Robert Noble v Mosman Municipal Council

NCAT Administrative and Equal Opportunity|2019-12-05

Background

Mr Robert Noble filed an application for administrative review of a decision of Mosman Municipal Council (Council) in the Tribunal on 26 April 2019. The decision of Council was dated 29 March 2019. It decided, "not to grant a Heritage Exemption for a new 1.8m high front fence" at the applicant's residential property (the Decision).
Neither the application for administrative review nor the Decision itself refer to the legislation under which the Decision was purportedly made.
Council has asked the Tribunal to dismiss the administrative review application on the ground that the Tribunal does not have administrative review jurisdiction to determine it.
On 7 September 2019 the Tribunal determined that the jurisdiction issue would be determined on the papers. This order was made having considered Mr Noble's request for an oral hearing.
The task of determining the whether the Tribunal has jurisdiction to determine Mr Noble's administrative review application has been referred to me.

Material before the Tribunal

In making my decision I have had regard to the following material provided by the parties: 1. Application for administrative review filed by Mr Noble on 26 April 2019 with annexures. 2. Submission from Mr Noble dated 26 June 2019. 3. Council's notice of legal representation filed 18 June 2019. 4. Council's submissions filed 18 June 2019.

The Facts

By an "Application for Heritage Exemption" made to Council under the Mosman Local Environmental Plan 2012 Clause 5.10 and dated 3 January 2019, Mr Noble sought approval to replace an existing fence with a 1.8m high, lap and cap fence at his property.
On January 2018 a Senior Planning officer from Council emailed Mr Noble as follows: Council's Heritage Advisor has reviewed your application and is not supportive of a 1.8m high fence, so Heritage Exemption has not been granted. Should you wish to pursue this option a Development Application will be necessary. The Heritage Advisor has advised that he is prepared to support a 1.2m high fence (measured from footpath level) with a hedge planted behind. Should you wish to pursue this option, a sketch plan of the works should be submitted.
That afternoon Mr Noble replied, again by email, as follows: Pursuant to Division 3, Section 100 of the Local Government Act 1933 (as amended) I formally request a Review of the Determination/Decision not to grant the necessary Heritage Exemption for the replacement of part of the front fence for our residence at … I look forward to a timely reply in this matter and will delay any reference to NCAT pending this further advice.
In response Council gave Mr Noble the decision he is now seeking to administratively review, dated 29 March 2019. Relevantly, it said: I refer to your application for a review of Council's decision to not grant a Heritage Exemption for a new 1.8m high front fence at 26 Lang Street. Council has undertaken a review and has determined that a Heritage Exemption will not be granted. Council is not satisfied that the proposed development is of a minor nature or that the proposed development would not adversely affect the heritage significance of the heritage conservation area Should you wish to proceed with the proposed development, a Development Application with plans and supporting information will be required.
It is to be noted that Council in the decision did not indicate upon what legislative basis that review was undertaken, but in submissions argued that it did so as a "courtesy" to the applicant. Mr Noble takes issue with this. There is certainly nothing in the decision indicating that the review was undertaken as a matter of courtesy. In any case, it is not necessary for me to decide that issue in order to determine the issue of Tribunal's jurisdiction.

Does the Tribunal have administrative review jurisdiction?

In his submissions Mr Noble did not directly address how he says the Tribunal has jurisdiction to review the decision.
Council asserts that there is no administrative review jurisdiction flowing from either : 1. the Local Government Act 1933 (NSW) (the LGA); or 2. the Mosman Local Environmental Plan 2012 (the MLEP) which was made by Council pursuant to Division 3.4 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPAA)
Section 30 of the CAT Act relevantly provides that: (1) The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator. Note. See section 9 of the Administrative Decisions Review Act 1997. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative review jurisdiction: (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act, the Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of such proceedings. (3) An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction. Note. See section 7 of the Administrative Decisions Review Act 1997. (4) An administrator, in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation. Note. See section 8 of the Administrative Decisions Review Act 1997. … (6) An administrative review application is an application made to the Tribunal for an administrative review decision. Note. Chapter 3 (Process for administrative reviews under this Act) of the Administrative Decisions Review Act 1997 also makes provision for the role of administrators when making administratively reviewable decisions and the role of the Tribunal when conducting an administrative review of such decisions.
Section 9 of Administrative Decisions Review Act 1997 (NSW) (the ADR Act) then provides the circumstances in which the Tribunal has administrative review jurisdiction. It relevantly provides: (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation. … (5) Nothing in this section permits administrative review jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.
"Enabling legislation" is defined in s 4: enabling legislation means legislation (other than this Act or any statutory rules made under this Act) that: (a) provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or (b) otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters.
The first question confronting the Tribunal when seeking to exercise its administrative review jurisdiction is whether there is any "enabling legislation" which provides for the applicant to seek administrative review: see Dubow v Mid-Western Regional Council [2019] NSWCATAP 242.
Mr Noble in submissions has not indicated any applicable legislation. In correspondence with Council he relied on s 100 of the LGA. His original application was made under the MLEP. It is not clear from the Decision itself on what basis it was made.
There are two possibilities: the LGA, or the MLEP. It is not necessary for me to decide which, as neither contains provision which give administrative review jurisdiction to the Tribunal with respect to the Decision.
Section 100 of the LGA, upon which Mr Noble relied when seeking a review by Council, is concerned with seeking reviews by council of applications for approval of activities that require consent under Part 1 of Chapter 7 of the LGA. In the present case Council submits that the construction of fences is not a matter specified to require consent in the Table to s 68 of the LGA and that Part 1 of Chapter 7 does not apply. Once again this is not a matter that I need to determine in order to resolve the jurisdiction issue.
This is so as there is no provision in the LGA conferring administrative review jurisdiction on the Tribunal with respect to applications for approval of activities that require consent. To the contrary, s 176 (in Part 5 of Chapter 7) confers an appeal jurisdiction with respect to approvals on the Land and Environment Court. It relevantly provides: (1) An applicant who is dissatisfied with the determination of a council with respect to the applicant's application for an approval may appeal to the Land and Environment Court.
This is to be contrasted with provisions found elsewhere in the LGA which confer administrative review jurisdiction on the Tribunal, with respect to specific other decision under the LGA. Examples are: 1. Section 303(3) concerning claims to be included in a roll of electors - A person dissatisfied with the decision of the Electoral Commissioner or general manager may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision 1. Section 434B (4)) concerning the expenses of investigations of council- The council may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of whether any part of the expenses so determined are not reasonable expenses.
There is therefore no enabling legislation giving this Tribunal administrative review jurisdiction with respect to applications for approvals under the Chapter 7 of the LGA,
Similarly, there is no provision in the MLEP or the EPPA which provide the Tribunal with administrative review jurisdiction in respect of the decision.
As a result, the Tribunal does not have jurisdiction to hear or determine Mr Noble's application. There is no enabling legislation conferring administrative review jurisdiction with respect to the decision in issue.

Order

The Tribunal orders: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with a hearing in this matter. 2. The application is dismissed for want of jurisdiction.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 December 2019

Local Government Act 1933(NSW)

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Judgment (6 paragraphs)

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Legislation Cited (4)

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