Carson v Auburn Council

[2000] NSWLEC 152

Land and Environment Court

of New South Wales

CITATION:	Carson v Auburn Council [2000] NSWLEC 152
PARTIES:	APPLICANT: Carson RESPONDENT: Auburn Council
FILE NUMBER(S):	T00018 of 2000
CORAM:	Bignold J
KEY ISSUES:	Practice & Procedure :- Leave to appeal out of time against s 124 order. Whether Court has power to extend time for appeal.
LEGISLATION CITED:	Local Government Act 1993, s 180(3) Land and Environment Court Rules 1996, Pt 17 r 1
CASES CITED:
DATES OF HEARING:	12/07/00
DATE OF JUDGMENT:	07/18/2000
LEGAL REPRESENTATIVES:	APPLICANT: Mr Carson in person SOLICITORS N/A RESPONDENT: Mr T J O'Connor SOLICITORS Houston Dearn O'Connor

JUDGMENT:

IN THE LAND AND Matter No . T00018 of 2000

ENVIRONMENT COURT OF Coram : Bignold J.

NEW SOUTH WALES 18 July 2000

A CARSON

Applicant

v

AUBURN COUNCIL

Respondent

JUDGMENT

Bignold J:

1. By Notice of Motion filed 6 July 2000, the Applicant seeks leave to appeal out of time against an Order served on him under the Local Government Act 1993, s 124.

2. The Order which was dated 25 May 2000 required the Applicant “as owner of premises known as No 36B Regent Street, Regents Park”, to carry out “within 14 days from the date of this Order” the following work:

Remove all overgrown vegetation and rubbish and maintain the property in a tidy condition.

3. The Council has appeared to oppose the Motion. It contends that the Court has no power to grant any extension of time because the time for appeal is absolutely fixed by the Local Government 1993 s 180(3) , namely “ 28 days after the service of the order ” and that Act contains no provision for any extension of that time. (The Motion has been debated on the basis that by the time the Applicant filed any process with the Court on 6 July 2000 , the 28 days for appeal had already expired. Hence, the need for the Applicant to seek the extension of time.)

4. The Council submits that because the Local Government Act 1993 s 180(3) expressly stipulates the time within which an appeal to this Court against an order “must be made”, the general provision contained in the Rule of Court Pt 17 r 1(1) allowing for the commencement of proceedings “at any time within 60 days after the right of appeal….first arises” does not apply: vide Pt 17 r 1(2) of the Rules of Court.

5. In my judgment, there is no answer to the Council’s objection to the competence of the Motion, or more particularly, to its submission that this Court is not vested with any power to extend the time for appeal that is stipulated in the Local Government Act 1993, s 180(3).

6. Accordingly, I am driven to conclude that the Court lacks the power to grant the relief claimed in the Applicant’s Notice of Motion, which on that account must be dismissed.

7. In dismissing the Motion, I should make it clear to the Applicant (who appears in person) that because of the Council’s opposition to the competency of the Motion, I have not been called upon to consider the merits of his case for an extension of time to appeal or indeed the merits of his case that the 14 day time for compliance stipulated in the Council’s Order should be extended to give him the opportunity to comply with the order.

8. The Applicant has informed the Court that he had not been able to comply with the Council’s Order because of his plight, involving his and his family’s health and his lack of financial means because he is presently unemployed.

9. Since the Court is not entitled, because of the absence of jurisdiction, to enter upon a consideration of the Applicant’s plight, it would appear to me to be entirely appropriate for the Council’s Solicitor to bring these matters to the attention of the Council in its consideration of any enforcement action against the Applicant in default of his apparent compliance with the Order. (It appears that the Council has already issued a penalty notice to the Applicant for failure to comply with its s 124 Order.)

10. For all of the foregoing reasons, I must hold that the Notice of Motion is not competent, and the Court has no option but to dismiss it.

11. Accordingly, I order that the Notice of Motion be dismissed as being incompetent and beyond the Court’s jurisdiction.