Wu v Fairfield City Council

Should the application be determined without a hearing?

1. Section 50(2) to (4) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) provides: (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
2. In this case both parties have consented to the application being determined on the papers. Having reviewed all the materials, I am satisfied that the jurisdictional issue is one that can be determined in the absence of the parties by considering the materials lodged by them. I therefore dispense with a hearing.

Does the Tribunal have administrative review jurisdiction?

1. In her submissions, the applicant indicated that she believed the decisions made by Council were made contrary to the provisions of: 1. The Local Government Act 1993 (NSW) (the LGA), and 2. The State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the SEPP).
2. In submissions, the applicant identified four decisions made by Council which she was seeking to administratively review. They are: 1. At page 1 of her submissions filed on 22 December 2022: 1. "Permission for neighbours to Obstruct/Restrict their driveway entrance which is the essential flow Path to access the inter-allotment Stormwater drainage easement." 1. At page 7, allowing the neighbours, on 15 October 2022, to construct a brick wall at the front of their property which blocks the flow of stormwater, undermines existing retaining walls, and causes stormwater to accumulate on the applicant's property, with resultant damage. 2. At page 10, allowing the neighbours to attach a metal screen to a boundary fence - which interferes with the applicant's access to natural light - on the basis that it is a privacy screen. 3. At page 10, deciding on 27 November 2020, to allow a structure that the neighbours had built over the sewerage easement in their backyard to remain in place.
3. The applicant identified s 68 of the LGA and s 2.12 of the SEPP as provisions breached by Council's conduct. She did not point to any provision of either instrument which provides that NCAT may administratively review the decisions she is complaining about. Section 68 of the LGA provides: 68 What activities, generally, require the approval of the council? (1) A person may carry out an activity specified in the following Table only with the prior approval of the council, except in so far as this Act, the regulations or a local policy adopted under Part 3 allows the activity to be carried out without that approval. Table … Part B Water supply, sewerage and stormwater drainage work … 5 Carry out stormwater drainage work. Section 2.12 of the SEPP provides standards for the size, location and construction of decks, pergolas, veranda's and the like.
4. With respect to each of the applicant's second, third and fourth complaints, she relied on a decision in writing from Council dated 29 November 2022. This declined to take further action with respect to the second and third complaint, and found that the brick wall at the front of the neighbour's property did not require Council consent.
5. Council asserts that there is no relevant administrative review jurisdiction flowing from either the LGA or the SEPP. It should also be noted that Council's submissions state that it was unsure as to precise nature of the review sought by the Applicant: whether it was an external appeal or an administrative review application. This is a matter that could quickly have been ascertained. It is obvious that the application is one for administrative review.
6. Section 30 of the NCAT 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.
7. 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.
8. "Enabling legislation" is similarly defined in s 4 of both the ADR Act and the NCAT Act: 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.
9. 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.
10. The applicant, in her submissions, has not indicated any applicable enabling legislation. There are two possibilities where an enabling provision might be found: in the LGA, or in the SEPP. Neither contains provision which give administrative review jurisdiction to the Tribunal with respect to the decisions in issue. Section 68 of the LGA, upon which the applicant relied is not an enabling provision. Neither is section 2.12 of the SEPP. Indeed, the SEPP does not contain any provision conferring administrative review jurisdiction on NCAT with respect to any decision made under it.
11. In contrast there are provisions found elsewhere in the LGA which confer administrative review jurisdiction on the Tribunal, with respect to specific other decision under the LGA, such as: 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.
12. There is therefore no enabling legislation giving NCAT administrative review jurisdiction with respect to decisions made by Council about stormwater drainage under s 68 of the LGA or standards under the SEPP.
13. As a result, the Tribunal does not have jurisdiction to hear or determine the application. There is no enabling legislation conferring administrative review jurisdiction with respect to the decisions in issue.
14. I note that the facts as I have set them out also give rise to a question concerning whether the Tribunal has jurisdiction with respect to the decisions notified in Council's letter of 29 November 2022, as they were all made more than a month after the application for administrative review was filed. As I have found that the Tribunal has no jurisdiction in any case, I have decided not to address that issue as it would only lead to further unnecessary time, effort, and costs being wasted on a matter already doomed to failure. Section 36(1) of the NCAT provides that the guiding principle of the Tribunal is to provide a just, quick and cheap resolution of disputes.

Outcome

1. In my view the application for administrative review was destined to failure from the start. It should be dismissed under s 55(1)(b) of the NCAT Act on the grounds that it is frivolous, misconceived and lacking in substance as the Tribunal does not have jurisdiction.

Costs

1. Council seeks an order for costs fixed at $2,610.00. Council's solicitors wrote to the applicant on 8 November 2022 warning her that NCAT did not have jurisdiction, and that Council would seek costs if she proceeded and was unsuccessful. That is precisely what has occurred. An application for costs was included in Council's first submissions dated 23 November 2022.
2. Section 60 of the NCAT Act provides: (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following - (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may - (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.
3. In its submissions on costs Council did not address s 60. It did not provide an account for the work done or any indication of how the sum of $2,610.00 is calculated.
4. The applicant did not respond to the costs application in her submissions. She could have done so, albeit she did not have her attention drawn to s 60.
5. As the parties have not addressed the applicable costs provision, I decline to make a cost order at this time. Any further application for costs should be made within 14 days of the publication of these reasons, in accordance with the orders set out below.

Orders

1. The Tribunal makes the following 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 under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013. 3. Any application for costs is to be made within 14 days of the publication of these reasons accompanied by written submissions in support not exceeding 1500 words. 4. Submission in reply are to be made within a further 14 days and are not to exceed 1500 words.

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

Amendments 21 February 2023 - Paragraph 22 amended grammar 08 May 2023 - Paragraph 18 amended grammar 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: 08 May 2023