Stutchbury v Pittwater Council

Land and Environment Court (NSW)|1999-07-29|Before: Sheahan J

The applicant asserts that that biocycle treatment system was " lawfully installed with council approval in 1988 ", but Pittwater Council did not exist at that time and is not in a position to admit the approval. No evidence of such an approval is yet available to the Court but I have accepted counsel's assurance that there was one. In any event, at the time of that 1988 installation, " trunk sewerage " was unavailable in or near Hudson Parade. However, the sewerage system which is now available in that area belongs to Sydney Water Corporation Limited (" Sydney Water ") which is, and at all relevant times has been, a statutory State owned corporation under s 3 of the State Owned Corporations Act 1989.

No.75 is lot 3 in DP 557877, and it enjoys access to Hudson Parade via a right of way over lot 4. The distance between the nearest boundary of the subject land, and the sewer at its closest point, is approximately 20 metres. The distance between the dwelling on the land, and the sewer at its closest point is about 27 metres.

Section 124 occurs in Pt 2 Div 1 of Ch 7 of the LG Act.

Chapter 7 is entitled " What are the regulatory functions of councils ?", and the introduction to it states as follows: The major regulatory functions of councils are found in this Chapter. It lists the activities that are regulated and it sets out the means of their regulation. A council, in relation to a range of activities within its area, exercises regulatory functions of 2 main kinds. First - various activities can only be carried out if the council gives its approval (for example, the operation of a caravan park). Some of these approvals may also be granted as part of the development consent process under Part 4 of the Environmental Planning and Assessment Act 1979. Second - a council can order a person to do, or to stop doing, something (for example, a council can order a person to keep fewer animals on specified premises). Failure to obtain or to comply with an approval and failure to comply with an order are made offences under sections 626, 627 and 628. A council is not given power to regulate activities by other means. For example, the Chapter does not confer power to require a person to hold a periodic licence. In exercising its regulatory functions, the council must observe any relevant statutory criteria and any other criteria contained in a local policy it may have adopted after public consultation.

The relevant divisions within Pt 2 are referred to in the explanatory memorandum to the bill as presented, as follows: Division 1 (clauses 123-127) lists the things for which council orders may be given and specifies the circumstances in which and the persons to whom orders may be given. These provisions replace the power of a council to 'control and regulate' numerous activities under the 1919 Act.

Division 3 (clauses 135-155) requires a council to give reasons for giving an order (clause 135). The Division stipulates the things an order may require, the ways in which an order may be given, the time at which an order takes effect and the modification and revocation of orders. The Minister may revoke or modify an order given by a council.

The order making process is set out in the various sections following s 124.

Section 127 sits in Ch 7 Part 2 Div 1 of the LG Act and deals with the making of regulations for the purposes of that division. It provides that " The regulations may prescribe acts or circumstances that are taken to be included in or excluded from any of the acts or circumstances specified in Column 1 or 2 of the Table to section 124 ".

Section 132 requires the Council to give notice of intention to make an order. Section 133 envisages that in response to the notice a person may make representations concerning a proposed order and may do so through a legal representative or agent. Section 134 requires the Council or one of its committees, or a specified Councillor or employee " to hear and to consider any representations made under section 133 ". Section 135 sets out the procedure to be followed once those representations have been heard or considered.

Section 136 requires a Council to give the person to whom an order is directed the reasons for that order. Those reasons may be given in the order or in a separate instrument, but they must be given when the order is given (except in a case of urgency when they may be given the next working day). There is no dispute between the parties that the Council is obliged to give a person to whom an order under s 124 is directed the reasons for the order, generally at the time it is given.

Other relevant provisions of the LG Act include sections 673ff which provide for a system of judicial review by this Court.

Section 748 contains a general regulation making power. The most relevant provisions of s 748 are in the following subsections: (1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) In particular, the regulations may make provision for or with respect to a matter specified in schedule 6. … (5) The regulations may incorporate by reference, wholly or in part and with or without modification, any standards, rules, codes, specifications or methods, as in force at a particular time or as in force from time to time, prescribed or published by any authority or body, whether or not it is a New South Wales authority or body.

Schedule 6 includes in the list of matters in respect of which regulations may be made " Item 7 - Water, sewerage & drainage works ". Included in the list of examples in Item 7 are: " Water, sewerage and drainage systems " and " The discharge and treatment of sewage ".

