Brickworks Ltd v Warringah Corporation [1963] HCA 18; (1963) 108 CLR 568 (24 July 1963)

HIGH COURT OF AUSTRALIA

BRICKWORKS LTD. v. WARRINGAH CORPORATION [1963] HCA 18; (1963) 108 CLR 568

Local Government

High Court of Australia
McTiernan(1), Windeyer(2) and Owen(3) JJ.

CATCHWORDS

Local Government - Injunction - Estoppel - Form of land use consent signed by President of Shire Council - Whether consent given - No record in Council minute book - Consent assumed in Council's subsequent correspondence - Injunction sought to restrain use of land in accordance with consent - County of Cumberland Planning Scheme Ordinance, cl. 41 (4).

HEARING

Sydney, 1963, April 19, 22, 23; July 24. 24:7:1963
APPEAL from the Supreme Court of New South Wales.

DECISION

July 24.
The following written judgments were delivered: -
McTIERNAN J. I am of opinion that the decision of Myers J. in this case is dismiss the appeal. (at p573)

WINDEYER J. I have had the advantage of reading the judgment to be delivered by my brother Owen. He has set out the facts. The narration of them leads, I think, inevitably to the conclusion that his Honour reaches. But I can understand the learned judge who tried the suit having taken the view that he did because of concessions that were made by the appellant, the defendant at the hearing. The emphasis that was thereafter placed by the parties on certain questions of law obscured some of the facts. But the essential question is one of fact. Did the respondent, the Council, consent to the extraction of clay and shale by the appellant Company from its land? The Company received through the post the formal notice described as "Land Use Consent No. 60/19", dated 22nd April 1960. This purported to be a notification of the Council's consent, upon conditions set out, to the extraction of clay and shale. It was signed by the President himself, instead of by or on behalf of the Shire Clerk, as the printed words which were struck out indicated would ordinarily be the case. But the evidence did not disclose that the Company had any reason to suppose that the document was not authorized by the Council. It was regular on the face of it. In the suit the Council disowned it. But no evidence was called to explain how, if it was not genuine, the Deputy Town Planner, whose initials are on it, had come to compose it, or how the President came to sign it, or how it came to be sent to the Company. And that is by no means all. Everything that the Council said and did, from April 1960 until after the institution of the suit, was consistent only with the statements in the document being correct. The Council knew that mining for clay was being carried on by the Company. It never suggested that it was without its consent. It said the very opposite. On 16th May 1960 it resolved that the Cumberland County Council should be told that it, the respondent Council, objected to a proposal that the Company be allowed to mine on Portion 5. And why? Because it said the Company had enough clay on Portion 4, which it was then working. Obviously the Council must have then assumed that the Company was doing so lawfully, and it must have known that could only be because it had the Council's consent. Later, some disputes arose between the Council and the Company about the way the Company was carrying on its operations on the land. On 6th March 1961 the Council resolved to notify the Company that, as it was not complying with the terms of the consent that had been given on 22nd April 1960, the Council regarded the consent as null and void. The Company was told of this resolution by a letter dated 8th March 1961. This document says that the Council regarded the consent as "null and void with effect from the date hereof", which may have meant either the date of the resolution (6th March) or the date of the letter (8th March). The Company promptly denied that it was not complying with the conditions. It asked for particulars of the breaches of them it was alleged to have committed. These were not furnished at the time, and the Company went on working the clay and shale. The Council then commenced this suit. (at p574)

2. The proceedings seem to have been misconceived in more than one respect. In the first place the Council's solicitors had asserted that the extraction of shale, even with consent, was unlawful. This proposition was incorrect. It was a result of a misreading of the Ordinance. In the second place, it seems that the Company was not, in fact, disobeying any of the conditions except one, performance of which had been waived. In the third place, it seems - although it is not necessary to decide the point - that the Council was not entitled to treat its consent as null and void because of a breach of any condition set out in the document, except the first where it is expressly provided for. If conditions really were not being complied with, the Council's correct course was not, it seems to me, to cancel its consent. Its correct course was to insist on a performance of the conditions, and if need be, to enforce performance by proceedings for the penalty that the Ordinance provides, and perhaps by seeking an injunction restraining the further extraction of clay and shale while the breach of the conditions continued. But, not only did the Council not insist on a performance of the conditions; it would not, for some time, even tell the Company in what respect it said they were being broken. For some reason, it had changed what it had earlier let it be thought was its mind on the matter. Perhaps the Councillors had not expected that residents would object to the Company's activities. Whatever the reason, the Council now wanted to stop them. It seized upon what it said was a breach of the conditions of the consent to demand that the Company cease work altogether. It commenced proceedings for an injunction. The suit was begun by originating summons; but the Council was ordered to file a statement of claim. In this it was said, for the first time, that the Council had never consented to the Company's extracting clay and shale and that what it was doing was unlawful. (at p575)

