GRIMMOND and CITY OF BUNBURY - [2023] WASAT 89

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION:   GRIMMOND and CITY OF BUNBURY [2023] WASAT 89
MEMBER:   DR S WILLEY, SENIOR MEMBER
HEARD:   13 SEPTEMBER 2023
DELIVERED          :   26 SEPTEMBER 2023
FILE NO/S:   DR 121 of 2023
BETWEEN:   DEAN WILLIAM GRIMMOND
First Applicant
HOLLY MAREE NAPRET
Second Applicant
AND
CITY OF BUNBURY
Respondent

Catchwords:

Jurisdiction - Practice and procedure - Strike out application - Local law - Regulations - Proceedings misconceived - Lack of statutory basis - Costs

Legislation:

City of Bunbury Local Government and Public Property Local Law 2003
City of Bunbury Private Property Amendment Local Law 2007, Pt 2, Pt 11, cl2.1(2)(a)
Dividing Fences Act 1961 (WA), s 5, s 24
Interpretation Act 1984 (WA)
Local Government Act 1995 (WA), Pt 3, Pt 9, Div 1, Div 3, Sch 3.1, s 3.25, s 3.25(1), s3.25(2), s 3.25(5), s 9.1, s 9.2, s 9.4, s 9.5, s 9.7, s 9.7(2)
State Administrative Tribunal Act 2004 (WA), s47(2)

Result:

Application struck out as misconceived

Category: B

Representation:

Counsel:

First Applicant	:	In person
Second Applicant	:	In person
Respondent	:	Mr Tim Houweling

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	Cornerstone Legal

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This is an application for review made under s 9.7(2) of the Local Government Act 1995 (WA) (LG Act).
At the heart of the dispute is that the City of Bunbury (City or Respondent) issued a 'notice of breach' (Notice) on Dr Dean Grimmond and Ms Holly Napret (together the Applicants) pursuant to the City of Bunbury - Local Government and Public Property Local Law - Private Property Local Law 2003/City of Bunbury Private Property Amendment Local Law 2007 (Local Law).
The Notice relates to the Applicants' land at No 118A Mangles Street, South Bunbury (Land) and requires the Applicants to construct a 'sufficient fence' between the Land and an adjoining lot (120 Mangles Street). The application to the Tribunal seeks review of the decision to issue the Notice.
These reasons deal with the question of whether the Tribunal has jurisdiction to entertain the review.
For the reasons that follow, I find that the Tribunal does not have jurisdiction to review the Notice.

Background

I make the following factual findings.
The Applicants own the Land. In the background of this matter, they have a claim of adverse possession (possessory title) over a portion of adjoining land, being 120 Mangles Street, arising from a dividing fence that was, apparently, wrongly positioned in the 1960s. The claim for adverse possession (for approximately 9m² of 120 Mangles Street) has not yet been determined.
On 22 May 2023, the City issued the Notice under the Local Law. The Notice requires the Applicants to install a 'sufficient fence' between the Land and 120 Mangles Street (of 1800 millimetres high measured from the top of a retaining wall) within 30 days. The existing fence is not, in the City's view, a sufficient fence for the purposes of the Local Law.
A 'sufficient fence' means a fence as described in Pt 2 of the Local Law. Clause 2.1(2)(a) of the Local Law provides that in a residential context such as this, a 'sufficient fence' is a 'dividing fence or a boundary fence constructed and maintained' in accordance with the Second Schedule. There are six different sets of standards for a sufficient fence on a residential lot. The details of these are not relevant for present purposes.
The Notice sets out that the Applicants could seek review of the decision to issue the Notice in the Tribunal.
The Applicants do not wish to erect a 'sufficient fence' on the current boundary between the Land and 120 Mangles Street for three reasons. The first is that it may result in costs being thrown away as the fence may need to be relocated once their adverse possession claim is determined. The second, it will, in effect, cut them off from the land over which they claim adverse possession. The third is that in their view, the dividing fence should be a cost shared with 120 Mangles Street.
Having received the application for review, the City now presses a jurisdictional point to the effect that the Tribunal does not have jurisdiction to review the Notice.