The Local Government (Water, Sewerage and Drainage) Regulation 1993 (" the Regulation ") commenced operation on 1 July 1993.

Clause 5(2) of the Regulation provides that the provisions of the Regulation which relate to sewage " apply to an area or part of an area in respect of which the Council provides or has taken steps to provide a sewerage system " (emphasis added).

Clause 6(2) provides that an order under s 124 requiring sewerage work to be carried out " is not complied with unless the work is carried out in accordance with the Plumbing and Drainage Code of Practice (so far as that Code is applicable to that work)."

Part 3 of the Regulation deals with " Sewerage and Drainage ". Generally speaking, that part of the Regulation assumes that the Council operates sewerage systems, and it is well known that many Councils do so.

In Div 3 of that part of the Regulation, cl 40 now provides as follows: (1) Without limiting order No 24 in the Table to section 124 of the Act, the following acts are taken to be included in Column 1 of that Table as acts that may be required by that order: (a) the construction of all necessary pipes, and the installation of all necessary fixtures and fittings; (b) the construction or installation of a separate service pipe to the premises, or to each of the premises concerned. (2) The circumstances specified in Column 2 of the Table to section 124 of the Act in relation to Order No 24 of the Table are taken to include the following: The sewerage system of a public authority or a State owned corporation is available and the premises can be connected to the system. This applies to all areas in which a public authority or a State owned corporation maintains a sewerage system and so applies despite clause 5 of the Local Government (Water, Sewerage and Drainage) Regulation 1993.

The words " or a State owned corporation " were inserted in cl 40(2) by an amending regulation, gazetted 14 October 1994, the object of which was stated to be " to make it clear that a council operating within the area of operations of a State owned corporation (such as the Hunter Water Corporation) can require premises to be connected to the sewers of the corporation. This Regulation is made under the Local Government Act 1993, including section 748 (the general regulation making power) and section 127".

In the dictionary to the Regulation the following relevant definitions appear:

'Sewer main' means a sewer main forming part of the council's sewerage system, and …

'Sewerage service' , in relation to premises: (a) means the pipes, fittings and fixtures used or intended to be used in connection with the premises for the purpose of conveying sewage or permitted discharges from the premises to the council's sewerage system; and (b) if a septic tank is installed on the premises and connects or is intended to connect (directly or indirectly) with the councils' sewerage system - includes an effluent tank or a sullage tank, but does not include a septic tank.

'Sewerage system' , in relation to the council, includes all sewers, appliances, plant, machinery and other sewerage works of the council.

Prior to the commencement of the LG Act and the Regulation, Ordinance No. 46 was the relevant statutory instrument, and the savings and transitional provisions of the Regulation protect actions taken pursuant to the provisions of Ordinance 46.

The relevant provisions of Ordinance 46, as proclaimed on 25 June 1948 and amended thereafter, included the following: 1.(a) This Ordinance shall apply to Municipalities and Shires in respect of those parts thereof in which the Council controls or provides or is taking steps to provide a public sewerage or drainage system. (b) This Ordinance shall apply to all Municipalities and Shires in respect of those parts thereof in which any Council controls or provides or is taking steps to provide a public sewerage or drainage system. (c) For the purposes of this Ordinance 'Council' shall mean the Council so controlling or providing or taking steps to provide a public sewerage or drainage system, and shall include County Council.

'Sewerage Service' - (a) means the pipes, fittings and fixtures used or intended to be used in connection with any premises for the purpose of conveying sewage or permitted discharges from the premises to the Council's sewer; and (b) if a septic tank is installed on the premises and communicates, or is intended to communicate, directly or indirectly with the Council's sewer, includes an effluent tank or a sullage tank, but does not include a septic tank.

'Sewerage System' includes all sewers, appliances, plant, machinery and any other sewerage works of the Council.

(1) The Council may serve on the owner of any premises subject to sewerage rates a notice requiring the owner to cause the premises to be connected with the Council's sewers. (2) An owner on whom a notice is served under this clause shall, in accordance with this Ordinance, construct on the premises all necessary pipes, sewers and house drains and install on the premises all necessary apparatus, including fixtures and fittings, up to the point of connection with the Council's sewer mains and shall in accordance with the notice cause the premises to be connected to those mains.

