Land and Environment Court New South Wales Medium Neutral Citation: Cachia v Parramatta City Council [2018] NSWLEC 78 Hearing dates: 22 May 2018 Date of orders: 22 May 2018 Decision date: 24 May 2018 Jurisdiction: Class 2 Before: Molesworth AJ Decision: See orders at [48] Catchwords: PRACTICE AND PROCEDURE – summary dismissal of proceedings – Class 2 proceedings challenging validity of order made under s 124 of the Local Government Act 1993 – order the subject of the proceedings revoked by Respondent Council – Applicant declined to discontinue proceedings – basis for Court's jurisdiction no longer extant – irregularity of proceedings - proceedings dismissed pursuant to r 31.1 of the Land and Environment Court Act 1979 or, in the alternative, r 13.4 of the Uniform Civil Procedure Rules 2005 Legislation Cited: Civil Procedure Act 2005 s 13 Land and Environment Court Act 1979 ss 18(a), 31 Local Government Act 1993 ss 7, 21, 124, 125, 153(1), 180 Uniform Civil Procedures Rules 2005 rr 13.4, 49.16, 49.18 Cases Cited: Cachia v The Hills Shire Council [2010] NSWLEC 136 Category: Procedural and other rulings Parties: Saviour Laurence Cachia (Applicant) Parramatta City Council (Respondent) Representation: Counsel: No Appearance (Applicant) Mr Chris Gough (solicitor) (Respondent) Solicitors: No Appearance (Applicant) Storey & Gough (Respondent) File Number(s): 2018/85414 Publication restriction: Nil JUDGMENT THE PROCEEDINGS 1. Pursuant to s 180 of the Local Government Act 1993, (LG Act), by Application filed on 16 March 2018, Saviour Laurence Cachia, the Applicant, commenced Class 2 proceedings before the Court. The proceedings relate to an order 12 under s 124 of the LG Act, issued by Parramatta City Council, the Respondent Council, on 1 March 2018 (the Order 12). 2. Pursuant to s 18(a) of the Land and Environment Court Act 1979 (LEC Act), appeals under s 180 of the LG Act are assigned to Class 2 of the Court's jurisdiction. 3. The Order 12 was issued with respect to the Applicant's property at 3 Yalding Avenue, Carlingford, New South Wales (the Land), and required the Applicant: "To do such things as replace and repair to (sic) guttering system at the subject premises which are necessary to control the flow of surface water across land". The Order 12 required the Applicant to comply within 28 days of the date of the order. 4. The Order 12, under the heading "Reasons for Order", stated that: "The non-existent storm water guttering system at the subject premises is causing other land, or a building on the land or other land, is being damaged (sic) or is likely to be damaged". Those words appearing in the Order 12 are merely a close recital of the statutory words in column 2 of item 12 in the Table to s 124 LG Act. There was no particularity given, identifying other land, or a building on other land, or for that matter, how the building on the land itself was damaged or likely to be damaged. This non-specific general wording used by the Respondent Council in its Order 12 is material to the outcome in these proceedings. 5. The Applicant's Class 2 Application sought three orders as follows: 1. The Order is invalid or void. The giving of the Order is without substance and the terms of the Order are unreasonable; 2. Revocation of Order and/or striking out of Order; 3. Costs and damages. 1. The Class 2 Application provided an explanation why the Applicant brought the proceedings, set out in a discursive style amongst the orders that were sought. To quote: "The order is spurious, made by Council in response to my complaint about the water from a neighbour's land. There is no damage done. There is no likelihood of damage. There is no "flow of surface water across land". There is no damage caused to other land. There is no damage done to a building on the land. There is no damage done to a building on other land. There is no likelihood of damage to a building on the land. There is no likelihood of damage to a building on other land". 1. The Court notes from a letter to the Registrar from the Applicant dated 22 March 2018, filed on the Court file, that the Applicant is a Chartered Engineer with the following qualifications: M.I.E. Aust - 1970; M.I.E.E. (Lon.) - 1967; M.I.E.R.E.(Lon.) - 1961. The Court surmises that the Applicant's qualifications and professional certification enables him to express his views, with confidence, regarding the veracity of the underlying purpose of the Order 12 to "control the flow of surface water across land". However, that is an aspect of the proceedings that is not before me to decide. APPLICANT DRAWS ATTENTION TO EARLIER s124 ORDER 1. In submissions dated 6 April 2018, submitted by the Applicant for consideration by the Registrar in the course of a directions hearing on 17 April 2018, the Applicant advised as follows. First, he advised that he suffers the disability of deafness and that, being of the age of 86, travelling to and from the Court is daunting for him. He therefore sought to be excused from attending that directions hearing, advising that he would abide by the directions made by the Registrar. Secondly, whilst setting out the directions he was seeking, the Applicant then referred to earlier proceedings he had brought involving an earlier Council's actions with respect to the same guttering issue the subject of the Order 12 in these proceedings. 