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Norman Waterhouse

Costs sought against a Council for not taking enforcement action

In the recent judgment of Shahin v Randles & Ors [2020] SAERDC 43, Mr Shahin sought, but did not obtain, an order for costs against the City of Burnside (represented by Norman Waterhouse), a non-party to civil enforcement proceedings he had taken against neighbours pursuant to Section 85 of the Development Act 1993 (Act).

The proceedings related to issues Mr Shahin alleged about the occupation and construction of dwelling additions and a roof top balcony on neighbouring land, including that it was being built contrary to the approved plans. After initially bringing these concerns to the Council’s attention, the Council sought to address them by raising them directly with the neighbours and encouraging them to consider lodging a variation application. Despite pressure from Mr Shahin for the Council to pursue formal enforcement proceedings, the Council declined to do so and subsequently Mr Shahin instituted his own third party civil enforcement proceedings against his neighbours.

In the proceedings Mr Shahin sought a range of orders. However, the proceedings were ultimately resolved after his neighbours obtaining development approval for a development application that was submitted in order to remove any doubt surrounding what had, and had not, been approved. Mr Shahin sought a non-party costs order against the Council on the basis that it was the statutory body entrusted with the powers to enforce the Act. He alleged that it had acted unreasonably by failing to take action, therefore causing him to take enforcement proceedings. The Court declined to order costs against the Council and relevantly found:

  1. That despite the Court having broad power to order costs in such proceedings, making an order against a non-party should be exercised in “rare and exceptional” cases only;
  2. The Council sufficiently responded to the complaints made by Mr Shahin and reasonably explained why it didn’t propose to take formal action under the Act;
  3. The Council acted in accordance with its enforcement policy which set out how its discretion in relation to the taking of action in respect of unlawful activity is considered;
  4. The Council’s enforcement policy made it clear that the Council has a discretion which it will exercise in accordance with the principles of good governance and administrative practice;
  5. That the conduct of the Council was not unreasonable or disproportionate;
  6. That a relevant authority, in possession of significant enforcement powers, should exercise those powers cautiously.

Mr Shahin also sought costs against his neighbours, who, along with the Council sought costs against Mr Shahin. Ultimately the Court found that it was appropriate in the circumstances for each party to bear their own costs, primarily due to the issues between the parties and the merits of each claim not having been determined.

This decision is helpful case law for Councils in situations where they are being pressured by residents to take formal enforcement action where it feels this is not justified. It also highlights the benefits of a well written enforcement policy based on the principles of proportionality, consistency and transparency.

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 or Gavin Leydon on +61 8 8210 1225 or gleydon@normans.com.au.

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