The preliminary issues for determination are expressed as follows ( Exhibit B ): 1. Did the Respondent have power to issue an order under s.124 of the Local Government Act 1993 to the Applicant to require the Applicant to connect his premises to a sewer not owned or operated by the Respondent? 2. Did the Respondent give reasons for the order in accordance with s.136 of the Act? 3. If the answer to either para 1 or 2 above is ' no ', is the order which is the subject of this appeal invalid? 4. If so, should the appeal be dismissed?

The major issues involved in the determination of these preliminary questions, as expressed by counsel for the applicant, are: 1. Is the Regulation extending the application of the table in s 124 to sewerage systems which are not within council's control valid? 2. What is the extent of the obligation to give reasons pursuant to s 136? Is it sufficient merely to restate the statutory power without elaborating on any plausible justification for the making of an order?

The applicant contends that Council's order is invalid because Council has no power to compel residents to connect to a sewerage system which Council does not manage or operate itself. The applicant says that, on its face, the power given by s 124 to compel Mr Stutchbury to connect his premises to a sewer may be exercised only where the premises are within 75 metres of a sewer system which is operated or managed by a Council .

The applicant contends that the 1993 legislative regime flowed from a policy decision to rationalise powers and establish a framework providing procedural fairness and a system of appeals. That regime was not designed to expand the framework in which Ordinance 46 had operated for 45 years, but rather to collect and rationalise the relevant requirements. The balance of power between various authorities was carefully examined in the detailed preparation of the legislation and its consideration by Parliament. Section 124 includes a careful prescription of the preconditions required for the making of an order.

The general power in s 748(1) requires that regulations made under the LG Act be " not inconsistent with " that Act. However, s 127 specifically enables the making of regulations to " prescribe acts or circumstances that are taken to be included in or excluded from any of the acts or circumstances " in columns 1 or 2 of the table to s 124. The applicant contends that cl 40(2) is a purported but invalid exercise of the regulation-making power to extend the reach of Council's powers to Sydney Water's system.

The applicant contends that the regulation making power will not support attempts to widen the purposes of an Act, to add new and different means of carrying out such purposes, or to depart from or vary the plan which the legislature adopted to attain its ends. The applicant's fundamental submissions are that: (i) the executive has sought to amend the LG Act by means of a Regulation; (ii) in doing so, the executive has exceeded the power provided in s 127; (iii) the power to amend a law by regulation must be given expressly or by necessary implication; (iv) a regulation made under s 127 must not be inconsistent with the LG Act (s 748).

In Shanahan v Scott (1956-57) 96 CLR 245 the High Court reviewed a regulation " made in purported pursuance of a power conferred upon the Governor in Council " by a Victorian primary products marketing statute. The High Court by a majority held that the discretionary power the regulation purported to give went beyond the power to regulate the particular operations enumerated in the relevant section and that the regulation was not within the scope and general operation of the legislation. The relevant regulation, therefore, fell neither within the particular, nor the general, regulation making power and was ultra vires.

The majority judgment said (at 250) after reviewing the relevant authorities: The result is to show that such a power does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provisions. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends.

The LG Act in this case does not include an express requirement of consistency, but it does require that there must not be an inconsistency.

In Carbines v Powell (1925) 36 CLR 88 Isaacs J said (at 91-2): …the Governor-General's regulations are to be confined to the same field of operations as that marked out by the Act itself. It cannot be supposed that Parliament gave permission to the Executive to enlarge legislatively that field at discretion… The question for the Court is not whether that power should, but whether it does, exist.

His Honour went on to quote from one of his earlier judgments which had in turn been quoted with approval by Barton J. See Australian Boot Trade Employees' Federation v Whybrow & Co (1910) 11 CLR 311 at 338 and Stemp v Australian Glass Manufacturers Co (1917) 23 CLR 226 at 233, 234, both quoted in Carbines (at 92). The relevant quote from Australian Boot Trade is as follows:

' It is not open to the grantee of the power actually bestowed to add to its efficacy, as it is called, by some further means outside the limits of the power conferred, for the purpose of more effectively coping with the evils intended to be met. … The authority must be taken as it is created, taken to the full, but not exceeded. In other words, in the absence of express statement to the contrary, you may complement, but you may not supplement, a granted power'.

