Environmental Planning And Assessment Act

Environmental Planning And Assessment Act

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Environmental Planning And Assessment Act

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Environmental Planning And Assessment Act

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Ellen is a graduate of The College of Alternative Medicine and is looking to start her own business. She decides to open a meditation studio and looks around the inner city suburb of Paddington for suitable premises. She eventually finds a terrace house near to Oxford St., the main street of Paddington in Sydney, NSW
The owner of the premises is willing to enter a 12 month lease however Ellen asks him to wait for a week so that she can check with the local council as to the suitability of her business.  Ellen attends the council offices and goes to the counter marked “Business Inquiries”.
She asks several questions of the council employee including a question about building work in the area.  She says “my meditation studio requires a calm environment is there anything that could cause noise nearby?”
The council officer is called away before being able to answer.  When he returns he has a very quick look at the computer and says to Ellen “relax everything will be fine”.  Ellen signs the lease the next day however within 2 weeks of opening the meditation studio she sees builders arrive next door.
She asks one of them how long they will be working next door. The builder replies “It’s a big job, a total renovation. It should take at least 6 months”.  Ellen tries to run her meditation studio but the noise from the building is too stressful on Ellen and her clients.  A month into the lease, Ellen is so stressed by the development noise from next door, that she develops a nervous disorder that threatens her career in alternative medicine.
Ellen reduces the operating hours of her meditation studio to avoid the builders’ noise but starts to fall behind in her rent for the premises.
In the present case, the issue arises if Elen can bring a claim against the local council regarding the advise received by her that the neighborhood is calm and she can run her meditation studio without any disturbance.
Rule: A negligent misstatement can be described as the information or advice that was provided honestly, but to be management or inaccurate. The action for such negligent misstatement is a comparatively recent development of the common law. While it was decided by the English Court of Appeal in Derry v Peak (1889) had arrived at the conclusion that negligently statement was not sufficient for supporting an action policy, because when a non-fraudulent misrepresentation has been made without the presence of a contract or a fiduciary obligation, it was not sufficient for establishing the duty of care (Donoghue v Stevenson, 1931). However, this decision was reviewed and upturned by the House of Lords in Hedley Byrne & Co v Heller & Partners (1964). It was held that liability may arise in tort for making a negligent misstatement under the circumstances where the information has been sought from a person who has certain special skill or knowledge and also where such person is aware of the fact that the person seeking the advise or information is going to rely on it. The High Court of Australia and followed his decision in Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968).
Application: In the present case, Ellen have relied on the information provided by the Council. Under these circumstances, it was reasonable for Ellen to rely on the information under the circumstances of the case.
Contract Law
Has there been a breach of contract between Ellen and Land Lord for non-payment of rent?
Issue: the issue that is present in this question is if Ellen is allowed by the law to rescind the contract created between her and the landlord or if the landlord can sue Ellen can sue for the non-payment of rent as provided by the contract between them.
Rule: A remedy is not provided by the common law in case of an innocent misrepresentation and the only exception in this regard is that the negligent mis-statement. It is regarded needs to be noted that negligent misrepresentation is treated as a part of innocent misrepresentation. However, it is a relatively new area of law, and it is related with your economic loss suffered by the innocent party (Bissett v. Wilkinson, 1927). In this regard, it is required that there should be a duty of care present on part of the party and under the circumstances, it should be reasonable to rely on it (San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (NSW), 1988). However, it is a tort and remedy available for it is present in the form of damages. Therefore, the injured party is not provided a chance to escape a bad bargain. In this way, it is not available to such a party to rescind the contract.
Application: in the present case, a contract has been created between Ellen and the landlord. However in this case, negligent misrepresentation was not made by the landlord. At the same time, the landlord did not have a duty of care towards Ellen.
Issue: the issue in this case is if it can be held that the council was liable under the circumstances for the information that was supplied by it to the general public, including Ellen.
Rule: The law provides in such cases that a person has a duty of care regarding the advice or the information provided by such person if he is carrying on a business or profession during the course of which, advice or information has been provided by such person, that was of the nature which requires the skill and competence or he otherwise professes to have such skill and competence and at the same time the person has given advise or information which he knows or should have known that the recipient was going to rely upon it.
In this way, the liability for making a negligent misstatement is not restricted to the persons who carry on or profess to carry on a business or profession or an occupation that requires the presence of such skill and competence.
In Shaddock V Parramatta City Council (1981), the appellants had claimed to suffer the loss due to their reliance on the erroneous information that was provided to them. This information has been provided innocently but negligently. Therefore, it was established that the liability for negligent misstatement arises when the government authority should have known that the person seeking the information is going to rely on it and may suffer a loss if the information proves to be incorrect.
Application: in the present case, Ellen had sought some information from the local council. However, the person present at the counter had given the information negligently. He stated that there is nothing nearby that may cause a noise. Under the circumstances, it is clear that the information was provided negligently and under the circumstances where it was reasonable for Ellen to rely on such information. Therefore, if Ellen has suffered a loss due to such negligent misstatement, she has a cause of action against the council.
Bissett v. Wilkinson (1927) AC 177
Derry v Peak (1889) 12economics 337
Donoghue v Stevenson [1931] UKHL 3
Hedley Byrne & Co v Heller & Partners [1964] AC 465
Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556
San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment nursing (NSW) (1988) 162 CLR 340
Shaddock V Parramatta City Council (1981) ALR 385

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