Reviews under the LG Act

Division 1 of Pt 9 of the LG Act deals with objections and review. Section 9.1 provides that Div 1 of Pt 9 applies:
(1)This Division applies when a local government makes a decision under this Act as to whether it will —
(a)grant a person an authorisation under Part 3 or under any local law or regulation that is to operate as if it were a local law; or
(b)renew, vary, or cancel an authorisation that a person has under any of those provisions.
(2)This Division also applies whenever a local government gives a person a notice under section 3.25, and for the purposes of this Division the giving of a notice under that section is to be regarded as the making of a decision.
(3)This Division also applies whenever a local law, or regulation that is to operate as if it were a local law, states that a decision under it is one to which this Division applies and that a person specified in it is an affected person for the purposes of this Division.
Section 9.2 includes the following defined terms:
affected person, in relation to —
(a)a decision to which this Division applies because of subsection (1) or (3) of section 9.1, means a person referred to in that subsection; and
(b)a decision to which this Division applies because of subsection (2) of section 9.1, means —
(i)a person referred to in that subsection; or
(ii)a person made an affected person by section 9.3;
authorisation means a licence, permit, approval, or other means of authorising a person to do anything, other than one that has been excluded by regulations from being an authorisation for the purposes of this definition;
decision means a decision or notice that, in accordance with section 9.1, causes this Division to apply.
Section 9.4 requires that whenever a decision is made that the affected person could consider to be unfavourable, the person making it is to ensure that, as soon as practicable after the decision is made, the affected person is given written reasons for the decision and informed of the person's rights to object against, and apply for a review of, the decision.
Sections 9.5 deals with the lodging of objections and how these are dealt with by the local government.
Section 9.7 then provides a right of review for an affected person if they have not lodged an objection or, if they have, if more than 35 days have elapsed since it was lodged but have not been given notice of how it has been determined.

Respondent's submissions

The Respondent submits that in the circumstances of this case, the decision to issue the Notice was not a reviewable decision for the purposes of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
That is to say, the Applicants are not an 'affected person' for the purposes of Div 1 of Pt 9 of the LG Act because the Notice was not the 'grant, renewal, variation, or cancellation of an authorisation'.
Furthermore, the Local Law does not provide for a right of review in the Tribunal of a decision to issue a Notice under Pt 11.

Applicants' submissions

The Applicants submit that the Tribunal has jurisdiction to review the Notice. They submit that they have, in effect, been given a notice under Pt 3, Div 3, s 3.25 of the LG Act.
The Applicants highlight that the heading of Div 1 to Sch 3.1 to the LG Act states the things that a notice may require to be done suggests the list is not exhaustive and that, in any event, s 3.25(2) provides that Sch 3.1 can be amended by regulations.
They argue that the Local Law is a form of regulation and thus the Notice is, in effect, a notice under s 3.25 of the LG Act. A right of review for persons who are given a notice under s 3.25(1) is provided by s 3.25(5) of the LG Act.

Disposition

Before I turn to address the jurisdictional question that is posed by the City, I must say that it is plain that the Notice does not comply with Pt 11 of the Local Law. This is because the Notice does not specify the provision of the Local Law which is said to have been breached nor does it specify the particulars of the breach.
However, that is not the question that is before me.
For the following reasons, I find that the Tribunal does not have jurisdiction to review a notice of breach issued under the Local Law.
The Tribunal is a creature of statute, and its review jurisdiction is, in general terms, only enlivened when express words are included in an enabling Act providing a right of review. The LG Act does provide rights of review, but not in these circumstances.
The rights of review provided by the Div 1 of Pt 9 of the LG Act are as follows: `

Persons granted or otherwise adversely affected by a decision in relation to an authorisation under a local law or a regulation that is to operate as if it were a local law.

The Notice is not a form of authorisation under a local law.
As the Tribunal explained in Byrne v Shire of Broome,[1] an authorisation is the granting of a right for a person to do something who did not otherwise possess that authority. The Notice is not a form of authorisation.

Persons given a notice under s 3.25

[1] Byrne v Shire of Broome [2006] WASAT 376; (2006) 48 SR (WA) 161 [12].