3. At the hearing of the suit the Company put its defence in this way: Accepting the Council's statement that there had in fact been no formal consent before the issue of the document of 22nd April 1960 and that the President had not had authority to sign it, it argued that, notwithstanding this, the document was regular on its face and that, in any event, it had been ratified. Myers J., not unnaturally, accepted the concession involved in this proposition, but rejected the arguments by which it was sought to displace it, and found against the Company. It must surely have been a surprise, to say the least of it, to the Council to find that, in proceedings it had commenced on the basis that it had given a consent, it had succeeded because it had not. Three things had led to this result. First, the Company's formal written application for consent made in April 1960 was said in evidence not to have been considered by the Council. The evidence on this point is not very satisfactory. But the Shire Clerk said that the Company's written application had never come before the Council; and this was not contradicted. He did not explain, and was not asked by either party to explain, why it was that the application did not go before the Council, nor what had in fact happened to it, nor how it came about that in later discussions the Council proceeded always on the basis of a consent on the terms of the document of 22nd April having been given. Secondly, there is no resolution of consent recorded in the Council's minutes. This led counsel for the Company to concede at the hearing that the Council had not given its consent. The register of consents, that under the Ordinance should have been kept, was not tendered. We do not know what it showed. The Planning Scheme Ordinance, cl. 41 (3), required that the Council should decide either to grant its consent to the application or to refuse it. If for forty days it did neither, it was deemed to have refused, and the applicant then had a right of appeal. There is no minute of consent. But neither, it seems, is there any minute of refusal. Putting aside then the notification signed by the President the only inferences that could be drawn from the absence of any record of a resolution in the minutes in April 1960 are either that the minutes are not complete, or that, as the Shire Clerk said, the application had not then been considered by the Council. It cannot be inferred from the absence of a minute that consent had then or at any time been refused. I do not understand how, when afterwards the Council said implicitly that the mining on Portion 4 was being done with its consent, and still later said expressly that it had consented, it could expect to obtain relief in equity on the basis that it had never consented at any time. If it had not been that counsel for both parties argued the case on the basis that there had been no consent, the inescapable conclusion must have been that what the Company did was done with consent. Whether or not a person consented to something is a question of fact. It may be proved that he did by proving an express consent or by showing conduct evidencing consent: Booton v. Clayton (1948) 48 SR (NSW) 336, at pp 339, 340; 65 WN 164, at p 167 . But I do not think a person can, by words and conduct, state that he has consented and is consenting, and then deny that he meant what he said and did. The position of a collective body is not radically different from that of an individual. The consent of a body corporate, such as the Council, to any course of action must be given at a duly convened meeting. And ordinarily it is given by a resolution that expressly, or by necessary implication, imports consent. It is, no doubt, possible to imagine that the President and all the Councillors and the Shire Clerk and the Planning Officer were somehow mistaken as to what the Council had decided, and that their later actions were the consequence of their believing that they had in fact earlier given their consent. But that, it seems to me, could only be so if the Councillors and the officers of the Council had all been inattentive or careless. There are no grounds for thinking that was so. The giving or refusing of a consent, as required by the Ordinance, was an important discretion entrusted to the Council as the "responsible authority". It is not to be assumed that the Council and its officers neglected their duties or discharged them in a perfunctory manner. The mining operations of the Company in fact engaged the close attention of the Council on several occasions. (at p577)