As the applicant's written submissions in this case put it:

… if the regulation making power enables a regulation to extend the Act under which it is made, or even to contradict it, then any inconsistency between the regulation and the Act has been authorised by the Act itself and the regulation will be valid… Section 127… does not expressly enable regulations to be made which are inconsistent with the Act, and it must be read conformably with the express exclusion of such regulations by s 748(1), which is the source of regulation making power.

The applicant submits that the powers to issue orders are clearly and carefully circumscribed in s 124 and the question is whether the executive can deem an act or circumstance to be within the Council's regulatory power. The applicant submits that Parliament, having introduced careful distinctions within the table of orders under s 124, would hardly have reserved to the executive the power to set the scheme entirely aside by way of a regulation.

In Hunter Douglas Australia Pty Ltd v Perma Blinds (1969-70) 122 CLR 49 a " deeming " provision was reviewed by the High Court. Windeyer J referred to the element of statutory fiction involved in such provisions and noted (at 65) that the use of the word " deem ": …in statutory definitions to extend the denotation of the defined term to things it would not in ordinary parlance denote … is often a convenient device for reducing the verbiage of an enactment. But that the word can be used in that way and for that purpose does not mean that whenever it is used it has that effect… The words 'deem' and 'deemed' when used in a statute thus simply state the effect or meaning which some matter or thing has - the way in which it is to be adjudged. This need not import artificiality or fiction. It may be simply the statement of an indisputable conclusion, as if for example one were to say that on attaining the age of twenty-one years a man is deemed to be of full age and no longer an infant.

There is no presumption, still less any rule, that wherever the word 'deemed' appears in a statute it demonstrates a 'fiction' or some abnormality of terminology. Sometimes it does. Often it does not. Much depends upon the context in which the word appears …

The applicant submits that s 127 is not so much a deeming clause as a power for the legislature to exemplify the operation of s 124 so as to give greater clarity to its application in particular circumstances. Of necessity, the wide variety of circumstances in which orders may be given by councils require that the power to do so be expressed with generality. There is an obvious utility in stating what conduct falls within or outside s 124 or in what circumstances it is likely to be applied.

For these reasons the applicant submits that cl 40(2) by purporting to extend Council's power to non-council sewers is beyond power.

As noted in par 17 above the words of s 127 clearly envisage that regulations " may prescribe acts or circumstances " which are to be taken as " included in or excluded from " the " to do what " and " in what circumstances " columns of s 124.

The Council submits that cl 40(2) of the regulation, which came into force quite soon after the LG Act commenced, is expressly authorised by those terms of s 127, and also by the terms of s 748(2) and sch 6 item 7 of the LG Act, which provide that the regulations may make provision for or with respect to, inter alia, water sewerage and drainage works (for example " connections to water and sewer mains ").

In neither the Council's written submissions, nor its oral argument, was this assertion supported other than by a submission that the addition - or indeed exclusion - by regulation, of a " circumstance " to/from a specific provision of the LG Act does not automatically establish such an inconsistency as would invalidate the regulation.

Most councils in the more populated areas of the State do not have direct control over sewerage facilities. Section 124 item 24 would, in its terms, appear to focus on those areas where Councils have control of such facilities, but Councils in most areas of the State can be genuinely effective in addressing the public health and environmental concerns which are entrusted to them, only if the necessary action be taken to ensure that those major areas where there are no council schemes come within the purview of s 124 item 24.

Mr Robertson, on behalf of the applicant, contends in response that there was obviously a detailed consideration of the terms and policy of the legislation, prior to its enactment and implementation, and the legislative intention must have been to confine item 24 to council operated sewers. In that event the coverage cannot be broadened simply by regulation.

Section 748 requires that a regulation must be " not inconsistent with this Act ". Section 127, clearly on its face, envisages that specific regulations may be required to make s 124 relevantly workable. In large urbanised areas the executive arms of government have seen fit to provide what are customarily seen as " municipal services " by means of what have evolved to be " State owned corporations ", and the making of the Regulation evidences a decision by executive government to bring the services of such corporations within the ambit of s 124.

The public sewerage system near the applicant's land has now been provided by a State owned corporation, but the Council retains its long-standing statutory responsibility to play an active role in matters relevant to " the discharge and treatment of sewage " (see Sch 6 Item 7 of the LG Act and cl 6 of the Regulation).

