Land and Environment Court New South Wales Medium Neutral Citation: Piper v Minister Administering the Water Management Act 2000 [2016] NSWLEC 136 Hearing dates: 21 October 2016 Date of orders: 21 October 2016 Decision date: 24 October 2016 Jurisdiction: Class 1 Before: Pepper J Decision: See orders at [26]. Catchwords: SEPARATE QUESTION: adequacy of formulated separate question – question reformulated – whether lay person to appear as agent for applicant. Legislation Cited: Land and Environment Court Act 1979, s 63(3) Land and Environment Court Rules 2007, rr 3.7, 7.7 Water Act 1912 Water Management Act 2000, s 368 Cases Cited: Fobitu Pty Ltd v Marrickville Council [2012] NSWLEC 81 Rural Funds Management Limited v The Minister Administering the Water Management Act 2000 [2016] NSWLEC 19 Young v Parramatta City Council [2006] NSWLEC 116; (2006) 144 LGERA 193 Texts Cited: Category: Procedural and other rulings Parties: Corie Bruce Piper (First Applicant) Nicole Louise Piper (Second Applicant) Minister Administering the Water Management Act 2000 (Respondent) Representation: Counsel: Mr P Mahaffy (Agent) (Applicants) Ms R Mansted (Respondent) Solicitors: N/A (Applicants) NSW Department of Industry, Skills and Regional Development File Number(s): 2016/162319 Publication restriction: Nil Judgment A Separate Question is Ordered 1. On 10 August 2016 the Court ordered the following question to be heard and determined separately in a Class 1 appeal under s 368(1)(i) of the Water Management Act 2000 ("the WMA"): Whether the applicants' appeal is competent. 1. The Class 1 application, filed on 9 May 2016 is in the following terms: 1 Schedule 3 condition DK2733-00001 in the Statement of Approval number 90FW833762 be completely removed from the Approval 2 A copy of the approval plan held by DPI Water as stated in condition DK2631-00001 be updated to reflect the removal of condition DK2733-00001 in order 1 above 3 Costs are awarded to the Applicant 4 Any other order the court considers appropriate 1. The separate question, framed as it was in such broad terms, suffered from the vice that it may not have been, and was not understood by the applicants, Mr Corie Piper and Ms Nicole Piper ("the Pipers"), or their agent, Mr Peter Mahaffy, to have been, dispositive of the proceedings because it was not necessarily amenable to an unqualified negative answer. 2. As has been stated on numerous occasions in this Court (Young v Parramatta City Council [2006] NSWLEC 116; (2006) 144 LGERA 193 at [6(3)] per Jagot J, adopted by Biscoe J in Fobitu Pty Ltd v Marrickville Council [2012] NSWLEC 81 at [11(3)]): (3) Where the issue sought to be separated involves a question of law, there should be "a clear definition of what the point of law raised is" (National Real Estate and Finance Co Ltd v Hassan[1939] 2 KB 61 at 77) and the facts upon which that question has to be considered should be "clearly ascertainable" (Radstock Co-operative Industrial Society v Norton-Radstock Urban District Council [1968] 1 Ch. 605 at 632, referred to in Delbant Pty Limited v North Sydney Council [2005] NSWLEC 657 at [9] to [12]). 1. It is perhaps for this reason that Mr Mahaffy's submissions sought to address, amongst other things, the merits of the Class 1 appeal and raised issues that did not appear to be relevant to the determination of the separate question. Indeed, during the hearing, it became apparent that Mr Mahaffy did not understand the scope and import of the separate question posed. 2. The Court therefore, with the assistance of, in particular, the respondent, the Minister Administering the Water Management Act 2000 ("the Minister"), sought to refine and narrow the separate question, in order to formulate a question that would permit the proceedings to be entirely disposed of depending on its answer. 3. Therefore, after considerable discussion, the following two questions emerged and were settled upon: Whether the replacement of: a. condition 1 on approval 90CW810650 with DK2631-00001 on floodwork approval 90FW833762; and/or b. condition 5 on approval 90CW810650 with DK2733-00001 on floodwork approval 90FW833762 under the Water Management Act 2000 ("the Act") constituted a "decision imposing a discretionary condition of approval" under s 368(1)(i) of the Act; and 2 If so, whether the appeal filed under s 368(1)(i) of that Act on 9 May 2016, has been brought "more than 28 days after the date on which the decision was made" under s 368(3) of the Act. 1. The gravamen of the separate questions is, as I understand the parties' arguments at this nascent stage of the proceedings, as follows: 1. upon the conversion and update, on 16 September 2015, of conditions of a flood work approval granted in 2005 pursuant to the now repealed Water Act 1912 ("the WA"), to conditions of approval under the WMA, the conditions were amended, albeit in a manner that was directed arguably to their substance and not merely their form; 2. the question therefore is whether or not these amendments constitute, in effect, new conditions, and therefore, the conversion and updating process amounts to "a decision imposing a discretionary condition on an approval" under s 368(1)(i) of the WMA; 3. if it does not, then, as the appeal is presently framed, the Court has no jurisdiction to entertain the appeal under s 368 of the WMA; and 4. if, however, it does, then this gives rise to the question precisely of when was the operative decision for the purpose of that provision. If that date is 16 September 2015, then the appeal is time barred pursuant to s 368(3) of the WMA (see Rural Funds Management Limited v The Minister Administering the Water Management Act 2000 [2016] NSWLEC 19). Whereas, if the date is 11 April 2016 – the date upon which the conversion and update was notified to the Pipers (curiously, eight months later) – then the appeal was filed within the time stipulated by s 368. 