2. In Cachia v The Hills Shire Council, [2010] NSWLEC 136 (the 2010 Judgment), Preston CJ considered an almost identical order issued under s 124 of the LG Act against the Applicant in relation to the same guttering on the same house on the Land. Indeed, in the Applicant's submissions dated 6 April 2018, the Applicant stated: "The guttering of the property was not repaired and is in the same condition it was in prior to the said Orders of 2009 and 2010. Nor has the property been altered in any way since then". The Hills Shire Council was the predecessor municipal authority to Parramatta City Council for that area which includes the Applicant's Land. 3. Of relevance to the current proceedings at [15]-[23] of the 2010 Judgment, Preston CJ stated: 15 At the commencement of the hearing of the motion on 29 April 2010, I raised with the parties the issue of the validity of the order the Council had issued to Mr Cachia and gave the parties an opportunity to consider and to address on the issue. 16 The issue arose because of the terms of the power under s 124 of the Local Government Act to issue orders. Section 124 confines the power in terms of the types of the orders that may be issued, the circumstances in which each type of order may be issued and the persons to whom an order may be issued. Section 124 states: "A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table. 17 The Council in this case relied on item 12 in the Table to s 124. Item 12 of the Table states: Column 1 Column 2 Column 3 To do what? In what circumstances? To whom? 12. To do such things as are necessary to control the flow of surface water across land. Other land, or a building on the land or other land, is being damaged or is likely to be damaged Owner or occupier of land 18 The order the Council issued on 4 January 2010 was directed to Mr Cachia who is the owner of the premises at 3 Yalding Avenue, Carlingford. The order therefore complied with Column 3. The order directed Mr Cachia to remove and replace the stormwater guttering downpipes and drainage lines to the street. Such work was capable of meeting the description of work specified in Column 1. 19 The problem, however, was whether the circumstances specified in column 2 existed. For an order under item 12, the circumstances that must exist in order to the Council to issue an order under s 124 of the Local Government Act is that, "Other land, or a building on the land or other land, is being damaged or is likely to be damaged." 20 In the case of the order issued by the Council to Mr Cachia on 4 January 2010, however, the Council did not allege that such circumstances existed. The Council expressly stated in the order its reasons for issuing the order. They were that the existing stormwater disposal on Mr Cachia's premises "fails to ensure appropriate control of stormwater from the property". 21 The only consequence the Council stated in the order of the lack of control of stormwater from Mr Cachia's premises was a failure "to minimise the potential hazard to the pedestrians utilising Council's road reserve." 22 Hence, there was no allegation by the Council in the order issued on 4 January 2010 that the uncontrolled stormwater was damaging or was likely to damage Mr Cachia's land or any building on it (the expressed concern was uncontrolled flow of stormwater "from" Mr Cachia's premises) or the Council's road reserve or any building (which includes a structure) on it (the expressed concern was for pedestrians using the Council's road reserve not the land or any structure on the land constituting the road reserve). 23 Hence, on the face of the order issued by the Council on 4 January 2010, the circumstances specified in Column 2 for item 12 that must exist in order for the Council to have power to issue an order under s 124, did not exist. The order, therefore, was outside power. COUNCIL REVOKES s124 ORDER 1. By email dated 9 April 2018 the Registrar directed the Applicant to serve his submissions of 6 April on the Respondent Council. The Applicant's reference in those submissions to the 2010 Judgment, regarding a similar s 124 order issued with respect to his gutters, no doubt caused the Respondent Council to reflect upon the strength of its position, which was, of necessity, reliant upon its own s 124 order being valid. As I observed at [4] above, the subject Order 12 suffered from a similar absence of particulars to that which was before Preston CJ in 2010. 