Section 3.25 does not apply here. The Notice was not given under s 3.25 of the LG Act.
Section 3.25(1) provides that a local government may give an owner or occupier of land a notice in writing requiring that person to do anything specified in Sch 3.1 to the LG Act. Schedule 3.1 is directed to notices to, for example, prevent water dripping or running from a building or to put in a place a number to indicate an address. It does not address the placement of dividing fences which are instead dealt with by the Dividing Fences Act 1961 (WA) (DFA Act). The Local Law operates to prescribe what is regarded as a ‘sufficient [dividing] fence’ within the City for the purposes of the DFA Act.[2]
[2] Dividing Fences Act 1961 (WA), s 24 read with s 5.
While the Applicants rely on s 3.25(2), which provides that regulations may amend Sch 3.1 to the LG Act, under the Interpretation Act 1984 (WA), a 'regulation' does not include a 'local law'.
Furthermore, a regulation made under the LG Act, that was to affect an amendment to Sch 3.1 to the LG Act would say as much. No such regulations have been made.
Contrary to the Applicants' submissions, the Local Law does not take effect as an amendment to Sch 3.1 to the LG Act.

Review rights provided by local laws

A local law may provide a right of review to the Tribunal. However, in this instance, the Local Law does not.

Conclusion

In reaching this decision, I am mindful of the comments of the Court of Appeal in Polo Enterprises Australia Pty Ltd v Shire of Broome,[3] that the LG Act is intended to result in greater accountability of local governments to their communities.
[3] Polo Enterprises Australia Pty Ltd v Shire of Broome [2015] WASCA 201; (2015) 49 WAR 134 [60].
Even so, I cannot manufacture a right of review that is clearly not provided for in an enabling Act. As the Tribunal explained in Citygate Properties and City of Bunbury (Citygate Properties):[4]
… An application for review under s 9.7 of the LG Act can only be lawfully made in one of the circumstances contemplated by s 9.1 of that Act. The present application for review does not purport to be against a refusal to grant an authorisation under Pt 3 of the LG Act, a local law or a regulation that is to operate as if it were a local law. It does not purport to be against a decision to cancel an authorisation under any of those provisions.
[4] Citygate Properties and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246 [18] (Citygate Properties
The application must therefore be struck out as misconceived pursuant to s 47(2) of the SAT Act.

