Carmont v Local Land Services [2016] NSWCATAD 82

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Carmont v Local Land Services [2016] NSWCATAD 82 Hearing dates: 26 April 2016 Date of orders: 02 May 2016 Decision date: 02 May 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: Hennessy LCM, Deputy President Decision: The appeal is dismissed. Catchwords: EXTERNAL APPEAL – jurisdiction - occupier of land may appeal to the Civil and Administrative Tribunal against a decision of Local Land Services to impose a condition or direct the making of any improvement Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 31 Local Land Services Act 2013 (NSW), s 75 and s 76 Category: Principal judgment Parties: David Carmont (Applicant) Local Land Services (Respondent) Representation: D Carmont (Applicant in person) J McGoldrick (Respondent) File Number(s): 1610070

REASONS FOR DECISION 1. Local Land Services has applied for an external appeal by Mr Carmont to be dismissed because the Tribunal does not have jurisdiction to determine it. I agree that the Tribunal does not have jurisdiction and dismiss the appeal. 2. Mr Carmont and some of his neighbours are entitled to a right of way over a travelling stock reserve so they can access their properties: Local Land Services Act 2013, s 75(1). A right of way is subject to such conditions, including conditions as to position, construction or improvement that Local Land Services imposes. On 17 June 2011 the predecessor to Local Land Services directed Mr Carmont and another neighbour to construct and maintain a roadway from the exit off a road to the southern end of the travelling stock reserve. A neighbour, Ms Meredith, was also entitled to a right of way over the travelling stock reserve to access her property. No condition was placed on her to construct or maintain a roadway. 3. On 9 December 2015 Mr Carmont asked Local Land Services not to allow Ms Meredith to be permitted to continue to use the travelling stock reserve to access her property. On 21 December 2015 Local Land Services confirmed that Ms Meredith could continue to use the travelling stock reserve. When Mr Carmont heard that Ms Meredith was planning to sell her property he emailed Local Land Services on 29 December 2015 asking whether the new owners intended to use the travelling stock reserve and, if so, whether any conditions were proposed. Local Land Services replied on 4 January 2016 saying that there had been no contact from any person relating to the travelling stock reserve and that: The purchasers of the property will have the same access rights as currently apply. 1. It is the communication in the 4 January 2016 email that Mr Carmont submits is a decision which the Tribunal has jurisdiction to determine as an external appeal: Civil and Administrative Tribunal Act 2013 (NSW), s 31. Mr Carmont says that giving his new neighbours access to their property via the travelling stock reserve indirectly imposes a condition on him to maintain the travelling stock reserve without any contribution from the new neighbours. Mr Carmont says this is unfair. 2. Section 75 the Local Land Services Act gives an occupier of land a right of way over a travelling stock reserve in certain circumstances but allows Local Land Services to impose conditions as to the exercise of that right including conditions as to its position, construction or improvement. Section 76 gives an occupier of land the right to appeal to the Tribunal against a decision of Local Land Services to impose a condition under section 75. 3. The purported decision of the Local Land Services on 4 January 2016 is not a decision to impose a condition on Mr Carmont's right of way. Rather, it is a confirmation to him of the status quo that another occupier, his neighbour, will be entitled to use that right of way without conditions. It is not the Tribunal's role to determine whether the purported decision is fair. The Tribunal's role is hear appeals from decisions that parliament has given it jurisdiction to determine. As the decision conveyed in the email of 4 January 2016 is not a decision which the Tribunal has jurisdiction to determine, the application is dismissed. 4. Sections 75 and 76 of the Local Land Services Act are set out in full below. 75 Certain occupiers of land to have a right of access over travelling stock reserves (1) An occupier of land is entitled to a right of way over a travelling stock reserve (whether controlled or managed) to and from the road nearest to the land if no other access to and from the land by means of an established road or track is available. (2) A right of way is subject to such conditions as to its exercise (including any conditions as to its position, construction or improvement) as may be imposed by Local Land Services in a particular case. (3) Local Land Services is to give notice to the occupier of land of any condition imposed by it on a right of way of the occupier. (4) The occupier may, with the approval of Local Land Services, and must if directed to do so by Local Land Services by notice in writing, construct or make improvements to the occupier's right of way over the reserve. (5) Any construction or improvements are to be made at the expense of the occupier. Section 76 of the Local Land Service Act 2013 provides that: 76 Appeal about right of way conditions (1) An occupier of land may appeal to the Civil and Administrative Tribunal against a decision of Local Land Services to impose a condition or direct the making of any improvement under section 75. Note : An appeal to the Civil and Administrative Tribunal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013 . A decision of the Tribunal on such an external appeal may be appealed to the Land and Environment Court under Schedule 1 to that Act. (2) The appeal must be made within 28 days of receipt of notice of the decision or direction. (3) On hearing the appeal, the Tribunal may: (a) revoke the decision or direction, or (b) confirm the decision or direction.