While the use in Ordinance 46, and now in cl 5(2) of the Regulation, of expressions like " provides or has taken steps to provide ", rather than " ensure that … is provided ", makes the applicant's contentions in this case quite properly arguable, I have concluded that any regulation consistent with the specific terms of s 127 does not infringe the inconsistency test in s 748, and that cl 40(2) of the Regulation is consistent with s 127.

therefore, hold that s 127 empowers the making of the relevant regulation widening the ambit of Order 24, and I answer question 1 in Exhibit B in the affirmative .

The second prong of the applicant's attack deals with the Council's clear statutory obligation, under s 136 of the LG Act, to give reasons for its order.

A property owner is entitled to achieve a clear understanding of what is expected of him and why he should comply with a Council requirement. The regime of the LG Act requires the Council to be " up front " (see s 7(a)) in its dealings with people within its jurisdiction, and the system of accountability (see s 8(1)) includes the obligation to give reasons for its decisions or actions in certain circumstances (see, e.g., s 12A and s 136).

Mr Robertson submits, and I agree, that the requirement that Council provide reasons is eminently appropriate, given that a failure to obey a Council order can result in both civil and criminal consequences. Section 628 makes it an offence to fail to comply with an order, and s 678 provides Council with civil remedies which it may exercise " irrespective of whether the person concerned has been prosecuted for an offence under s 628 " (s 678(9)). Reasons also help a person make decisions such as whether to make representations after notice is received, or to appeal an order or seek its judicial review (see generally sections 130-136).

In this case the reason given for the order was that " the premises are situated within 75 metres of a sewer provided by Sydney Water ".

Counsel for both parties have drawn attention to the judgment of the Chief Judge in Shannon v Lithgow City Council (1995) 88 LGERA 253 which concerned an order pursuant to s 124 item 18, and compliance with s 136. The applicant contended that the reason given was inadequate because it failed to set out the basis upon which the " appropriate number " of dogs, specified in both the order and the relevant Council policy decision, was arrived at.

The Chief Judge was satisfied that the order complied with s 136, and that the only reason that need be given was that there were on the premises more than the number stipulated in the policy. She said (at 258):

It does not derogate from the sufficiency of the reason given that the specification of four dogs as an appropriate number may be arbitrary. In carrying out their functions, councils regularly and properly set standards with which activities ought to comply. If the standard applied here by the Council is unreasonable, there is a remedy available to Mrs Shannon, which is to challenge the order on appeal. No evidence was led, however, by Mrs Shannon to challenge the appropriateness of the number four. Her challenge was confined to the inadequacy of the reason for the giving of the order. As I have said, the challenge on that basis fails.

Mr Parry contends that the Council employed the specific standard (however " arbitrary ") which appears in s 124, and with which it expects people such as the applicant to comply, namely that, if a property is within 75 metres of a sewer, the sewage generated at that property must be disposed of to the sewer. He conceded that the applicant may challenge the reasonableness or appropriateness of such a standard in his merit appeal under s 180 of the LG Act, and the Court may consider whether the order is warranted. However, " merit considerations do not evidence non-compliance within s 136 " (par 2.2 of his written submissions).

Mr Parry submits that, by analogy, as the distances involved here are much less than 75 metres, the clash over dog numbers in Shannon makes the Chief Judge's reasoning appropriate for the Court to apply in the circumstances of this case. He urges the Court to go no further.

Mr Robertson observed that in this matter " fewer reasons " were given than in Shannon , but he contends that the relevant authorities, upon which he relies in this case, and which define, for his submissions, appropriate " reasons ", were not cited to the Chief Judge in Shannon .

It is, therefore, necessary and appropriate that the Court review the authorities upon which Mr Robertson relies in order to consider what types of " reasons " are required by s 136.

Mr Robertson submits that there are criteria for making decisions, grounds for making them, and reasons for making them. His submission is that proximity to sewer (eg within 75 metres) is a " criterion ", but what the section requires is " reasons ", which is a broader concept even than " grounds ". He attacks the reason given in this case on the basis that it merely repeats the criterion for the decision, but not the grounds, let alone " reasons ", which the LG Act clearly requires.