4. The case, as I see it, does not depend upon an estoppel, but on actual admissions of a fact. The Council said that it had consented. Until it spoke by the mouth of its lawyers it never said otherwise. But if, notwithstanding this, it can somehow be said that it did not in fact consent, then an estoppel seems to me to arise. The Council did not at any time before it commenced this suit repudiate what its President had told the Company. In effect it repeated it. And the Company relied upon these purported consents. Does not this found an estoppel? It was argued that it could not do so because estoppel by representation cannot prevent the performance of a statutory duty or the exercise of a statutory discretion. There is no doubt about the principle; but I doubt its application to this case. The decision of the Court of Appeal in Southend-on-Sea Corporation v. Hodgson (Wickford) Ltd. (1962) 1 QB 416 was relied on. The facts of that case do bear a superficial resemblance to those of this case. But there is a distinction. There the Corporation had, by its engineer, said that its permission for the use of land as a builder's yard was not in fact and law required. It was mistaken in this view; and it was held that what the engineer had said could not create an estoppel preventing the Corporation from exercising its statutory discretion to forbid the land being used as a builder's yard. That is to say, the Corporation had in effect said to the respondent company there, "you do not need our permission; we have no discretion to prevent your action". In the present case, on the other hand, the Council said in effect, "you do need our permission; we have a discretion which we have exercised in your favour". It seems to me that, in the circumstances of this case, the Council was estopped from denying that it had exercised its discretion in the manner it had said it had done. The case is not, as I see it, one in which a consent once given could be withdrawn. That could only, I think, be so if the consent were expressly given upon a condition that it might be withdrawn in specified events. And, moreover, it is not now said that consent was given and later withdrawn. The allegation now is that it was never given. The case of The New South Wales Trotting Club v. Council of the Municipality of the Glebe (1936) 37 SR (NSW) 288; 54 WN 77 is entirely different from the present case. (at p578)

5. But, it was urged, admitting that the Company set about mining the clay on the faith of what the Council had said, the clay that it got was very valuable. Therefore, so the argument ran, it did not act to its prejudice; and thus one element necessary in an estoppel does not exist. This seems to be too narrow a view. The Company, relying on the consent, spent money in getting its clay from Portion 4. It did not appeal against a refusal of consent, because it had been told it had a consent. It did not persist in its application to work Portion 5. It understood it was entitled to work Portion 4 until it was worked out. Whether the Company's expenditure of money to get the clay proved profitable to it or not is, it seems to me, beside the point. The ultimate economic value to the Company of the liberty to remove clay would depend upon what profit the Company made from the sale of bricks, what other clay pits it had or could obtain, and a variety of other matters. Its contention that it had been prejudiced by the Council's conduct cannot be answered by simply saying "well, you lost nothing; you got a lot of very valuable clay". Indeed, I thought the emphasis on this aspect showed that the Council had somewhat misapprehended both the Company's position and its own duty. The clay belonged to the Company. It could not be extracted without the Council's consent. But what it was worth to the Company was not, and is not, the concern of the Council. The Council did not own the clay. Its consent was not the conferring of a right that was in its gift. Its only duty was to consider the Company's application for permission to extract clay, having regard to the character of the neighbourhood and the other matters that, in the interest of the public, it should consider when exercising its powers under the Planning Scheme. (at p578)