Costs

At the hearing of this application, I asked counsel for the Respondent, Mr Tim Houweling, whether, if this review was struck out on the basis of jurisdiction, there is any reason why the Respondent should not pay the Applicants' costs of its application fee having regard to the terms of the Notice. Counsel queried whether I had jurisdiction to make a costs order against the City in circumstances where the Tribunal lacked jurisdiction to deal with the substantive case.
As I explained to counsel, from near its inception, the Tribunal has taken the view that it can make costs orders in such circumstances. In Citygate Properties, Senior Member Parry (as he then was) stated:[5]
[5] Citygate Properties [26], [28], [29], [32], [33], [34] and [35].
26I reject the respondent's first submission. In my opinion the Tribunal has power to make a costs order against the respondent under either or both of s 47(2) of the Tribunal Act, which permits the Tribunal to "make any appropriate orders" where proceedings are struck out, and s 87(2) of the Tribunal Act.
…
28It is apparent from the terms of s 87(1) of the Tribunal Act that the starting proposition in this Tribunal is that parties bear their own costs in a proceeding. However, s 87(2) clearly confers a discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party unless otherwise specified in an enabling Act. Even in circumstances where the Tribunal has determined to strike out proceedings as misconceived, the proceedings remain pending before the Tribunal until they are disposed of by order. Until that time, the applicant and the respondent are parties to a proceeding of the Tribunal. The Tribunal, therefore, has power under s 87(2) of the Tribunal Act to order the respondent in the present case to pay the costs of the applicant.
29In Oshlack v Richmond River Council (1998) 193 CLR 72 at 80 81[40]; 96 LGERA 173 at 186 187, Gaudron and Gummow JJ held in the High Court of Australia as follows in relation to the scope of a discretion to award costs:
There is no absolute rule with respect to the exercise of the power conferred by a provision such as section 69 of the [Land and Environment Court Act 1979 (NSW)] that, in the absence of disentitling conduct, a successful party is to be compensated by the unsuccessful party. Nor is there any rule that there is no jurisdiction to order a successful party to bear the costs of the unsuccessful party."
(See also Everett v City of Armadale (2002) 29 SR (WA) 106 at 108 [13].)
…
32I have found that there is relevantly no statutory basis for these proceedings. The matter that is the subject of these proceedings does not, therefore, come within the Tribunal's review jurisdiction or indeed within any part of the Tribunal's jurisdiction. Section 87(4) of the Tribunal Act is, therefore, irrelevant. I note, however, that even if s 87(4) were relevant, the two prescribed considerations do not limit the range of relevant considerations as to costs.
33I accept the applicant's submission that the respondent "invited" the applicant to appeal its decision. Not only did it, as the relevant regulatory authority, advise the applicant that it had an appeal right, but it chose to provide the applicant with what it asserted was the prescribed appeal form. Perhaps most significantly, it advised the applicant that failure to act on the notice was a criminal offence. In these circumstances, the respondent not only invited the appeal, but arguably induced it.
34On the facts of this case, it is appropriate, in my opinion, for the Tribunal's discretion in relation to costs under s 87(2) of the Tribunal Act to be exercised so as to compensate the applicant for having commenced and prosecuted these proceedings which were futile. The respondent invited, and arguably induced, the commencement of proceedings which were misconceived.
35The respondent is the responsible regulatory authority which has specified powers under s 3.25 of the LG Act to give a person a notice, non-compliance with which constitutes a criminal offence. It should reasonably know the circumstances in which a right to seek a review of a decision made by it exists. In this case, it erroneously advised the applicant that it had an appeal right against the decision and provided the appeal form to it.
With respect, I agree with the analysis from Citygate Properties. Here, it is the Tribunal that raised the question of jurisdiction at the first directions hearing on 21 July 2023. At the directions hearing, counsel for the Respondent advised he had only turned his mind to the question of jurisdiction that morning but did consider that ‘there’s a jurisdictional problem’.[6]
[6] ts 2, 21 July 2023.
Ultimately, the Respondent decided to press the jurisdictional point which the Tribunal had raised. It was entirely appropriate for it to do so.
In any event, and regardless of any application from the Respondent, in Citta Hobart Pty Ltd v Cawthorn,[7] the High Court recently reiterated that the Tribunal has a duty to ensure that a matter before it 'is and remains within its jurisdiction to hear and determine'.
[7] Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 96 ALJR 476 [17] (Kiefel CJ, Gageler, Keane, Gordon, Stewart and Gleeson JJ).
However, for the reasons explained in Citygate Properties, the jurisdictional point that is now so apparent should have been plain to the City before the Notice was issued.
Non-compliance with the Notice is a criminal offence. My point being that a decision to issue a Notice is a significant step by a local government which has a range of consequences for those affected. As the responsible regulatory authority for the Local Law, it should reasonably know the circumstances in which a right of review exists. That is especially so given the Respondent’s history with Citygate Properties.
On 20 September 2023, the City advised the Tribunal that it agreed it should pay the Applicants’ application fee of $635. The City’s position in this regard is entirely appropriate.
However, following the hearing of this preliminary issue, the Applicants’ filed an application for its costs in the amount of $1,609 in relation to their legal costs.
While I will make an award for costs for the Tribunal’s application fee, I decline to make an award for costs for any legal fees incurred by the Applicants for the reasons below.
The Applicants’ solicitor never appeared in the Tribunal; nor was a notice of representation ever filed. In any event, the jurisdictional point that was obvious to the Tribunal and to the Respondent at the outset of these proceedings, should have also been apparent to the Applicants’ legal advisors. Beyond that, the solicitor’s invoices that have been provided to the Tribunal are not itemised and refer to not only the Tribunal proceedings, but also a prosecution notice as well as the adverse possession claim.

Orders

The Tribunal orders:
1.The application for review is struck out as misconceived pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA).
2.The Respondent is to pay the Applicants’ costs in the amount of $635 within 28 days of the date of this order.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
26 SEPTEMBER 2023