2. After receiving the Applicant's submissions and, most probably, heeding the 2010 Judgment, by letter dated 24 April 2018 addressed to the Applicant, the Respondent Council advised that the Order 12 had been revoked. This letter also stated: "please be advised that Council will issue a new Notice in the near future for this matter". 3. In the correspondence on the Court file, in particular the Council's letter of 24 April 2018 advising of the revocation, no explanation was given as to why the Order 12 had been revoked. Be that as it may, pursuant to s 153(1) of the LG Act an order given by a council may be revoked by that council at any time. The LG Act does not require reasons for such revocation to be given. DISCONTINUANCE NOT FORTHCOMING 1. Given the subject matter of the Applicant's Class 2 proceedings had been the now revoked Order 12, the subject matter of the proceedings was no longer a live issue. In the normal course an applicant, who had commenced proceedings challenging such an order, would file a Notice of Discontinuance. However in this case, by letter of 3 May 2018 addressed to the Registrar, the Applicant advised that he would not agree to a discontinuance of the proceedings unless: 1. the Respondent Council gave a binding undertaking that it will not issue a new order on the issue of the missing roof gutter at the Land; and 2. the Respondent Council reimbursed the Court filing fee of $937.00 which had been paid by the Applicant on the commencement of the proceedings. 1. A directions hearing was then conducted by the Registrar on 4 May, at which the solicitor for the Respondent Council confirmed that the Council would reimburse the Applicant's filing fee. As for the Applicant's request for a binding undertaking with respect to any future orders regarding the Applicant's gutters, it was clear the Applicant would not willingly discontinue his proceedings. Consequently, the Registrar listed the matter for Online Court on 11 May 2018, with the words in her email of 4 May 2018: "to allow the discussions between the parties to continue". 2. Importantly, the Registrar's email to the parties of 4 May 2018 stated: "If a Notice of Discontinuance is not filed by 11 May 2018, then the parties are to update the court as to the status of the proceedings. At this time the Court will make further orders, which may include dismissing the proceedings" (emphasis added). 3. By letter from the Applicant to the Registrar dated 9 May 2018, he submitted as follows: I do not agree to a discontinuance of the LEC proceedings. The Respondent has said that it would issue me with a new ORDER on the issue of the missing roof gutter at 3 Yalding Avenue, Carlingford NSW 2118. There is no point in discontinuing the LEC proceedings so as to restart them afresh all over again. This matter has been listed for hearing on 27 August 2018, commencing on site at 9.30 a.m. at 3 Yalding Avenue, Carlingford NSW 2118. I have made arrangements to be in attendance on this date. I have spent considerable time and effort on this matter already. I have also suffered considerable anxiety over it. I am 86 years old and infirm. I earnestly request the Court to reject discontinuance and to proceed with the hearing on site at 9.30 a.m. on 27 August 2018. 1. In the absence of an agreement between the parties regarding the disposal of the proceedings, specifically the refusal of the Applicant to discontinue his Class 2 proceedings – despite the subject matter of those proceedings being no longer extant – the proceedings were again listed for further directions before the Registrar on 22 May 2018. 2. Via Online Court at 12.06pm on 21 May 2018, the solicitor for the Respondent Council confirmed to the Registrar that "the Order dated 1 March 2018, the subject of the Appeal, has been revoked. The Respondent has agreed to pay the Applicant's filing fees of $937.00. Basis for request: orders sought. Are you submitting these orders on behalf of other active participants? No (Opposed or consent not yet obtained)". In short, with the Applicant declining to discontinue his proceedings, the Respondent Council was now seeking an order dismissing the proceedings. REFERRAL FROM THE REGISTRAR 1. The proceedings having been listed for directions before the Assistant Registrar on 22 May 2018 at 9.00am, the matter came on for hearing at 10.00am. Mr Gough, solicitor for the Respondent Council appeared. There was no appearance by or for the Applicant, the matter having been called three times. In the context of earlier communications from the Applicant, given his advanced age and infirmity due to deafness, it was not unexpected that he would not appear. 