6. I go now to another aspect. The suit was commenced in the equity jurisdiction of the Supreme Court. The relief sought was an injunction. It was argued that, because the Ordinance provides for a daily penalty, and proceedings for a penalty had not been taken, the remedy of an injunction was not available. I do not think it necessary in this case to make any pronouncement on that question, which has arisen also in another case before this Court not yet decided. I shall simply assume for present purposes that, in accordance with the practice in New South Wales, the Supreme Court can restrain by injunction breaches of town planning schemes, building regulations and similar provisions, at the instance of local authorities responsible for their enforcement. The following cases are among many examples of the exercise of this jurisdiction in New South Wales: Council of the Shire of Hornsby v. Danglade (1928) 29 SR (NSW) 118; 45 WN 197 ; Ku-ring-gai Municipal Council v. Edwards (1956) 57 SR (NSW) 379; 74 WN 93 ; Cumberland County Council v. Corben (1960) 77 WN (NSW) 650 . But assuming that an injunction might be granted, the question is whether, in the circumstances of this case, an injunction should have been granted. The Council's contention is that it comes as plaintiff, asserting the same right as the Attorney-General might have asserted on its relation: Local Government Act, 1919 (N.S.W.), s. 597. It comes, it says, pursuant to a statutory duty to protect the interest of the public. But the Court has a discretion in the case of a suit brought by the Attorney-General at the instance of a Council, just as it has in other cases when an injunction is asked for. One consideration is whether the Council had given the defendant any ground for supposing that it had given its consent to what he was doing. The remarks of Farwell J. in Attorney-General v. Wimbledon House Estate Co. Ltd (1904) 2 Ch 34, at pp 42, 43 are directly in point. Moreover, it somewhat begs the question in this case to say simply that it is the Council's duty to see that the Planning Scheme is enforced and carried into effect. The Council's duty under the Scheme was to consider the application for consent on its merits, to give or refuse its consent, and to notify the applicant of its decision. It does not say that it did this. Its conduct could obviously be taken as an acquiescence in what the Company was doing. A tacit acquiescence does not suffice where a consent in writing is required: Kerr v. Corporation of Preston (1876) 6 Ch D 463 . But that is not the case here. The doctrine of equitable estoppel by acquiescence - as defined by Fry J. in Willmott v. Barber (1880) 15 Ch D 96 - depends, of course, upon the party said to have acquiesced being aware of his right. And it was argued that, when it seemingly acquiesced, the Council did not know that it had a right to restrain the Company. It was said that it only acquiesced and said it consented because it mistakenly thought it had earlier consented; and that, its lawyers having found that it had not, its acquiescence was at an end and could not be relied upon to justify any further activity by the Company. As I have said, I find some difficulty in the notion of an equivocal consent of that sort. But, even if there was no equitable estoppel by acquiescence in the strict sense, the Council's conduct was misleading. Its actions and inactions, its statements and its silences, together constituted a representation that at some stage or other it had consented to the Company's application. They did not mean that it had refused it. In my view, the case is not one for an injunction. (at p580)

7. I would allow the appeal. (at p580)

OWEN J. The appellant was the defendant in a suit in the Supreme Court of New South Wales which was heard by Myers J. and in which his Honour granted an injunction restraining it from extracting clay and shale from certain land of which it was the owner and which was described as Portion 4 in the Parish of Broken Bay. (at p580)

2. Before dealing with the facts, it is convenient to refer to a number of clauses of the County of Cumberland Planning Scheme Ordinance which apply to the case since the land in question was zoned under the Ordinance as a rural area. (at p580)

3. The combined effect of cl. 26, the Table to which that clause refers and cl. 29 (2), was to forbid the extraction of clay and shale from the land without the consent of the responsible authority and, under cl. 6 (1), the respondent Council was the responsible authority for this purpose. The effect of cll. 27, 29 and 41 (3) (a) is that where application is made to the responsible authority for its consent to the user of land for a particular purpose, that authority is required to decide whether to give or withhold its consent and, in the former event, to decide what conditions, if any, shall be imposed. A number of matters set out in cl. 26 are to be taken into consideration in deciding whether to grant or refuse consent. Under cl. 41 an application for consent must be made in writing and, if consent is granted, notice thereof is to be given to the applicant. Clause 41 (4) provides that an application is to be deemed to be refused if the responsible authority neglects or delays to give within forty days after service of the application a decision with respect thereto. (at p580)

4. The facts are that the appellant was desirous of extracting clay and shale for brickmaking from an area of land, comprising Portions 4 and 5 in the Parish of Broken Bay which it had purchased for this purpose. Early in April 1960 meetings took place between representatives of the appellant and the President and officers of the respondent Council, as a result of which a written application, dated 12th April 1960, was made to the Council for its consent to the use of Portions 4 and 5 for the purpose of extracting clay and shale. The application was accompanied by a letter of 12th April 1960 from the appellant which stated that the matter was one of urgency since a deposit of clay and shale which the appellant was then working was nearly exhausted and unless a further pit could be opened, it would be forced to close down its brickmaking works. The letter accordingly urged that the appellant be granted temporary permission to begin operations on Portions 4 and 5 pending a full investigation by the Council. Some days later the appellant received through the post a document signed by the President of the Council. The document, which was partly in print and partly typed, was headed

