Northey v Bega Valley Shire Council [2008] NSWLEC 319

Land and Environment Court of New South Wales

CITATION : Northey v Bega Valley Shire Council [2008] NSWLEC 319

APPLICANT Janice Northey PARTIES : RESPONDENT Bega Valley Shire Council

FILE NUMBER(S) : 41093 of 2008

CORAM: Sheahan J

KEY ISSUES: Jurisdiction :- dismissal for want of jurisdiction

Land and Environment Court Act 1979 LEGISLATION CITED: Roads Act 1993 Water Act 1912

Castlemaine Tooheys Limited and Others v The State of South Australia (1986) 161 CLR 148 CASES CITED: Fern and Another v Willoughby Municipal Council (1982) 47 LGRA 241 National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 71 LGRA 286 Newcastle City Council v Caverstock Group Pty Ltd [2008] NSWCA 249

DATES OF HEARING: 10 December 2008

EX TEMPORE JUDGMENT DATE : 10 December 2008

APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENT Mr M McMahon, solicitor of M E McMahon & Associates

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Justice Sheahan

10 December 2008

41093 of 2008 Northey v Bega Valley Shire Council

EXTEMPORE JUDGMENT 1 His Honour: Ms Northey has commenced these class 4 proceedings to restrain the Council from removing a fence on a riparian enclosure for stock. She appears without legal representation. 2 The originating process was styled "summons" and did not distinguish interlocutory from substantive relief. 3 As Duty Judge at the time I conducted a telephone mention on 3 November at which two Council officers represented the Council. The Council agreed to hold action without any orders being made by this court. 4 Council has since engaged legal representation, and on 24 November filed the Notice of Motion before me today seeking to dismiss Ms Northey's action for want of jurisdiction. 5 My notes of the telephone mention on 3 November record that I explained to Ms Northey in lay terms the principles of interlocutory relief set out in Castlemaine Tooheys Limited and Others v The State of South Australia (1986) 161 CLR 148 ("Castlemaine Tooheys"), including her possible exposure to damages and costs, and the need to identify a breach of the law which the court should restrain. 6 I recall expressing some concern during the mention that the catalogue of jurisdiction in s.20 of the Land and Environment Court Act 1979 ("Court Act") may mean that this court lacks class 4 jurisdiction to assist Ms Northey with her problem, no matter how well she might meet the Castlemaine Tooheys test in other respects. I drew her attention also to the complex provisions of the Water Act 1912, some of which might support her while others would work against her. 7 In support of its Notice of Motion today, Council relies on an affidavit of its officer Daniel Madigan, who deposes that the relevant fence is erected on a council road reserve, that it is unauthorised, and that Council has issued its direction to Ms Northey and her husband to remove it pursuant to s.107 of the Roads Act 1993. The court has had the benefit also of written and oral submissions from Council's legal representative Mr McMahon. 8 Ms Northey has made written and oral submissions and a detailed affidavit dated 29 October, which I have read again today as part of her case. She has also shown the court various photographs and other documents upon which she would rely in the substantive proceedings, including the submissions she had before her during the telephone mention. The latter document says that it was forwarded to my Associate for that mention, but it is not in the file and I did not see it until today. It includes relevant photographs. 9 I am certainly satisfied that there are serious issues to be tried in order to resolve the dispute between Ms Northey and the Council. To outline just some of the questions in brief: · the relevant fence, its antecedents and other nearby perhaps relevant fences have a history dating back to at least 1922. · There is some argument about the land upon which it/they are erected. · Ms Northey says Council must respect her "customary and pre-existing riparian enclosure", to ensure she can access stock water in the drought. · She asserts her entitlement, as a successor in title, to rely on a permit granted in 1922 to a Mr Britten. · The Department of Lands says that that permit (to "enclose roads or watercourses" - No.1922/15) was cancelled on 3 December 1985. · Ms Northey says that Council has relied on incorrect title particulars in drawing the conclusions which underpin its current position. · Some of her claims may well ground a serious argument on discretion in appropriately articulated proceedings. 10 She has also shown the court a Notice of Motion she intends to file amending her claim to reflect the whole of the evidence she says is available, if the court holds it has jurisdiction to entertain it. 11 However, the preliminary or threshold issue before the Court today is whether any of these questions can be tried in this court. 12 This court is a superior court established by statute with specific or limited jurisdiction spelt out in the statute, within which limitations it must confine its activities. See National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 71 LGRA 286. 13 The Council has acted under s.107 of the Roads Act. Some sections of that Act have found their way into the jurisdictional provisions of the Court Act e.g. ss 15, 105 and 106 are mentioned in s 18, which deals with merit assessment and appeals. Section 107 is not so included. 14 Also, s 18 of the Court Act would not enable this court to adjudicate upon Ms Northey's claim that the Council should be relying on ss 104 and 105 of the Roads Act, rather than s 107. 15 Section 20 of the Court Act spells out the court's class 4 jurisdiction, and does not cover any provisions of the Roads Act as a "planning or environmental law". See Fern and Another v Willoughby Municipal Council (1982) 47 LGRA 241. 16 Ms Northey relies on the court's powers under s 16 (1A) of the Court Act to grant relief "ancillary" to a matter within its jurisdiction, in this case an alleged breach by Council of its LEP (Bega Valley LEP 2002) especially cl 12(2) pars (e), (f) and (h). 17 She submits that the word "ancillary" should be construed broadly. That submission would gain some support from the recent comments of the Chief Justice in Newcastle City Council v Caverstock Group Pty Ltd [2008] NSWCA 249 ("Caverstock") at [50], but she has not made good what the court could, should or would do by way of enforcement of the LEP zone objectives in cl 12 against the Council, rather than enforcing Council's application of them as controls during a development assessment. 18 Section 16(1A) can be enlivened only when some primary relief is available. Caverstock concerned the possible power of this court to order a refund of an overpayment of s 94 contributions, in the event that the developer won an appeal against the stringent terms of a s 94 condition imposed on a consent. 19 I have, therefore, concluded that this court does not have jurisdiction to deal with Ms Northey's claims. 20 Ms Northey has asked the court, in that event, to make orders transferring the matter to the appropriate forum, which is probably the Supreme Court. 21 While the Supreme Court may order transfer of proceedings to this court, a reciprocal power does not exist. 22 Accordingly, the only order I can make is to dismiss these proceedings. 23 As that order is made on the basis solely of want of jurisdiction, it involves no findings on questions of fact or merit, and fresh proceedings can well be commenced elsewhere. 24 Ms Northey has submitted that I should not make any order for costs against her. In all the circumstances, I think that that is the appropriate exercise of the court's costs discretion. 25 I will return to Ms Northey some of the papers and photographs she handed up with her written submissions today, but her written submissions prepared for the telephone hearing and those she relied upon today should remain on the court's file. 26 The formal orders of the court are: