Land and Environment Court of New South Wales CITATION : Pittwater Council v Roberts and Another [2004] NSWLEC 142 APPLICANT Pittwater Council PARTIES : FIRST RESPONDENT Brian Raymond Roberts SECOND RESPONDENT Vonnie Jean Roberts FILE NUMBER(S) : 40825 of 2003 CORAM: Talbot J KEY ISSUES: Construction and Interpretation :- effect of deeming provision in regulation upon operation of the statute Environmental Planning and Assessment Act 1979 s 121ZJ Local Government Act 1993 s 124, s 127, s 678, s 748 LEGISLATION CITED: Protected Estates Act 1983 s 24(2)(o) Local Government (Water Sewerage and Drainage) Regulation 1993 cl 40 Supreme Court Rules 1970 Pt 42 r 9 CASES CITED: DATES OF HEARING: 02/04/2004 DATE OF JUDGMENT: 04/08/2004 APPLICANT Ms GB Furness (Barrister) SOLICITORS Mallesons Stephen Jaques FIRST RESPONDENT LEGAL REPRESENTATIVES: NA SECOND RESPONDENT Ms C Phang (Solicitor) SOLICITORS Protective Commissioner of New South Wales JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 40825 of 2003 Talbot J 8 April 2004 Pittwater Council Applicant v Brian Raymond Roberts First Respondent Vonnie Jean Roberts Second Respondent Judgment Introduction 1 On 15 October 2002 Pittwater Council ("the council") served an order on the respondents under s 124 of the Local Government Act 1993 ("the LG Act") requiring them to connect the premises known as 9 Terama Street, Bilgola Plateau ("the property") to the Sydney Water sewerage system. 2 The order has not been the subject of an appeal and has not been complied with. 3 The council is not seeking relief against the first respondent. 4 On 9 September 2003 the Supreme Court declared that the second respondent is incapable of managing her affairs and ordered that her estate be subject to management under the Protected Estates Act 1983 ("the Protected Estates Act"). The Protective Commissioner was appointed manager of the second respondent's estate. 5 The Protective Commissioner has sworn an affidavit on 30 March 2004 whereby he consents to act as tutor for the second respondent in these proceedings. He swears that he has no interest in the proceedings adverse to those of the second respondent. 6 On 2 April 2004 the council, represented by Ms Furness of counsel, and Ms Phang, as solicitor for the Protective Commissioner, appeared and presented the Court with Short Minutes of Consent Orders whereby the second respondent is ordered to cause sewerage connection works to be carried out at the property. In default the council is to carry out or cause to be carried out the works and that the second respondent be restrained from doing or omitting to do any act which interferes with or impedes the carrying out of the works at the reasonable cost of the second respondent. 7 Ms Phang has also sworn an affidavit confirming that the second respondent became a protected person within the meaning of the Protected Estates Act on 9 September 2003. She claims that the Protective Commissioner has power under s 24(2)(o) of the Protected Estates Act to bring and defend actions, suits and other proceedings on behalf of the protected person and that the Protective Commissioner has consented to act as tutor for the second respondent. 8 Before making the consent orders I requested the parties to clarify the power of the council to issue an order pursuant to s 124 of the LG Act requiring the connection of all sanitary draining and sanitary plumbing services within the property to the Sydney Water sewerage system in contradistinction to the sewer of the council, as provided in the Table to s 124 at item 24, which simply provides that an order may be made in circumstances where the premises are situated within 75 metres of a sewer of the council. 9 Section 127 of the LG Act provides that 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 column 2 of the Table to s 124. 10 There is a general regulation-making power in s 748 of the LG Act. Clause 40 of the Local Government (Water Sewerage and Drainage) Regulation 1993 ("the Regulation") provides that without limiting order No. 24 in the Table to s 124, the circumstances specified in column 2 are taken to include the sewerage system of a public authority or a state owned corporation. Clause 40 also clarifies the extent of the works that are taken to be included in column 1. 11 I am satisfied that the order made pursuant to s 124 by the council was within power pursuant to the combined effect of s 124, s 127 of the LG Act and cl 40 of the Regulation. 12 The power to authorise the council to carry out the works is in Pt 42 r 9 of the Supreme Court Rules 1970, in addition to the provisions of s 121ZJ of the Environmental Planning and Assessment Act 1979 and s 678 of the LG Act. 13 The second respondent attempted to appear in person at the hearing and continued to make submissions orally notwithstanding that I did not recognise her appearance following the orders made in the Supreme Court. 14 It is appropriate that the Court make the following orders by consent:- (1) Within 28 days of the date of this order, the second respondent cause the Sewerage Connection Works to be carried out at the Property. (2) In default of the second respondent complying with order No. 1, the applicant carry out or cause to be carried out the Sewerage Connection Works on or before 42 days of the date of this order. (3) The second respondent, her servants and agents refrain from doing or omitting to do any act which act or act of omission interferes with or impedes the entry by the applicant, its servants and agents onto the Property and remaining thereon pursuant to order No. 2, including for the purpose of inspections preparatory to and subsequent to carrying out the Sewerage Connection Works. (4) The second respondent pay the reasonable costs and expenses incurred by the applicant in carrying out order No. 2. The costs and expenses may be recovered as a debt in a court of appropriate jurisdiction. (5) The second respondent pay the applicant's costs of these proceedings. 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