"Warringah Shire Council
File M 44
Warringah Shire No. 131
County of Cumberland Planning Scheme Ordinance"
"Land use Consent. No. 60/19"

and was addressed to the appellant. It had on it the typed initials of the Shire Deputy Town Planning Officer followed by another set of typed initials, presumably those of the typist, and was in the following terms:

"Description of Land: Portion 4, Parish of Broken Bay,
near Booralie Road, Terrey Hills.
The Council of the Shire of Warringah as the responsible
authority under the County of Cumberland Planning Scheme
Ordinance hereby consents to the abovementioned land being
used for the following purpose:
extraction of clay and shale for brickmaking subject to the
following conditions:

(a) This Town Planning Consent shall be void if the

development to which it refers is not substantially commenced

within two years after the date of the consent; provided
that the responsible authority may, if good cause be shown,
grant annual extensions or renewals of such consent
beyond such period up to a further period of three years.
(b) the extraction of clay and shale being restricted to that
part of Portion 4 not likely to be required by the

Department of Civil Aviation;

(c) the location of the workings being selected by the

Government Geologist;

(d) workings being at least 100' from all roads and portion
boundaries and all trees within this 100' strip being
preserved;
(e) the workings at all times being maintained in a safe
condition and drained to the requirements of the Mines
Department;
(f) the location and erection of any new brick manufacturing
works being the subject of a building application meeting
all requirements of the Health & Building Department;
and
(g) compliance with all requirements of the Mines Department
and the lodgement of a bond of at least 1,000 pounds with the
Mines Department prior to the removal of any material.
Dated this twenty-second day of April, 1960.
W. Berry Shire President

Important

(1) It is to be clearly understood that the above consent is
NOT an approval to carry out any structural work. A
formal Building Application must be submitted to Council
and be approved before any structural work is carried
out to implement the above consent, also the applicant
is not relieved of any obligation to obtain any other
approval required under any other Act.
(2) It is provided by Clause 59 of the County of Cumberland
Planning Scheme Ordinance that any person who

contravenes or fails to comply with any of the conditions

of this consent shall be guilty of an offence and be liable
to a penalty of 50 pounds and also a daily penalty of 5 pounds
per day
for any continuance of the offence." (at p582)

5. It will be noticed that the document purports to be a grant of consent but counsel rightly treated it as a notice that consent had been given. Under s. 87 of the Local Government Act the President of a Shire Council is declared to be the chief executive officer of the Council and is required to give effect to the provisions made by or under the Act and to any resolution which has been passed by the Council. The President was therefore a person who might properly sign the document, assuming of course that the Council had consented to the use of the land for the purposes set out in it. (at p582)

6. On receipt of the document the appellant proceeded to open and work a pit on Portion 4 and I have no doubt that it did so on the assumption that consent had been given by the Council. (at p582)

7. The evidence shows that a copy of the document was sent by the Shire Clerk of the Council to the Cumberland County Council shortly after its issue. It was, no doubt, the practice to send on to the County Council copies of notices of consent given under the Ordinance. It appears also that the Council had received two letters, dated 21st and 25th March 1960 respectively, from the County Council relating to two applications for mineral leases to mine for clay and shale in an area in the Parish of Broken Bay which did not include Portions 4 and 5, the applicant for the leases being a nominee for the appellant. The letters were not put in evidence but it is clear that the County Council desired to have the views of the Council on the applications. The two letters were brought before a Council meeting on 16th May 1960 when it was resolved that a reply be sent to the County Council in terms which appear in a letter of 18th May 1960 from the Council to the County Council. That letter, after referring to the two letters from the County Council and stating that they had been considered by the Council at its meeting on 16th May, went on to say that the writer, the Shire Clerk, had been directed to request that the applications for leases be refused on the grounds that

"(a) the nominee, Brickworks Ltd. has a considerable quantity
of raw material available in part of Portion 4, Parish of
Broken Bay;
(b) mining of this nature should be restricted to a limited
number of working faces to prevent the spoilation (sic)
of the locality and the required number of working faces
can be obtained in Portion 4."

It stated further that "it is also advised that this Council considers further consideration could be given to the subject applications when the deposits located on Portion 4 are worked out . . . ". The letter bore the notation "File M 44", that being the file number on the document of 22nd April which had been sent to the appellant. (at p583)

8. The next relevant fact is that on 28th July 1960 the Council wrote to the appellant stating that the latter's vehicles carting material from the pit on Portion 4 were dropping clay on Booralie Road, a public road which ran near the pit, and that this was creating a traffic hazard. The letter asked for the appellant's co-operation to eliminate this and suggested that an "all weather roadway" be constructed on Portion 4 from the loading area to Booralie Road. On 5th August the appellant replied that it would comply with the Council's request and this, in fact, it did by building the suggested roadway. Shortly afterwards, on 9th August 1960, the appellant sent the Council a letter headed "Re application for permission to carry out development - File M 44". It began by referring to "our letter of 12th April 1960 and your Council's Notice of Land Use Consent No. 60/19 dated 22nd April 1960" and went on to "make application for similar consent of the Council in respect of Portion 5 Parish of Broken Bay". To this the Council replied that the appellant's letter had been considered at a Council meeting on 5th September "when it was decided to refuse your application for the following reasons: -

(a) considerable quantities of raw material are available in
part of Portion 4; and
(b) mining of this nature should be restricted to a limited
number of working faces to prevent spoilation (sic) of the
locality and the required number of working faces can be
obtained on Portion 4."

The heading of the letter mentioned "No. 131", that being the number on the document of 22nd April 1960, and "File M 44". On 26th September 1960 the Council again wrote to the appellant. The letter bore the number "131" and referred to a recent inspection by representatives of the Council and of the appellant of Booralie Road. It went on to say that the probable cost of reconditioning a length of this road, which was said to be falling into disrepair because of its use by the appellant carting clay from Portion 4, would be 5,000 pounds and that the Council had decided that the appellant be asked to bear the full cost of reconstruction of this length and any further section that might show signs of disintegrating because of excessive loading of trucks operated by the appellant, otherwise action might have to be taken to limit the weight of loads carried on the road. The appellant replied on 30th September suggesting that a conference be held between representatives of the Council and its own officers. The conference was held and thereafter further correspondence took place in which the appellant pointed out that it had complied promptly with the request that it should build an all weather road from its pit to Booralie Road and claimed that, for various reasons, it would be unfair to ask it to bear the whole cost of reconstruction of Booralie Road. Instead it offered to bear a proportion of the cost. The reply was that the Council had decided to adhere to its decision that the appellant should bear the full cost of the work. Whether the road was reconstructed and, if so, whether the appellant paid for it, does not appear. (at p584)

9. On 8th March 1961 the Council sent the appellant a notice headed "Warringah Shire No. 131" in the following terms:

"In the Matter of Conditional Land Use
Consent No. 60/19 dated 22nd April 1960
respecting part of Portion 48 Parish of Broken
Bay.
In pursuance of a resolution passed by the Council of the
Shire of Warringah at a duly convened Meeting of Monday,
6th March 1961, Brickworks Limited is hereby notified that
due to non-compliance with the full terms of the

above-mentioned Conditional Land Use Consent No. 60/19, this Council

regards the said Conditional Land Use Consent as null and void
with effect from the date hereof.
Dated this Eighth day of March, 1961.
(J. Morgan)
Shire Clerk."

The appellant replied on 10th March 1961 that it had forwarded the notice to its solicitors; that it had no knowledge "of any non-compliance with the terms of Conditional Land Use Consent No. 60/19" and asked for details of the alleged non-compliance. No such details were, however, supplied until a later date. Instead the solicitors for the Council wrote to the appellant on 23rd March stating that, notwithstanding the notice of 8th March, the appellant was still taking clay and shale from Portion 4 and that, under the Planning Scheme Ordinance, this was a purpose for which the land could not be used even with the consent of the Council. The letter ended with the statement that unless the appellant forthwith ceased to extract clay and shale steps would be taken to restrain it from doing so. The letter was based upon a misunderstanding of the Ordinance which, as has been pointed out earlier, permitted the use of the land for the purpose of mining for clay and shale provided the Council consented thereto. On 11th April 1961 the solicitors for the Council wrote to the appellant's solicitors giving the particulars of the alleged breaches of the conditions of "the planning consent". These were

"(b) (i) working outside Portion 4.
(ii) part of the work in Portion 4 is within the area required
by the Department of Civil Aviation.
(g) Failure to lodge with the Department of Mines a bond in
the sum of 1,000 pounds".