2. Given the nature of the issues arising from the Applicant's refusal to discontinue the proceedings, the Assistant Registrar decided that it was necessary for the proceedings to be referred to a judge of the Court. The relevant contextual positions of the parties at this stage were as follows. 1. The Applicant had made it clear he would not discontinue the proceedings unless his pre-conditions, as set out in his letter of 3 May 2018, were met. 2. The Respondent Council had agreed to one pre-condition, being the payment of the Applicant's Court filing fee but had not responded to the second pre-condition – the undertaking. 3. (3) In the absence of the Respondent Council providing the undertaking the Applicant sought, the Assistant Registrar was aware that the Applicant was pressing for the current proceedings to be kept "alive" in anticipation of a future s 124 LG Act order that the Respondent Council may serve upon him. 1. The instrument of Delegation to Registrars under s 13 of the Civil Procedure Act 2005, made by the Chief Judge of the Court on 14 May 2014, sets out the functions of the Land and Environment Court that may be exercised by the Registrar (including a person acting as the registrar or as a deputy to the registrar – which includes the Assistant Registrar). 2. After a review of the delegated functions of the Registrar, the Assistant Registrar, entirely properly, considered that there may be a question regarding her power to dismiss the Applicant's proceedings in the described circumstances. Consequently, this matter came before me pursuant to a referral from the Assistant Registrar in accordance with r 49.16 of the Uniform Civil Procedure Rules (UCPR). Pursuant to r 49.16 of the UCPR a registrar, of his or her own motion or on application by a party, may refer any proceedings before the registrar to the Court. 3. Pursuant to r 49.18 of the UCPR, on the reference or removal to the court of any proceedings before a registrar, the court: 1. may hear and determine any matter in the proceedings in respect of which the proceedings were before the registrar, or 2. may determine any question arising in the proceedings and remit the proceedings to the registrar with such directions as the court thinks fit. 1. For completeness, I confirm that the UCPR apply to the Land and Environment Court in, inter alia, Class 2 proceedings by virtue of Schedule 1 of the UCPR and, specifically, Division 4 Part 49 has not been excluded from the jurisdiction of the Court. 2. The hearing that took place before me following the referral from the Assistant Registrar was effectively requested by the Respondent Council, seeking an order dismissing the proceedings. Further, in circumstances where the subject matter of the proceedings, being the Order 12, had been revoked and there was now no subject matter requiring consideration in the proceedings, the Court itself requires finality. As noted in [16] above, the Applicant had been formally advised by the Register in her email of 4 May 2018 that, in the absence of a discontinuance, the Court may order that the proceedings be dismissed. 3. At the hearing before me, Mr Gough appeared for the Respondent Council and in oral submissions confirmed that the subject matter of the proceedings, being the Order 12, had been revoked and so there was no longer any matter before the Court sustaining the Court's jurisdiction in a Class 2 proceeding. He confirmed that the Applicant's Court filing fee of $937.00 would be paid by the Respondent Council and offered payment within 14 days. 4. There was no appearance by or for the Applicant. As mentioned in [8] above, the Applicant had advised that he suffers the disability of deafness and that, being of the age of 86, travelling to and from the Court is daunting for him. Accordingly, the Court was not surprised that the Applicant did not appear. CONSIDERATION 1. With the subject matter of the Class 2 proceedings having been removed from contention, in that the Order 12 had been revoked by the Respondent Council, there is no longer any matter before the Court capable of founding its jurisdiction. The Land and Environment Court is a creature of statute, therefore the jurisdiction to consider appeals in relation to s 124 LG Act orders is purely that which is granted by s 180(1) of the LG Act, applying in concert with s 18(a) of the LEC Act. 2. Accordingly, given that s 180(1) LG Act unambiguously states that: "A person on whom an order is served may appeal against the order to the Land and Environment Court" and then s 18 LEC Act states that the Court has jurisdiction ….. to hear and dispose of the following; (a) appeals or objections under sections … 180 .. of the LG Act, there must necessarily be an extant order to found the Court's jurisdiction. In short, no order, no jurisdiction. 