Kristoffersen v Department of Industry

[2018] NSWCATAD 190

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Kristoffersen v Department of Industry [2018] NSWCATAD 190
Hearing dates:	On papers after 14 August 2018
Date of orders:	20 August 2018
Decision date:	20 August 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President
Decision:	The application is dismissed.
Catchwords:	ADMINISTRATIVE LAW – whether Tribunal has jurisdiction to review decision that applicant cannot purchase roads that do not adjoin his property
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW), s 9 Civil and Administrative Tribunal Act 2013 (NSW), s 29(2)(b), s 30, s 50 Crown Land Management Act 2016 (NSW), 13.5(k) Crown Land Management Regulation 2018 (NSW) Crown Lands Act 1989 (NSW), s 34(1)
Category:	Principal judgment
Parties:	Kurt Kristoffersen (Applicant) Department of Industry (Respondent)
Representation:	Applicant (self-represented) J Ahern (NSW Department of Industry Legal Branch) (Respondent)
File Number(s):	2018/00213052
Publication restriction:	Nil

REASONS FOR DECISION

1. Mr Kristoffersen applied to the Tribunal for a review of a decision made by the Department of Industry. He provided a letter dated 14 June 2018 from the Crown Lands & Water Division of the Department. Based on that letter I understand that his application relates to a policy known as the Crown Road Disposal Program. Mr Kristoffersen applied to the Department for a number of sections of the Crown road network to be closed. He was told in the letter of 14 June 2018 that his property does not adjoin the Crown road south of Lot 47. For that reason, “the closure and sale of a length of that road is proceeding with the adjoining landowner conditional upon an easement to maintain access to multiple properties including your Lot 39”. Mr Kristoffersen was assured that he would be legally entitled to use the road after it becomes freehold land.

2. The question is whether the Tribunal has jurisdiction to review any of the decisions communicated to Mr Kristoffersen in the letter of 14 June 2018. The Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the Tribunal’s jurisdiction. One of those jurisdictions is the “administrative review jurisdiction”: NCAT Act, s 29(2)(b). The Tribunal has administrative review jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW): NCAT Act, s 30 and Administrative Decisions Review Act, s 9.

3. Mr Kristoffersen identified s 48 of the Administrative Decisions Review Act as being the relevant enabling legislation. That provision is headed “notice of decision and review rights to be given by administrators”. The Administrative Decisions Review Act does not confer jurisdiction on the Tribunal. It merely identifies the legal principles that apply when the Tribunal has administrative review jurisdiction in relation to a particular decision.

4. Under s 34(1) of the Crown Lands Act 1989 (NSW) (repealed) the Minister had certain powers in relation to Crown Land. That legislation did not give the Tribunal power to review any of the decisions communicated by the Department in the letter of 14 June 2018. That letter mentions s 42 of the Roads Act1993 (NSW). There are no provisions in that legislation giving the Tribunal power to review the decision. Section 42 of the Roads Act refers to the Crown Land Management Act 2016 (NSW). Section 13.5(k) of that legislation gives the Governor power to make regulations with respect to “the conferral of jurisdiction on the Civil and Administrative Tribunal to hear and determine” specified decisions identified in the Regulation. However, no applicable regulations have been made: see Crown Land Management Regulation 2018 (NSW).

5. No enabling legislation has been brought to my attention, nor was I able to identify any enabling legislation, that gives the Tribunal power to review any of the decisions identified in the Department’s letter of 14 June 2018. In those circumstances, the application is dismissed.

6. In accordance with orders made on 31 July 2018, these proceedings were heard ‘on the papers’ in accordance with s 50 of the NCAT Act.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 20 August 2018