Fordham & Anor v Fordyce

LEGISLATION CITED: Access to Neighbouring Land Act 2000 (NSW) s 11, s 24, s 26, s 27, s 27(2)(b), s 29(1), s 31, s 31(1), s 31(2) Local Courts Act 1982 (NSW) s 73, s74

APPLICANT J B Simpkins SC (barrister) SOLICITORS LEGAL REPRESENTATIVES: Woolf Associates RESPONDENT M G Craig QC SOLICITORS PMF Legal

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT HIS HONOUR: An order for access to land is made 1 The applicants in this court, Mr and Mrs Fordham, are neighbours of the respondent in this court, Mrs Fordyce. Mrs and Mrs Fordham are the owners and occupiers of 21 Bell Street, Burraneer and Mrs Fordyce is the owner and occupier of 23 Bell Street, Burraneer. 2 On the common boundary of their respective properties is a dilapidated retaining wall. Mrs Fordyce wished to replace the wall. Mrs Fordyce made application under s 11 of the Access to Neighbouring Land Act 2000 (NSW) ("Access Act") for an order for access to the land of Mr and Mrs Fordham. The application was made to the Local Court as is required by the Access Act. 3 Originally, the purpose of the access sought was to demolish the existing dilapidated wall and replace it with a new retaining wall. In a subsequent application, the purpose changed to removing the existing wall and instead constructing a battered slope to form the boundary. 4 As part of the works proposed the applicant sought to remove certain hedges, trees and shrubs on Mr and Mrs Fordham's land within 2.5 metres of the eastern boundary. 5 Mrs Fordyce's applications were contested by Mr and Mrs Fordham for some time. Eventually, however, after protracted negotiations, the parties reached a compromise in an agreement dated 24 May 2005 in the form of orders to be made by the Local Court. 6 On 24 May 2005, the Local Court, constituted by Magistrate R J Abood, made orders in the form agreed by the parties. These orders granted Mrs Fordyce access to Mr and Mrs Fordham's land for a period of time for the purpose of carrying out the work specified in the order, including the removal of the existing retaining wall and the construction of a batter slope and toe retaining wall in its place. An order for costs of the application is made

7 The making by the Local Court of those orders resolved all matters in issue between the parties in relation to the subject of the application except for the question of costs. The question of costs was stood across to the following day, 25 May 2005, for hearing. The hearing on costs took place before Magistrate Abood on 25 May 2005. Magistrate Abood reserved his decision. 8 On 26 September 2005, Magistrate Abood delivered his decision on the question of costs. He published written reasons for his decision. He decided that each party was to pay its own costs.

An appeal against the order for costs is lodged 9 On 19 October 2005, Mrs and Mrs Fordham filed an application Class 3 in this Court. The application stated that the application was brought under s 31 of the Access Act. Section 31 of the Access Act states relevantly: "(1) A party to proceedings before a Local Court for an access order may appeal to the Land and Environment Court, on a question of law, against a decision to grant or not to grant an access order. (2) The appeal must be made within 30 days after the decision to grant or not to grant the access order is made."