3. With no extant s 124 LG Act order remaining, it follows that the proceedings must be terminated. Preferably, an applicant who instigated proceedings, once advised of the Court's absence of jurisdiction, should not wish to press the Court to somehow continue the proceedings, thereby inconveniencing both the Court and other parties. At this point a notice of discontinuance should be filed. Without the proceedings being formally discontinued, an irregularity arises. 4. Irregularity of proceedings is provided for in s 31 of the LEC Act: (1) This section applies if the Court determines, on application by a party or of its own motion, that any proceedings before it are not being dealt with in the manner appropriate to the class of jurisdiction to which they belong. (2) In the circumstances referred to in subsection (1), the court may make either of the following orders on such terms as may be necessary: (a) an order that the proceeding be dismissed, (b) an order that the proceeding be dealt with in the appropriate manner. 1. Although the Applicant Council has sought an order from the Court disposing of the proceedings – see [19] above, its representations may not have been, in terms of s 31, strictly expressed it in terms of irregularity. Be that as it may, the Court on its own motion may determine "that any proceedings before it are not being dealt with in a manner appropriate to the class of jurisdiction to which they belong". So, in the context of Class 2 proceedings focussed on a s 180 LG Act appeal, given the absence of a s 124 order once it has been revoked, it necessarily follows that the proceedings before the Court are not, by any interpretation, being dealt with in an appropriate manner. 2. It follows from the foregoing, as the irregularity goes to jurisdiction, that the Court should make an order dismissing the proceedings. 3. In passing, I note that the Instrument of Delegation to the Registrar, referred in [22] above, does includes functions under 31 of the LEC Act, nevertheless in circumstances of complexity where the Assistant Registrar had some uncertainty as to her jurisdiction, it was appropriate for the referral, as referred to in [23] above, to have been made. 4. It is appropriate that I also confirm that the Court has an additional power to dismiss the Applicant's proceedings in the circumstances of this case. Pursuant to r 13.4 of the UCPR: (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. 1. Although there would be a number of bases under r 13.4 upon which the Court could conclude that the proceedings should be dismissed, without a requisite s 124 LG Act Order 12 being extant, it is sufficient for the Court to conclude that there is no reasonable cause of action remaining available to the Applicant. Further, in the context of there being no jurisdiction remaining sufficient to found the Class 2 proceedings, for the Applicant to insist that he should somehow be allowed to press ahead, the proceedings would thereby be an abuse of the process of the Court. (I note that pursuant to the Instrument of Delegation to the Register referred to earlier, functions under UCPR Rule 13.4 do not fall within the Registrar's functions, hence if the proceedings were to be dismissed under this head of power, referral by the Registrar to the Court would be necessary). OBSERVATIONS REGARDING ANY FUTURE s124 ORDER 1. Finally, it is necessary to explain why the Applicant's propositions regarding any future s 124 LG Act Order 12 would be inconsistent with the requirements of the law. There are two propositions to be examined: 1. First, the Applicant sought, paraphrasing, an irrevocable undertaking that the Respondent Council would not issue any new Order 12 with respect to guttering on the Land. Had the Applicant received such an undertaking, he would have discontinued his Class 2 proceedings. 2. Secondly, the Applicant "earnestly" requested the Court to not discontinue the proceedings, in the context of the Respondent Council stating that it would issue a new s 124 Order (replacing the revoked Order 12), as there was no point in discontinuing the proceedings "so as to restart them afresh all over again". In essence, the Applicant wanted to keep the current proceedings "alive" so that any future s 124 order could be dealt with in the currently scheduled hearing in August 2018 for the current proceedings. The request to undertake not to issue a new a s124 order 1. With respect to the first proposition, Parramatta City Council is a creature of statute empowered to carry out its functions in accordance with the LG Act. The power to order a person to do or refrain from doing a thing is found in s 124 LG Act. So when circumstances arise which warrant the exercise of power pursuant to that section, the Council is, in essence, duty bound to exercise that power. Obviously in this case the revoked Order 12, whether it was valid or not, was focused on controlling an alleged flow of surface water across land so as to prevent damage. 2. Section 7 of the LG Act confirms that, inter alia, one of the purposes of the Act is to: "set out the responsibilities and powers of councils, councillors and other persons and bodies that constitute the system of local government". Section 21 confirms that a council has the functions conferred or imposed on it by or under the Act. The Council is empowered by s 125 to abate a public nuisance or order a person responsible for a public nuisance to abate it. It may be the power under s 124 is exercised by councils in order to abate a nuisance. 3. It is in the context of the foregoing, the giving of an undertaking to the Applicant to not issue a new s 124 LG Act Order 12 would constitute an undue, indeed improper, fettering of the Council's statutory powers and duties. Had such an undertaking been given, it would most probably have been ultra vires. 4. The Respondent Council cannot presume what physical or climatic conditions might lie ahead which are relevant to the Land. Future physical circumstances may or may not be different, hence any undertaking would be an attempted fetter on the exercise of future statutory responsibilities. Accordingly, the Applicant's request for such an undertaking to be given by the Respondent Council as a precondition to discontinuing his proceedings was an unreasonable request which, as above, if acted upon by the Council, would most probably have been beyond its legal power. The request to keep the current proceedings on foot for a future s124 order 1. Coming now to the Applicant's second request, this time with respect to future s 124 LG Act orders, the Applicant submitted that the Court should not dismiss his proceedings, despite the revocation of the Order 12, in order to keep the proceedings "alive", with its scheduled hearing date in August 2018, to be utilised in the event that a future order is issued by the Respondent Council. 2. Although the Court did note in [12] above that the Respondent Council advised, in its notification of revocation, that it would issue a new order under s 124 LG Act, that prospect is not sufficient to keep the current proceedings on foot. There is no legal basis for doing so, even if it were warranted. 3. As stated earlier in [29], the Court itself is a creature of statute with its jurisdiction created by the various powers granted to it in legislation, in this case the LEC Act and the LG Act. There is no legal power to keep current proceedings alive, prospectively in the expectation that the Respondent Council might issue a new order and the Applicant, finding himself in disagreement with such action again, then wish to challenge that order in Court. 4. To reiterate, the Court has no jurisdiction with respect to a future s 124 LG Act order until a number of prerequisite steps occur – none of which may occur with any certainty at this point in time. First, the Council would have to consider whether the circumstances on the Land at a future point in time might, at that time, constitute a nuisance or might damage (specified) buildings or (specified) properties by reason of the flow of water across the surface of the Land. Secondly, Council would have to resolve to serve a s 124 LG Act order 12 on the Applicant. Thirdly, the Applicant would have to consider whether he might take steps to comply with the new order. He may or may not take some strategic remedial steps so as to obviate the need for future action. Fourthly, the Council might access whether or not steps have been taken by the Applicant, which may or may not result in the order remaining in place, being satisfied, being varied or being revoked. Fifthly, if all else fails, the Applicant might then commence new Class 2 proceedings, by appealing under s 180 against the new s 124 order. Then, and only then, would the Court find itself with jurisdiction with respect to the replacement or new s 124 order. 5. Accordingly, there is no basis by which the Court might accede to the Applicant's submissions. Therefore, as stated in [34] above, the Court concluded that it must dismiss the proceedings. Orders were made to that effect at the conclusion of the hearing. ORDERS 1. The Court made the following orders at the conclusion of the hearing: 1. The proceedings 2018/85414, commenced by the Applicant Saviour Laurence Cachia, be dismissed. 2. The hearing date of 27 August 2018 be vacated. 3. The Respondent Parramatta City Council pay the Applicant the sum of $937.00, being the Applicant's Court filing fees, such sum to be paid within 14 days of these orders. ********** 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 May 2018