1. As reformulated, these more targeted separate questions retain the benefit of having the capacity to wholly dispose of the appeal while obviating the necessity for the parties, and the Court, to delve, to any substantial depth, into the merits of the matter. They will, moreover, afford the Pipers with the opportunity of focusing their submissions on these issues, and these issues alone, without having to answer some wider enquiry which may not eventuate. 2. The Minister, while consenting to the redrafting of the separate question in these terms, noted that additional documentary evidence may be required to meet the separate question, but that this would be in short compass. It was hence agreed that both parties would be afforded the opportunity of filing further evidence and submissions to meet the refined separate questions. But, as was emphasised before the parties, it is difficult to conceive of much additional evidence or substantial written submissions being needed. If anything, less, and not more, will be required, especially from the Pipers. Mr Mahaffy Appears as Agent for the Pipers 1. At the hearing of the application for a separate question before the Court on 10 August 2016, Mr Mahaffy sought, and was granted, leave to appear as agent for the Pipers. That leave was, however, circumscribed in time to apply to that application only. 2. Section 63(3) of the Land and Environment Court Act 1979 states as follows: 63 Right of appearance … (3) In determining whether to grant leave for a person to appear by an agent the Court is to consider: (a) whether the agent has provided the person with the information required by the rules, and (b) whether granting leave is in the best interests of the person. 1. Rule 7.7 of the Land and Environment Court Rules 2007 ("the LEC Rules") provides that: 7.7 Granting of leave for a person to appear by agent (1) For the purposes of section 63(3)(a) of the Act, the following information is required to be provided by an agent to the person for whom the agent wishes to appear: (a) that the person is under a duty to assist the Court to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings and, to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court, (b) that the person is under a duty to take reasonable steps to resolve or narrow the issues in the proceedings, (c) that the agent must not, by the agent's conduct, cause the person to be in breach of a duty referred to in paragraph (a) or (b), (d) that the Court may take into account any failure to comply with a duty referred to in paragraph (a), (b) or (c) in exercising discretion with respect to costs, (e) that the Court may make a costs order against the person in proceedings to which rule 3.7 applies if the Court considers it fair and reasonable in the circumstances and in any other proceedings if the person is unsuccessful, (f) the knowledge and experience of the agent with respect to the type of matter that is the subject of the proceedings, (g) whether the agent proposes to charge for the agent's services and, if so, the agent's proposed written costs agreement, a written estimate of the likely total of the agent's charges and the likely disbursements to be incurred by the person. (2) Before the Court determines whether to grant leave for a person to appear before the Court by an agent, the agent must acknowledge to the Court in writing, unless the Court waives the writing requirement that the agent has provided the information referred to in subrule (1) to that person. 1. Mr Mahaffy was therefore required to seek leave to appear on behalf of the Pipers for the hearing of the separate question before me. 2. Accordingly, Mr Mahaffy handed up documents that purported to demonstrate compliance with the above provisions. One of these documents was a fee agreement for his services. It revealed that he was charging the applicants a not insubstantial amount to represent them in the Class 1 appeal. This was no doubt justified on the basis that Mr Mahaffy has considerable experience as an irrigation and construction surveyor in the State. As part of his business as an irrigation and construction surveyor in New South Wales, Mr Mahaffy has lodged many applications for controlled works on flood plains under the WA and the WMA. 3. Notwithstanding some very limited litigation experience acquired in the course of his professional duties, Mr Mahaffy is not, however, legally qualified. 4. The absence of any legal qualifications, specialised training or expertise was understandably noticeable during the hearing. It was evident in the written submissions filed, a considerable portion of which sought to address irrelevant matters, including whether the order for a separate question ought to have been granted. As was explained to Mr Mahaffy, that order was made by the Court on 10 August 2010. It could not be challenged other than on appeal. 5. The submissions also sought to examine and discuss the merits of the Class 1 appeal, which, again, were not germane to the issues arising for determination on the separate question, even as originally framed. And, although no evidence was read in the hearing before me, the affidavits filed, including an affidavit from Mr Mahaffy, appeared, from an initial and cursory reading of them, problematic given the legal issue required to be determined on the separate question. Finally, the reformulation of the separate question, which ought to have been relatively straightforward affair, took over half a day. Often, Mr Mahaffy seemed to be either unable or unwilling to answer the Court's questions. He was unable, for example, to indicate what, if any, prejudice there would be to his clients if the question was reframed in the manner ultimately agreed upon. 6. Real concern therefore exists as to the extent to which Mr Mahaffy's services, well intentioned though they are and especially should the matter proceed to a merits hearing, will be in the interests of the applicants during the hearing and determination of the separate questions. In my opinion, they will not. The separate questions concern technical and complex questions of law, and not questions going to the merits of the appeal. Unless they are answered favourably towards the applicants, the merit matters sought to be raised by the appeal will not be ventilated because the proceedings will almost certainly come to an end. 7. Given that the applicants are willing to pay Mr Mahaffy to represent them as their agent, these funds, albeit limited, would, in my view, be better spent on securing the services of a legal representative with experience and knowledge in this technical area. 8. This is particularly so given that although there is usually no order as to costs in Class 1 proceedings, this presumption can be rebutted. Rule 3.7(2) and (3) of the LEC Rules states as follows: 3.7 Costs in certain proceedings (2) The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances. (3) Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following: (a) that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question: (i) in one way was, or was potentially, determinative of the proceedings, and (ii) was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings, (b) that a party has failed to provide, or has unreasonably delayed in providing, information or documents: (i) that are required by law to be provided in relation to any application the subject of the proceedings, or (ii) that are necessary to enable a consent authority to gain a proper understanding of, and give proper consideration to, the application, (c) that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings, (d) that a party has acted unreasonably in the conduct of the proceedings, (e) that a party has commenced or defended the proceedings for an improper purpose, (f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where: (i) the claim or defence (as appropriate) did not have reasonable prospects of success, or (ii) to commence or continue the claim, or to maintain the defence, was otherwise unreasonable. 1. The factors referred to in r 3.7(3)(a) and (d) are relevant in the present proceedings. The separate questions to be determined involve questions of law, or at the very least, questions of mixed fact and law, that could, if answered against the applicants, be determinative of the proceedings (r 3.7(3)(a)). Moreover, as the discussion above makes plain, the conduct of the applicants during any hearing, through Mr Mahaffy, may have a bearing on whether costs are awarded against them in the proceedings determining the separate questions. 2. It should be noted in this regard that had the proceedings been adjourned part-heard I would have withdrawn Mr Mahaffy's permission to appear as the applicants' agent. For him to continue to act in this capacity is not, in my opinion, in the best interests of the applicants. However, this is not what transpired, and therefore Mr Mahaffy (or anyone else) is entitled to make such further and fresh application as he sees fit to represent the applicants as their agent. Any application will be dealt with by the trial judge determining the separate questions, which will be a matter for allocation by the Chief Judge of the Court. Costs 1. Mr Mahaffy sought costs of the hearing before me on the basis that it was Minister's question that had required reformulation and his clients ought not to have to bear either the cost of doing so or the cost of another day of hearing to deal with the separate questions. 2. But as r 3.7(2) of the LEC Rules indicates, the usual rule for Class 1 proceedings is that each party bears their own costs. In the present case, there was nothing warranting departure from that rule. Orders 1. At the conclusion of the hearing, the following orders were made: 1. substitute the separate question ordered by Sheahan J on 10 August 2016 with the following separate questions for determination: 1. Whether the replacement of: a. condition 1 on approval 90CW810650 with DK2631-00001 on floodwork approval 90FW833762; and/or b. condition 5 on approval 90CW810650 with DK2733-00001 on floodwork approval 90FW833762 under the Water Management Act 2000 ("the Act"), constituted a "decision imposing a discretionary condition of approval" under s 368(1)(i) of the Act; and 2. If so, whether the appeal filed under s 368(1)(i) of that Act on 9 May 2016, has been brought "more than 28 days after the date on which the decision was made" under s 368(3) of the Act. 1. the matter is stood over for further directions (by way of telephone conference) at 4.15pm before Pepper J on 27 October 2016. 1. Finally, the Court noted that Mr Peter Mahaffy's leave to appear as agent for the applicants did not extend beyond the hearing on that day. ********** 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: 24 October 2016