10 The application stated that the decision against which the applicants were appealing was the decision of Magistrate Abood dated 26 September 2005. 11 As the application Class 3 was filed on 19 October 2005, the appeal against this decision of 26 September 2005 was within the 30 day period fixed by s 31(2) of the Access Act. 12 The application did not state that it was an appeal against the earlier decision of the Local Court to grant an access order made by Magistrate Abood on 24 May 2005. The 30 day time period for lodging an appeal against that decision had well and truly expired by 19 October 2005. 13 The appeal was fixed for hearing in this Court today, 28 February 2005. At the outset, the question was raised as to whether the appeal was competent. By consent, this issue was addressed first, for the obvious reason that if the appeal was incompetent, it should be dismissed without the necessity to determine the grounds of appeal. The applicants' submissions 14 Mr Simpkins SC, with whom Mr Johnson of counsel appeared for the applicants, put his submissions in the alternative. 15 The first submission was that the words in s 31(1) "a decision to grant or not to grant an access order" are ample enough to enable the applicants to appeal against the decision of Magistrate Abood on 26 September 2005 in relation to the question of costs. Mr Simpkins submitted that the words could embrace a decision in relation to the question of costs because it was ancillary or incidental to the decision to grant or not to grant an access order. Accordingly, it becomes part of and is subsumed within the words "a decision to grant or not to grant an access order". 16 In order to develop this argument, Mr Simpkins referred to provisions in the Access Act empowering the Local Court to make decisions in relation to matters other than access to land to show that a literal meaning of the words "decision to grant or not to grant an access order" in s 31(1) of the Access Act should not be given. 17 Mr Simpkins first referred to s 24 of the Access Act. Section 24 empowers the Local Court to vary or revoke an access order that has been granted on the making of an application by the applicant for the order by any other person affected by the order. Mr Simpkins submitted that it would be a surprising result if the words "decision to grant or not to grant an access order" in s 31(1) of the Access Act could embrace the original decision to grant or not grant an access order but would not include a subsequent decision to vary or revoke that access order. If s 31 were to be construed literally then the decision to vary or revoke an access order under s 24 would not be a decision to grant or refuse an access order and accordingly no appeal would lie. Mr Simpkins said that could not have been the legislative intention. 18 Secondly, Mr Simpkins referred to s 26 of the Access Act. That section empowers the Local Court to make an order for compensation to the owner of the land to which access is granted for loss, damage or injury, including damage to personal property, financial loss and personal injury arising from the access. Again, Mr Simpkins submitted that a literal construction of s 31 would exclude any decision of the Local Court to make an order for compensation from the right of appeal under s 31. 19 Thirdly, Mr Simpkins referred to s 27 of the Access Act. That section empowers the Local Court to make an order as to costs of an application for an access order. Again, if s 31 is construed literally then there could be no appeal from a decision to order or not order costs of an application for an access order under s 27. 20 Mr Simpkins submitted that a purposive construction of each of these additional powers of the Local Court to make decisions would suggest that there ought to be a right of appeal against each of these decisions. That could be done by regarding an appeal against any of those decisions as being relevantly against a decision to grant or not grant access because those former decisions could be said to be ancillary or incidental to the decision to grant or not grant access. 21 Mr Simpkins also sought to support his construction of s 31(1) by reference to the Second Reading speech and to the Law Reform Commission Report No 71. Those extraneous materials discuss the existence of a right of appeal to the Land and Environment Court against decisions of the Local Court. However, none of the extracts referred to from either the Second Reading speech or the Law Reform Commission Report No 71 expressly state that a decision to grant or not grant an access order under s 31(1) is ample enough to include decisions made under the other provisions referred to by Mr Simpkins. Equally of course, as is often the way, the Second Reading speech and Law Reform Commission Report No 71 do not say to the contrary either. The language is reasonably neutral. 22 Mr Simpkins made an alternative submission if his primary submission did not find favour with the Court. The alternative submission was that if s 31(1) was not ample enough to include a decision in relation to the question of costs then the applicants should be given leave to amend their Class 3 application to identify the decision appealed against as including that of Magistrate Abood of 24 May 2005. The problem with that alternative submission is that the time for lodging an appeal against that decision has expired. The decision was made on 24 May 2005 and the time for appeal under s 31(2) is within 30 days after that decision. There is no power in the Access Act or otherwise for the Court to enlarge the time period within which to appeal. On this basis, this alternative submission can be rejected. The respondent's submissions 23 Mr Craig QC appeared for the respondent on the appeal. Mr Craig submitted that the right of appeal is a creature of statute, not common law. The relevant statute, the Access Act, only gives a party to proceedings before a Local Court seeking an access order a right of appeal to the Land and Environment Court under s 31(1). That section limits the decision against which an appeal can be lodged to "a decision to grant or not to grant an access order." On a proper construction of that section, those words exclude a decision in relation to the costs of an application for an access order. Mr Craig gave four reasons. 24 First, Mr Craig submitted that the words in s 31 are clear in their own terms. There is no ambiguity. On their own terms, they are not ample enough to include a decision in relation to costs under s 27 of the Access Act. 25 Secondly, Mr Craig submitted that the words also take their colour and context from the other types of decisions that can be made by the Local Court under the Access Act. Mr Craig submitted that the very existence of the powers to make decisions in s 24 and s 26 referred to by Mr Simpkins, supports a construction of s 31(1) as excluding those decisions from the ambit of s 31(1). 26 The legislature in drafting the Access Act has given the Court express power under s 11 to make an access order. The legislature has set out in subsequent statutory provisions the types of work, the matters to be considered, the conditions of access orders and the form of access orders. These all govern the decision to make an access order under s 11. The fact that the legislature then chose separately to give power to make decisions to vary or revoke an access order or to make an order for compensation where an access order has been granted or to make an order for costs of the application, reveals that the legislature did not intend those other decisions to be a part and parcel or, to use the words of Mr Simpkins, ancillary or incidental to the decision to grant the access order. 27 Furthermore, the fact that the legislature chose not to use words which invoked those other decisions in s 24 and s 26 when drafting the words in s 31(1) is evidence that the legislature did not intend those decisions to fall within the words in s 31(1). 28 Thirdly, Mr Craig submitted that the when the Access Act was enacted in 2000, it was made in the context of the existing Local Courts Act 1982 (NSW). Division 3 of Part 7 of the Local Courts Act 1982 deals with appeals from Local Courts. In s 73, appeals are given as of right in respect of judgments or orders of a Court sitting in its General Division to the Supreme Court, but only on the basis of there being an error in point of law. Other appeals require leave. Section 74 of the Local Courts Act allows a party who is dissatisfied with one of the three judgments or orders of a Court sitting in its General Division set out in that subsection to appeal to the Supreme Court, but only by leave of the Supreme Court. The three categories of judgments or orders are an interlocutory judgment or order, a judgment or order made with the consent of the parties, and, importantly for Mr Craig's submission, an order as to costs. 29 Mr Craig's submission is that a clear distinction has been drawn between a substantive judgment or order in the proceedings and an order as to costs in those proceedings. Mr Craig submits that the legislature when allowing for an additional right of appeal, this time to this Court rather than to the Supreme Court, from the Local Court when it promulgated s 31(1) of the Access Act, must be taken to have been aware of that distinction between the substantive order and an order as to costs. The fact that the legislature chose not to include expressly a right of appeal against an order as to costs in s 31(1) is, according to Mr Craig, an indication that the words in s 31(1), namely "a decision to grant or not to grant an access order", are not to be taken as including an order as to costs. 30 Fourthly, Mr Craig referred to the policy that was stated in the Second Reading speech for the Access Act. Mr Craig submitted that a policy decision was made to vest the Local Court with power to make the various orders under the Access Act because matters could be dealt with in that forum expeditiously and with the least cost. 31 Insofar as there was a need for certain matters to be dealt with by another court, that was expressly provided for in the Access Act. Accordingly, provision is made for the Local Court to transfer the whole or any part of proceedings for compensation from the Local Court to the Land and Environment Court if the amount of compensation or damages involved is likely to exceed the amount of the Local Court's jurisdiction: see s 29(1) of the Access Act. Furthermore, there is the power for the Local Court to refer a question of law that arises in proceedings under the Access Act to the Land and Environment Court: see s 31(1) of the Access Act. 32 However, by and large, the legislative policy is that the jurisdiction in which the Access Act is to be administered is the Local Court. 33 In this context, Mr Craig submitted, it accords with this legislative policy for s 31(1) to be construed as limiting the decisions against which an appeal can be brought to only the decision to grant or not to grant an access order and not to the other decisions that may be made under other sections of the Access Act, including a decision in relation to costs under s 27. Competency of the appeal

