In Boulus Constructions Pty Ltd v Warrumbungle Shire Council  NSWSC 1368, the Court took a broad view of the definition of “person” who owes the statutory duty of care and affirmed its approach in The Owners – Strata Plan No 84674 v Pafburn Pty Ltd  NSWSC 659.
The decision concerned two applications:
The Court found that the defence of illegality could not affect the statutory duty. The fact that the works were performed in breach of the Environmental Planning and Assessment Act 1979 (NSW) did not justify denying the Council the relief it sought.
This turned on whether the two individuals concerned could be persons for the purposes of the Act.
The Court noted that, in the matter of The Owners – Strata Plan No 84674 v Pafburn Pty Ltd  NSWSC 659, it had held that a person “having substantive control over the carrying out of any work” for the purpose of ss (d) of the definition of “construction work” in section 36(1) of the Act, included a person able to control how the work was carried out.
The Builder argued that what constitutes as a “person” should be construed more narrowly so that a person is, for the purposes of the definition under ss (d) of section 36(1) of the Act, “a person who carries out construction work in their own capacity”, not including a person who acts as agent for another.
The word “person” is not defined under the Act to be limited to practitioners. The Act refers to persons who are practitioners if they carry out certain prescribed works (s 49). There are also other provisions of the Act where reference is made to persons who, because of the context, cannot be practitioners.
The Court noted that there is a presumption that the word “person” has the same meaning throughout the Act, unless the context of the usage of that word contemplates otherwise. Here, depending on the context of the usage of the word “person”, the word may be limited to practitioners, or contemplate a broad application of the word. The Court did not make a finding that Part 4 of the Act (which establishes the statutory duty of care) has such a limitation.
The Court also suggested that persons in the position of the managing director of the builder and the project site supervisor could find comfort in the statutory duty of care being subject to the proportionate liability regime under the Civil Liability Act 2002 (NSW), allowing them to identify concurrent wrongdoers and seek to have their liability for breach of the statutory duty limited under section 35 of that Act.
If there is a theme running through these decisions, it is that the scope and application of the duty under the Act is being given its broadest possible interpretation. It remains to be seen what the limits of that are. For now, whether or not a person is a “person” for the purposes of Part 4 of the Act will be a question of fact in each case, although not limited to a practitioner.
Author: Christine Jones
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Aksan v Godfrey  NSWCATAP 338
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Boulus Constructions Pty Ltd v Warrumbungle Shire Council (No 3)  NSWsc 1455
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Sunaust Properties Pty Ltd v The Owners SP no 64807 (No 2)  NSWCATAP 335
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Canterbury Local Environmental Plan 2012 (Map Amendment No 1) (2022-643) – published LW 28 October 2022
Cessnock Local Environmental Plan 2011 (Amendment No 35) (2022-623) – published LW 21 October 2022
Coffs Harbour Local Environmental Plan 2013 (Map Amendment No 5) (2022-644) – published LW 28 October 2022
Gunnedah Local Environmental Plan 2012 (Amendment No 15) (2022-624) – published LW 21 October 2022
Hawkesbury Local Environmental Plan Amendment (Pitt Town Common House) 2022 (2022-645) – published LW 28 October 2022
Lachlan Local Environmental Plan 2013 (Amendment No 3) (2022-646) – published LW 28 October 2022
Lake Macquarie Local Environmental Plan 2014 (Amendment No 45) (2022-647) – published LW 28 October 2022
Parkes Local Environmental Plan 2012 (Amendment No 6) (2022-625) – published LW 21 October 2022
Shellharbour Local Environmental Plan Amendment (Precincts – Regional) (Map Amendment No 1) (2022-648) – published LW 28 October 2022
Shoalhaven Local Environmental Plan 2014 (Amendment No 46) (2022-626) – published LW 21 October 2022
Shoalhaven Local Environmental Plan 2014 (Amendment No 47) (2022-627) – published LW 21 October 2022
Standard Instrument (Local Environmental Plans) Amendment (Canal Estate Development and Public Bushland) Order 2022 (2022-628) – published LW 21 October 2022
State Environmental Planning Policy Amendment (Water Catchments) 2022 (2022-629) – published LW 21 October 2022
State Environmental Planning Policy (Resources and Energy) Amendment (Dartbrook Mine) 2022 (2022-649) – published LW 28 October 2022
Sydney Local Environmental Plan (Green Square Town Centre) 2013 (Amendment No 4) (2022-630) – published LW 21 October 2022
Wagga Wagga Local Environmental Plan 2010 (Map Amendment No 9) (2022-650) – published LW 28 October 2022
Waverley Local Environmental Plan 2012 (Amendment No 23) (2022-631) – published LW 21 October 2022
Wentworth Local Environmental Plan 2011 (Map Amendment No 2) (2022-632) – published LW 21 October 2022
Wingecarribee Local Environmental Plan 2010 (Amendment No 66) (2022-633) – published LW 21 October 2022
Wingecarribee Local Environmental Plan 2010 (Map Amendment No 5) (2022-634) – published LW 21 October 2022
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.