on February 20, 2018 by Katie Mortimer and Stuart Simington

Order for rectification of retaining wall on Council’s land upheld

The NSW Court of Appeal recently upheld the validity of  an order issued by Sutherland Shire Council (Council) that required work to be done, partly on the Council’s land.  The order was issued under item 21 of the Table to section 124 of the Local Government Act 1993 (LG Act).

The Court gave a beneficial interpretation to the powers of councils relating to the scope of s124 orders and what land they can apply to, and also some indications as to how they can be drafted to address practical issues.

Background

The appellant’s land (Land) bordered a road on land owned by the Council. A series of five walls retained the roadway.

One of the walls became unstable and Council was concerned there was an imminent risk of failure making the area around retaining wall ‘D’ unsafe.

Council issued an order under item 21, of s124 of the LG Act requiring the appellants to do specified things to place the land surrounding the wall in a safe condition (Order). This included doing work on the Council’s land.

In summary, the recipients were required to obtain expert engineering advice about Wall D and how it should be replaced, including survey advice and options for replacement. The Council engineer was to approve the work before it commenced.

The appellants challenged the validity of the Order firstly in the Land and Environment Court, and then on appeal to the Court of Appeal (Court).

Item 21 of the Table to section 124 of the LG Act provides as follows:

Column 1		Column 2	Column 3
To do what?		In what circumstances?	To whom?
21	To do or refrain from doing such things as are specified in the order to ensure that land is, or premises are, placed or kept in a safe or healthy condition	The land or premises are not in a safe or healthy condition	Owner or occupier of land or premises

The source of the risk does not have to be on the recipient’s land 

The Court held that orders under item 21 are not limited to circumstances where the source of the safety or health concern is located on the recipient’s land. The relevant circumstance is the condition of the land, not the cause of that condition. Accordingly, it did not matter that the retaining wall at risk of collapse was partly on the Council’s land.

Work may be required to another person’s land

There is no limitation on the location of the land to which things specified in item 21 can be required to occur. The power must be given a wide and beneficial interpretation and can require works on land or premises not owned or occupied by the recipient of the order.

The relevant qualification is that the things ordered to be done or not done, must be for the purpose of ensuring that land or premises is placed or kept in a safe or healthy condition. So long as this purpose fixes the relationship or connection to the other’s land, an order can be issued requiring works on land other than that of the recipient.

The Court noted that item 21 contrasts to other items of the Table to s124, which do specify the locations at which works can be required.

Council requiring works to be carried out on its own land was not improper

The Court rejected the argument that the Council had acted improperly in issuing the Order. The proper exercise by a Council of a power under s124 of the LG Act that requires works on the Council’s land, will not be for an improper purpose only by reason of the Council’s potential benefit from the works required by the order.

Trespass

An order that requires works on another’s land is nevertheless subject to an implied condition that any requisite authority required under statute or otherwise at law must be obtained.

When, as was the case here, the owner of the land on which the work were required to be conducted was the Council, the order could be construed as constituting the Council’s consent in that regard.

An order under item 21 does not imply necessary statutory approval

An order under s124 will not be construed as authorising a contravention of  a separate statutory obligation.

However, a person who carries out work in compliance with a requirement of a s124 order does not have to make an application under Division 1, 2 or 3 of Part 1 of the LG Act for approval of the work or an application under Part 4 of the Environmental Planning and Assessment Act 1979 for consent to carry out the work: see s138A.

Severance

In accordance with ordinary principles of statutory interpretation, the Court held that even if part of an order were invalid,  the invalid part can be severed so long as severance will not cause the remainder of the order to operate differently to the manner in which the whole order would have operated.

Certainty

Finally, the Court gave a practical analysis as to why the Order did, in fact, particularise in clear and unambiguous language what it required to be done and was not uncertain.

The Court approached the question on the basis that the order must be read as a whole, being mindful of the circumstances in which it was issued, and the purpose it seeks to address.

The order would only be uncertain if the wording made the specification of the work required ‘so uncertain as not to be a valid specification of the thing to be done‘.

But here the requirements of the Order were prefaced to be ‘carry out the following works in order to ensure the area around retaining wall D is made safe‘. This statement indicated in concise terms the subject matter of what needed to be done and could be used to interpret the Order’s more detailed requirements.

The Court specifically held that the following matters did not create uncertainty:

• a requirement to engage persons to prepare reports about the work to be done;
• a requirement to appoint a ‘suitably qualified and registered professional‘ such as a geotechnical engineer;
• a requirement to to do all necessary works as recommended by the engineers’ detailed reports.

Read the Court’s full judgment here: Mailey v Sutherland Shire Council [2017] NSWCA 343.

Should you wish to discuss this post please contact Stuart Simington, Partner on 82359704 or by email, at stuart.simington@lindsaytaylorlawyers.com.au