In fact the appellant had not worked outside Portion 4 nor was any part of the work done on Portion 4 done within an area required by the Department of Civil Aviation. The appellant had not lodged a bond with the Department of Mines, although ready and willing to do so, for the very good reason that that Department, when approached, had stated that it did not require any bond to be lodged. On 28th April 1961 the statement of claim was issued. In it the Council alleged that it had at no time given its consent to the use of Portion 4 for the extraction of clay and shale. It alleged also that the document of 22nd April 1960 sent to the appellant under the signature of its President was unauthorized and that, in any event, the appellant had committed breaches of Conditions (b), (c) and (g) contained in that document. This was the first occasion on which an allegation was made that the consent of the Council to the use of Portion 4 for extracting clay and shale had not been given and that the document of 22nd April 1960 signed by the President was an unauthorized document. The Council's previous conduct seems to me to be consistent only with the fact that consent had been given. On 16th May 1960 it had resolved to oppose the grant of mineral leases to the appellant or its nominee on the ground that considerable quantities of clay and shale remained to be extracted by the appellant from Portion 4 and that the required number of working faces could be obtained in Portion 4. It had gone on to suggest that further consideration might be given to the grant of the leases when the deposits on Portion 4 were worked out. In July 1960 it had required the appellant to take steps - which the latter took - to prevent clay taken from Portion 4 dropping on to Booralie Road. In September 1960 it had refused the appellant's request that it should be granted a consent to the extraction of clay and shale from Portion 5 "similar" to that already granted in respect of Portion 4 and had based its refusal on the fact that the deposits on Portion 4 had not yet been worked out. In October and November 1960 it had insisted that the appellant should bear the cost of reconditioning Booralie Road which, it claimed, had been damaged by the appellant's vehicles carting clay and shale from Portion 4. Finally, in March 1961, it had claimed that "Conditional Land Use Consent No. 60/19 dated 22nd April 1960" relating to Portion 4 was "null and void" as from 8th March 1961 because some of the conditions imposed by that consent had not been fulfilled. (at p586)

10. In the face of these facts it is obvious that the task of proving the allegation in the statement of claim that consent had not been given to the appellant to extract clay and shale from Portion 4 would be a difficult one. The evidence directed to this issue came in the first place from the Shire Clerk. During his evidence in chief he was referred to the appellant's application of 12th April 1960 and the transcript goes on:

"Q. Was the application which has just been tendered considered
by the Council at any meeting?
A. By the Council?
Q. Yes, at any meeting or at any time?
A. The application itself?
Q. Yes; the application which has just been tendered, which
is an application of 12th April 1960.
A. No; that application was not considered - by the Council.
His Honour: That is, at any time?
Mr. Hope: Q. At any time - is that so?
A. Well, perhaps I should qualify it - if I use the expression
"at any time", perhaps I should qualify my statement.
Q. In what way?
A. Well, the Council did have the matter before it at a

subsequent date - not that application but as a result of

objections raised to it by certain people.
Q. That was in 1961, was it?
A. That was in 1961, yes.
Q. Well, we will deal with the year 1960 - it was considered
by the Council in 1960?
A. Yes, that is it.
Q. Well, was it considered by the Council?
A. Well, it was not actually considered by the Council in 1960.
Q. During 1960 did the Council pass any resolutions at all
in respect of this application?
A. The application itself?
Q. Yes.
A. No."

In cross-examination the witness' attention was drawn to the letter of 18th May 1960 to the County Council and he agreed that it correctly set out the Council's decision made at its meeting on 16th May. Another officer of the Council who had been its Deputy Town Planner from 1956 to 1961 was then called. His evidence in chief was limited to a description of Portion 4 and the excavations carried out on it by the appellant. In cross-examination he said that he had attended most of the Council meetings held since the beginning of April 1960. His recollection of many matters put to him was poor but, when shown the appellant's application of 12th April 1960 and asked whether it had been considered by the Council, he replied that it had not been considered. By that he appears to have meant that it was not considered by the Council prior to the issue of the document of 22nd April 1960. That was the whole of the oral evidence on this vital issue and it seems to me to be far from satisfactory. (at p587)

