Bathurst Regional Council (the Council) has brought proceedings to judicially review the decision of an officer of the Natural Resource Access Regulator (NRAR) to give an official caution on 3 July 2020 to the Council with respect to an alleged breach of the Water Management Act 2000 (WM Act). The alleged breach was that the Council, who was the holder of a water supply work approval for the Winburndale Dam, used the water supply work otherwise than in accordance with a condition of the water supply work approval, in breach of s 91B(2) of the WM Act.
During the Council's opening address at the hearing of the proceedings, the issue of this Court's jurisdiction to hear and dispose of the proceedings was canvassed. This issue had been raised by NRAR in its written submissions exchanged before the hearing. The Court enquired as to what was the Council's response to NRAR's submission that this Court lacked jurisdiction to review NRAR's decision to give the official caution. After a short adjournment, the Council applied under s 149B(1) of Civil Procedure Act 2005 for this Court to transfer the proceedings to the Supreme Court.
The basis for the transfer application is that it is more appropriate for the proceedings to be heard in the Supreme Court, as that Court, but not this Court, has jurisdiction to review NRAR's decision to give the official caution to the Council. The jurisdictional issue arises because this Court has jurisdiction to judicially review decisions and exercises of functions under certain planning or environmental laws, but not generally.
The function exercised by NRAR to give an official caution is conferred on NRAR by or under s 11(1)(e) or (f) of the Natural Resources Access Regulator Act 2017 (NRAR Act) and s 19A of the Fines Act 1996.
Under s 11(1)(e) of the NRAR Act, NRAR has the functions under the natural resources management legislation (which is defined in s 3(1) to include the WM Act) as specified in Sch 2 of the NRAR Act. One of the functions specified in paragraph (t1) of Sch 2 is that of issuing a penalty notice under s 365 of the WM Act.
Bathurst Regional Council v Department of Planning, Industry and Environment... [2021] NSWLEC 109 | Case summary | Zoe
Under s 11(1)(f) of the NRAR Act, NRAR has any other function conferred or imposed on it by or under the natural resources management legislation or any other Act. Section 19A(1) of the Fines Act confers one such function. It provides that "An officer authorised to issue a penalty notice may give a person an official caution instead of issuing a penalty notice…". As an officer of NRAR is authorised to issue a penalty notice under s 11(1)(e) and Sch 2 of the NRAR Act and s 365 of the WM Act, the officer is empowered by s 19A(1) of the Fines Act to give an official caution instead of issuing a penalty notice.
The upshot is that the decision of NRAR to give the Council an official caution, which is the decision that the Council seeks to review, was made in exercise of NRAR's functions under s 11(1)(e) or (f) of the NRAR Act and s 19A of the Fines Act.
The Land and Environment Court does not have jurisdiction to review the exercise of these functions. The Court does have the same civil jurisdiction as the Supreme Court would, but for s 71 of the Land and Environment Court Act 1979 (LEC Act), have to hear and dispose of proceedings to enforce any right, obligation or duty conferred or imposed by a planning or environmental law; to review or command the exercise of a function conferred or imposed by a planning or environmental law; or to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function: see s 20(2) of the LEC Act. Such jurisdiction, however, all pivots around decisions or exercises of functions under "a planning or environmental law". A "planning or environmental law" is defined in s 20(3) of the LEC Act by reference to a list of statutes. Neither the NRAR Act nor the Fines Act is included in this list of statutes. As a consequence, the Land and Environment Court does not have, by dint of s 20(2) of the LEC Act, the same civil jurisdiction as the Supreme Court to review decisions or exercises of functions under the NRAR Act or the Fines Act.
In addition, the Land and Environment Court has jurisdiction to hear and dispose of proceedings under s 336 of the WM Act: see s 20(1)(df1) of the LEC Act. Proceedings under s 336 of the WM Act are for an order to remedy or restrain a breach of the WM Act or the regulation. The Council's proceedings are not proceedings under s 336 of the WM Act. The summons commencing the proceedings does not claim, or seek an order to remedy or restrain, any breach of the WM Act, whether by NRAR or the Council itself.
As I have earlier noted, NRAR gave the official caution because it appeared to NRAR that the Council had used the water supply work (the dam) otherwise than in accordance with a condition of the water supply work approval, in breach of s 91B(2) of the WM Act. However, the Council has not brought proceedings under s 336 of the WM Act for an order to remedy or restrain its conduct that NRAR has alleged was in breach of the WM Act.
Instead, the Council, by the proceedings it has brought, seeks to review the conduct of NRAR in issuing the official caution to the Council. Although the Council contends that NRAR misconstrued the water supply work approval issued under the WM Act, which misconstruction founded NRAR's erroneous belief that the Council was in breach of the water supply work approval, the Council does not contend that NRAR thereby breached any provision of the WM Act. The proceedings brought by the Council against NRAR are not proceedings under s 336(1) of the WM Act seeking an order to remedy or restrain a breach of the WM Act by NRAR.
Accordingly, although the Land and Environment Court does have jurisdiction to hear and dispose of proceedings under s 336 of the WM Act, the proceedings brought by the Council in this Court are not such proceedings.
As a result, this Court does not have jurisdiction to hear and dispose of the proceedings. The Supreme Court does, however, have jurisdiction to hear and dispose of the proceedings. It is therefore appropriate to make an order under s 149B(1) of the Civil Procedure Act to transfer the proceedings to the Supreme Court.
Although I have found that this Court does not appear to have jurisdiction to hear and dispose of the proceedings, having regard to the claims that the Council currently makes in the summons commencing the proceedings, if it be later shown that the proceedings do in fact raise some claim that would have been within the jurisdiction of this Court, the effect of the transfer order will be to vest the Supreme Court with all of the jurisdiction of this Court, including jurisdiction to determine any question arising in any such proceedings: s 149E of the Civil Procedure Act. The Council will not therefore be precluded from raising a claim that would have been within this Court's jurisdiction by reason of the transfer of the proceedings to the Supreme Court.
Although NRAR did not oppose the transfer of the proceedings to the Supreme Court, it did seek an order that the Council pay NRAR's costs thrown away by reason of the transfer of the proceedings to the Supreme Court. The Council initially opposed that order. The parties sought time to prepare written submissions in support of their respective positions. I agreed and directed each party to file any evidence or submissions on costs according to a timetable. Subsequently the parties have agreed on the costs orders that they seek for the Court to make. The parties have agreed that the applicant is to pay the respondent's costs thrown away by the transfer of the proceedings from the Land and Environment Court to the Supreme Court in the agreed sum of $18,900, at the conclusion of the proceedings.
Accordingly, the Court orders:
1. Pursuant to s 149B(1) of the Civil Procedure Act 2005, proceedings 2020/215879 are transferred to the Supreme Court of New South Wales.
2. The applicant is to pay the respondent's costs thrown away by the transfer of the proceedings from the Land and Environment Court of New South Wales to the Supreme Court of New South Wales agreed in the sum of $18,900.
3. The costs are payable at the conclusion of the proceedings.
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Decision last updated: 08 October 2021
Parties
Applicant/Plaintiff:
Bathurst Regional Council
Respondent/Defendant:
Department of Planning, Industry and Environment trading as Natural Resources Access Regulator