34 The issue of the competency of the appeal is a threshold issue. It should be determined now. If the appeal is incompetent there is no warrant for embarking upon a hearing and determination of the substantive grounds of appeal sought to be raised by the applicants. 35 I find that the appeal is incompetent, essentially for the reasons given by Mr Craig. 36 The decision against which an appeal is purportedly brought by the applicants is the decision of Magistrate Abood of 26 September 2005. It is quite clear that that decision only determines the question of costs. It cannot properly be characterised as falling within the description "a decision to grant or not to grant an access order". The only decision that could have answered that description was the decision of Magistrate Abood on 24 May 2005 to make the orders by consent of the parties to grant Mrs Fordyce access to Mr and Mrs Fordham's land to do the work specified in the orders. 37 The applicants have not, as a matter of fact, appealed against that decision nor can they now so appeal that decision because the 30 day period specified in s 31(2) expired in late June 2005. 38 The decision in relation to costs cannot be characterised as ancillary or incidental to the decision to grant or not to grant an access order. The decision is made under a separate power, namely s 27 of the Access Act. The decision to grant or not grant an access order is made under s 11 of the Access Act. The two powers are not connected. 39 It is true that when the Local Court comes to exercise the power under s 27 it may have regard to any decision that might have been made under s 11 to grant or not to grant an access order. However, it is quite clear that an order for costs under s 27 could be made notwithstanding that there has been no order made under s 11. 40 Furthermore, the matters to be considered under s 27 include matters that are extraneous to any decision to grant or not to grant an access order. For example, under s 27(2)(b) of the Access Act, the Local Court may take into consideration whether the refusal of one party to consent to access was unreasonable in the circumstances. This may result in an inquiry into the circumstances leading up to the litigation. 41 I also do not find support for the applicant's construction in the power of the Local Court to make other decisions under other provisions of the Access Act. 42 For example, it may be that the Local Court makes a decision to vary or revoke an access order under s 24. Whether that decision to vary or revoke an access order can be said to fall within the words "the decision to grant or not to grant an access order" under s 31(1) does not really assist in determining whether a decision in relation to costs under s 27 is a decision to grant or not to grant an access order under s 31(1). Clearly in the case of s 24 the decision does directly affect the earlier decision to grant an access order - it varies it or revokes it. An order for costs has no effect on the decision to grant or not to grant an access order. 43 In relation to an order for compensation under s 26, it is clear from the language of the section that a condition precedent to both the making of an application for an order for compensation and the actual making of an order for compensation is the grant of an access order under s 11. Unless and until such an access order is granted, there can be neither an application for an order for compensation, nor an order for compensation under s 26. Accordingly, an order for compensation under s 26 cannot be said to be ancillary or incidental to an access order; it is a subsequent decision which is analytically separate from the grant of an access order. 44 As Mr Craig submitted, if these legislative provisions are to be of any assistance, what they do show is that the legislature, when it chose to use the words "decision to grant or not to grant an access order" in s 31(1), narrowed the category of decisions to only pick up decisions under s 11 rather than decisions under other provisions. (I leave for another day the question of whether an order under s 24 could be seen to fall within the words under s 31(1). That is because, in one sense, one could view a decision to vary or revoke an access order that has already been granted as entailing a decision to re-grant an access order or in effect to refuse an access order). The point is that, knowing of the other provisions in the Access Act, the legislature chose not to pick up any of the language in the other provisions when it drafted the words "decision to grant or not to grant an access order". 45 For these reasons, the appeal is incompetent and should be dismissed. Costs

46 In relation to the costs of the appeal, Mr Craig submits that an order for indemnity costs should be made. I do not consider that this is an appropriate case for such an order to be made, rather it is a case where the usual order as to costs should be made. The respondents have been successful in defending the appeal on the question of the competence of the appeal. Nevertheless there is nothing in the affidavit of Mr Fordyce of 28 February 2006 which would justify departing from the usual order as to costs and making instead an order for indemnity costs. Orders 47 The orders of the Court are:

2. The applicants are to pay the respondent's costs as agreed or assessed. **********

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