In Algoni Pty Ltd & Ors v Secretary, Department of Industrial Relations (1985) 3 NSWLR 515 the New South Wales Court of Appeal dealt with a statutory duty to state " grounds " for a decision adverse to a party. The Court held that the duty so imposed may, depending on the context, sometimes require a decision maker to state reasons and may also, depending again on the context, connote an obligation narrower than a duty to state reasons, ie, a duty to state only the precise conclusion or conclusions upon which the decision is based.

Kirby P, with whom Hope and Glass JJA relevantly agreed, held (at 523ff) that the duty must be construed from " the language of the provision, its meaning, context and apparent purpose ". His Honour commented " to narrow a construction of the provision could frustrate its contribution to an important and beneficial legal development which, in this case, has the sanction of the Parliament ". He went on to survey the different interpretations that he considered would be appropriate of the word " grounds " and the word " reasons ", and the relevant authorities from various sources in Australia and the United States, and said (at 525-6): These and other cases lead to the following conclusions. Where a statutory duty is imposed to state 'grounds' for a decision adverse to a party, that duty may, depending on the context, sometimes require the decision maker to state the reasons for his decision. If he has earlier done so, a subsequent statement of 'grounds' , as required by statute, may be tested against the earlier statement of reasons, to see if it is a statement of the true grounds. However, the word 'grounds' may, also depending on the context, connote an obligation narrower than a duty to state 'reasons' . Indeed, the duty to state the 'grounds' for a decision will normally involve a narrower obligation than the duty to provide reasons. The word 'grounds' normally connotes something more informal and more abbreviated. Thus, the 'grounds' of appeal, as required by the Supreme Court Rules 1970, involve a statement, in short point form, of the essential issues to be argued on the appeal. The reasoning and argument need not, indeed should not, be stated. The 'grounds' must be identified with sufficient clarity and precision to fulfil their purpose. This is to alert the opponent so that he can prepare his case, to inform the court of the matters in contest and to facilitate the joining of issue.

In some contexts the word 'grounds' can have the same meaning, or substantially the same meaning, as 'reasons' . In other contexts 'grounds' are the precise conclusion or conclusions upon which a decision is based, and the 'reasons' comprise the arguments and material which support and justify those conclusions. In the context of the present case, the 'grounds' referred to in the paragraph do not in my opinion include reasons, and are limited to the matters which I secondly described.

Mr Robertson then referred the Court to a series of British cases .

In Givaudan & Co Ltd v Minister of Housing & Local Government & Anor [1966] 3 All ER 696 Megaw J held that the Minister's letter referring to the conclusions of an inspector who held a local inquiry " was so obscure and would leave an informed reader in such a substantial doubt as to the Minister's reasons and as to what matters he did or did not take into account that the letter did not give the 'good and sufficient reasons' which the relevant rule required ". The Minister's decision dismissing the appeal made to him was, therefore, quashed.

In the Scottish House of Lords case Wordie Property Co Ltd v Secretary of State for Scotland (1983) 1984 Scots Law Times Reports 345, Lord Emslie, with whom Lords Cameron and Grieve relevantly agreed, said (at 348-9): … in order to comply with the statutory duty imposed upon him the Secretary of State must give proper and adequate reasons for his decision which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it. … I have only to add that in appeals such as these reasons which fail to pass the tests which I have just discussed will demonstrate a failure to comply with statutory requirements which cannot have been other than prejudicial to the appellant. … The letter in short leaves the informed reader in real and substantial doubt as to what the reasons for the Secretary of State's decision were and as to what he did and did not take into account.

In R v Secretary of State for the Home Department, Ex parte Dannenburg [1985] 1 QB 766 it was held that " since the deportation order did not contain information relating to the grounds on which it was made and the justices did not give reasons for the recommendation on which it was based, the deportation order and recommendation did not comply with [the relevant articles] of a Council Directive … and, therefore, the order was invalid and would be quashed ".

The Court of Appeal said (per Dunn LJ at 775): The primary purpose of the 'opinion' appears to be to inform the administrative authority of the view of the competent authority. Taken on its own, the word 'opinion' could mean no more than 'conclusion,' but article 6 provides that the person concerned shall be informed by the administrative authority of the grounds of public policy upon which the decision to expel is based, and if no reasons are given by the competent authority the administrative authority will not know the grounds on which the opinion is given and will be obliged to consider its own grounds without reference to the views of the competent authority. … If no reasons are given, it will be impossible for the administrative authority to know whether the competent authority has taken the proper factors into consideration in reaching its opinion.