11. The Council's minute books were then produced. They were very bulky and were not put in evidence but after both counsel had examined them, counsel for the appellant stated that he was "willing to accept the position that there was no formal relevant authority given to the President by resolution of the Council". It is clear that this referred to the authority of the President to sign the document of 22nd April 1960 and related to the period between the date of the application and 22nd April 1960. The case proceeded thereafter on the assumption that the Council had not considered the application of 12th April prior to 22nd April and had not, during that period, authorized the President to sign the document. This was no doubt due to the fact that no minute relating to the grant of consent appeared in the minute book prior to that date. (at p588)

12. I should add that no evidence was led on behalf of the Council to explain how the document of 22nd April came to be signed and sent to the appellant or how it came about that the Council had acted as it did in connexion with the applications for mineral leases in May 1960 and the later application by the appellant for a consent to work Portion 5 similar to the consent granted in respect of Portion 4. Nor was any explanation offered of its actions with regard to the use of Booralie Road by the appellant's vehicles or of the notice which it had given the appellant terminating the consent for breach of conditions contained in it. The only explanation of these matters was put forward by counsel in the course of argument when he suggested that the Council and its officers must have forgotten that consent to the use of Portion 4 by the appellant had not been given. This seems to me to be an improbable state of affairs. There was no evidence nor was it suggested in argument that the President or the officers of the Council had been improperly induced to act as they did and, but for one matter to which I shall presently refer, I would have thought that the proper conclusion was that consent had been given by the Council before the document of 22nd April was sent to the appellant and that, for some reason or another, that fact had not been recorded in the minutes. The issue of the document of 22nd April over the signature of the President gave rise to a presumption that the Council's consent had been given and that presumption was greatly strengthened by the Council's subsequent actions. The only material in rebuttal consisted of the meagre and unsatisfactory oral evidence and the fact that no record of a minute granting consent appeared in the Council's minute book. I would certainly not be prepared to hold that the Council had discharged the onus of showing that it had not, prior to 22nd April, consented to the appellant's application to extract clay and shale from Portion 4 and that the document of that date was not one which the President had authority to issue. (at p589)

13. But, as I have already said, after the minute book had been examined the hearing before Myers J. and the arguments on the appeal to this Court proceeded upon the assumption that no consent had been given before 22nd April because of the absence of a minute relating to the application prior to that date. It does not appear that, as a result, counsel for the Council refrained from tendering any other evidence which might have been available to show that consent had not been given. Nevertheless I am reluctant to hold that what the parties treated as being the fact was not the fact. Accordingly I will assume that the document of 22nd April was signed by the President and sent to the appellant without any prior consideration by the Council of the application of 12th April. On that assumption, I reach the same conclusion that the Council at least failed to discharge the onus of proving that it had not consented to the application after 22nd April. Indeed an affirmative finding should, in my opinion, be made that after 22nd April the Council approved or adopted the President's action in issuing the document of that date and that that approval or adoption itself amounted to a consent. It was contended, however, that, under cl. 41 (4) of the Ordinance, the application of 12th April 1960 must be deemed to have been refused after the expiration of forty days from the date of its service and that after the lapse of that period the application could no longer be considered. The purpose of that sub-clause is to enable a dissatisfied applicant to exercise the right of appeal given by s. 342N (2) of the Local Government Act where a council has neglected or delayed to make a decision on the application within forty days and I think it is doubtful whether it has the effect of preventing a council from granting or refusing an application after the period mentioned has expired. But it is unnecessary to decide whether that is its effect because the decision made by the Council at its meeting on 16th May 1960 to oppose the grant of the mineral lease applications on the ground that the clay and shale deposits on Portion 4 were available to and being worked by the appellant seems to me to amount to an adoption by the Council of the document of 22nd April and to a consent to the user of Portion 4. On the assumption that there had been no earlier consent, the inference is open and should be drawn that at that meeting the Council either had before it a copy of the document of 22nd April or was aware of its terms and approved of them. Consent was therefore given within the period of forty days. (at p589)

14. Accordingly, even if the case is dealt with on an assumption of fact which I feel to be wrong, I am of opinion that the suit fails and should be dismissed. In these circumstances I have not found it necessary to deal with the other submissions made on behalf of the appellant. (at p590)

ORDER

Appeal allowed with costs. Decree appealed from set aside. In lieu therof order that suit be dismissed with costs.