In R v Mental Health Review Tribunal, ex parte Clatworthy [1984] 3 All ER 699, Mann J held that the reasons given by the Tribunal for refusing to direct the discharge of the applicant from detention in hospital were wholly inadequate, in that they did not tell the applicant why his detailed submissions had not been accepted, and the Tribunal's decision was, therefore, quashed. His Honour said (at 703): I do not regard the reasons given by this tribunal as satisfactory, whether one looks at the reasons alone or at the reasons as sought to be justified. The reasons alone are a bare traverse of a circumstance in which discharge could be contemplated. The grounds for those reasons do not enable one to see why the contentions of Dr Donovan were not accepted or why the contentions of Professor Russell Davis were not accepted…. The evidence as I read it is that there is no other feature and sexual deviancy is to be discounted under the Act.

In R v Westminster City Council, Ex parte Ermakov [1996] 2 All ER 302 the English Court of Appeal held that, if no reasons or wholly deficient reasons were given, the applicant for judicial review was prima facie entitled to have the relevant decision quashed as unlawful, whether or not he could show that he had suffered any prejudice thereby. The relevant section required the giving of reasons at the same time as the communication of the decision. Thorpe and Nourse LJJ agreed with Hutchison LJ, Nourse LJ saying (at 317-8): I am in no doubt that Parliament intended that in some circumstances a local housing authority's failure properly to notify an applicant of their reasons should invalidate their decision that he had become homeless intentionally. …. More particularly, the reason stated, having been based apparently on the applicant's credibility, a matter essentially for the council, was one which was inherently likely to discourage him from challenging the decision by way of proceedings for judicial review. The true reason, being one which gave rise to a mixed question of fact and law, would not have had that effect or, at all events, would not have had it to the same extent.

Mr Robertson relied also on some Federal Court of Australia cases .

In Ansett Transport Industries (Operations) Pty Ltd & Anor v Wraith & Ors (1983) 48 ALR 500, Woodward J, in dealing with the approval of discount airfares, said (at 507) that the Independent Air Fares Committee ("IAFC") did not argue that the telexes sent by it: to Ansett constituted an adequate compliance with the requirements of s 13(1). In this they were clearly correct. Although those telexes, when read together, adequately stated the formal findings of the IAFC, they do not appear to have stated all the findings on material questions of fact, or to have identified adequately the material on which those findings were based, and they contained little if anything which could fairly be described as reasons for the decision. … s 13(1) of the Judicial Review Act requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say, in effect: 'Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging'. This requires that the decision-maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions. He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation. The appropriate length of the statement covering such matters will depend upon considerations such as the nature and importance of the decision, its complexity and the time available to formulate the statement.

His Honour observed (at 507-8) that the Administrative Decisions (Judicial Review) Act 1997 (" ADJR Act ") clearly intends " that persons aggrieved by administrative decisions which adversely affect them should have full opportunity to show, if they can, that such decisions, have been improperly reached. They can only do this if they know how the decisions were in fact reached ".

In ARM Constructions Pty Ltd & Ors v Commissioner of Taxation (1986) 10 FCR 197, Burchett J held that the Commissioner had failed to discharge his obligations under s 13 of the ADJR Act " to make intelligible in his statement of reasons the true basis of his decisions ". His Honour adopted the comments of Woodward J in Wraith and said (at 203-4):

Section 13 is a crucial provision designed to ensure that the basis upon which a decision is made is able to be seen, so that its legality can be determined. It should not be viewed by any decision-maker as a threat to be evaded by a camouflage of obscurity. All it requires to be set out is a statement of the matters the administrator must have considered in making the decision in the first place - what he found the facts to be, what material he considered in arriving at those findings, and the reasons for his ultimate decision. It would be wrong for courts to construe reasons in any overly critical spirit, forgetful that they are the reasons of an administrator, not of the draftsman of an Act. But it would be as bad to betray the aims of the …. [ADJR Act], by ignoring what has been required by the Parliament to be disclosed in the interests of just and lawful (and not merely unassailable) administration. In the present cases, the statement of reasons has been unnecessarily obfuscated by a restatement of the decisions themselves under the heading which purports to refer to the findings on material questions of fact….the obligation under s 13 … demands the furnishing of reasons which make intelligible the true basis of the decision.

In North Coast Environment Council Inc v Minister for Resources (1994) 36 ALD 30 ("NCEC") Sackville J referred to Burns v Australian National University (1982) 40 ALR 707, where Ellicott J had adopted as the rationale underlying s 13 the explanation given by the Administrative Council in an explanatory memorandum which he paraphrased as: (a) to overcome the real grievance persons experience when they are not told why something affecting them has been done; (b) to enable persons affected by a decision to see what was taken into account and whether an error has been made so that they may determine whether to challenge the decision and what means to adopt for doing so.

Mr Robertson also provided for the Court a number of academic articles , one of which (Thawley, 1996, 3 AJAL 189) made strong references to the Commonwealth Acts Interpretation Act s 25D which notes that " whether the expression reasons grounds or any other expression is used the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based ".

On the basis of all these authorities Mr Robertson submits (see par 11 of his written submissions) that: (i) the mere restatement of the conditions which must be satisfied before the discretionary power to make the order arises is not the provision of reasons for the order [ Wraith ]; and (ii) the reasons given must make intelligible the true basis for the decision to issue the order [ ARM ] so that (iii) the person who is affected by the order is fully informed of the basis for it and the reasons for issuing it, so that (iv) the affected person has sufficient information to decide whether to accept the order or appeal it [ NCEC ].

The meaning of s 136 of the LG Act, read in the light of these authorities, is quite clear. When giving the order the Council must provide reasons which clearly indicate consideration of material issues. Such reasons are crucial to the validity of the order (see Project Blue Sky Inc v ABA (1998) 72 ALJR 841 at 859-861).

In giving its reasons in this case the Council said simply that because Stutchbury's property and the dwelling on it could be reached by a direct line of less than the 75 metres specified in s 124 he must connect to the sewer. The reasons provided, therefore, do no more than state the criterion which enlivens the power.

It must be noted that the Court has no knowledge of what may have passed between the parties, on the question of sewerage arrangements, prior to the giving of the order. The court presumes Mr Stutchbury received a notice under s 132, but does not know if he made any representations to Council (s 133), and/or whether Council applied its mind to the adequacy or otherwise of his current arrangements. However, in the order, he was told no more than simply that, because he is located in a particular place, he must oblige the Council by connecting to the Sydney Water sewer. Council adopted the distance in s 124 and applied it to the applicant without any apparent regard to the existing circumstances of (apparently Council-approved) sewerage disposal which it now acknowledges. No explanation was given as to why that current arrangement is no longer adequate.

I have concluded that the Council has not complied with s 136.

In doing so I acknowledge that my conclusion on the facts in this case may not be compatible with the Chief Judge's decision on the facts in Shannon . It is possible to distinguish Shannon on the basis that the number of dogs stipulated in the order was not - contrary to what the Chief Judge said (par 65 above) - "arbitrary" at all. It had been arrived at through Council's policy making process, whereas in this case the legislation simply specifies the distance, and Council adopted it. No policy basis for it is apparent. However, in any event, I have had the benefit of more comprehensive argument of the question and have come, with the greatest of respect to Her Honour, to a different conclusion as to the appropriate test of the adequacy of reasons.

I am of the view that Mr Stutchbury was entitled to be told why he should connect to the Sydney Water sewer, and whether his current sewerage arrangements, being a material consideration , were taken into account.

The answer to the second question in Exhibit B is, therefore, " no ".

Returning to the four questions in Exhibit B (see par 34 above), the Court having answered question 2 in the negative, the answer to question 3 is " yes ". The above quoted authorities make it clear that deficient reasons, in the case of a statutory provision like s 136, result in invalidity. In all these circumstances, the answer to question 4 is probably also "yes", but that matter was not argued, and the future disposition of the appeal is really now a matter for the parties to consider in the light of this judgement.

For that purpose I grant leave to the parties to approach the Registrar forthwith regarding the currently fixed hearing, which is to commence 2 August 1999.

As is the usual practice, I make no order as to costs.

The exhibits should remain with the Court file.

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.

Land and Environment Court of New South Wales CITATION: Stutchbury v Pittwater Council [1999] NSWLEC 177

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