McCudden v Cowra Shire Council

Case •

[2016] NSWLEC 14

•

11 March 2016

No judgment structure available for this case.

Land and Environment Court


New South Wales

Medium Neutral Citation: McCudden v Cowra Shire Council [2016] NSWLEC 14
Hearing dates:5 February 2016
Date of orders: 11 March 2016
Decision date: 11 March 2016
Jurisdiction:Class 1
Before: Craig J
Decision:

Refer to [151]

Catchwords: LOCAL GOVERNMENT - order under s 124 of the Local Government Act 1993 limiting the number of cats to be kept on premises - validity of order raised as a separate and preliminary issue in an appeal under s 180(1) of the Local Government Act - sufficiency of reasons stated in or accompanying the order as required by s 136 of the Local Government Act - whether failure to provide reasons meeting the requirements of the section results in invalidity of the order - whether the issue of validity for want of reasons raised in an appeal under s 180 denies the Court power to hear the appeal on merit – whether the Court can make any order that it is authorised to make by s 180(4) of the Local Government Act.
Legislation Cited: Companion Animals Act 1998 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Interpretation Act 1987 (NSW)
Land and Environment Court Act 1979 (NSW)
Local Government Act 1993 (NSW)
Local Government (General) Regulation 2005
Protection of the Environment Administration Act 1991(NSW)
Protection of the Environment Operations Act 1997 (NSW)
Prevention of Cruelty to Animals Act 1979 (NSW)
Threatened Species Conservation Act 1995 (NSW)
Uniform Civil Procedure Rules 2005
Category:Procedural and other rulings
Parties: Richard William McCudden (Applicant)
Cowra Shire Council (Respondent)
Representation:

Counsel:
P Clay SC with N Hammond (Applicant)
R Lancaster SC with C Arnott (Respondent)

      Solicitors:
Crennan Legal (Applicant)
Bradley Allen Love Lawyers (Respondent)
File Number(s):20774 of 2015

Judgment

  1. Richard McCudden is the occupier of land in Conimbla Road Cowra (the Land). For more than four years, Mr McCudden has conducted a shelter for abandoned or unwanted cats on the Land. The shelter, known as “Camp Kitty”, is said to be conducted on a non-commercial basis.

  2. Camp Kitty does not enjoy the support of those occupying land in the vicinity. As long ago as January 2012 Cowra Shire Council (the Council), in whose local government area the Land is located, commenced receiving complaints concerning the manner in which the Land was being used. Mr McCudden was contacted by the Council, relaying those concerns, resulting in discussions, notices and reports concerning Camp Kitty since February 2014. As a result of either inspection by Council officers or report from Mr McCudden, the number of cats reported to have been kept on the Land between July 2014 and May 2015 has ranged between 174 and 200.

  3. On 6 August 2015, the Council gave an order to Mr McCudden under s 124 of the Local Government Act 1993 (NSW). I will shortly refer to the terms of that order but for present purposes it is sufficient to record that it required that no more than 33 cats be kept on the Land at any one time. The order also sought to constrain the manner in which cats are to be kept on the Land.

  4. Mr McCudden appealed to this Court against the Council’s order pursuant to s 180 of the Local Government Act. After filing his appeal, he sought, by notice of motion, the determination of separate questions, the essential thrust of which is to challenge the validity of the order given by the Council. Invalidity is alleged on the basis that the reason or reasons given for the making of the order are either insufficient in law, properly to constitute reasons, or is a reason or are reasons that cannot, in law, found the giving of the order.

  5. On 10 December 2015, Biscoe J ordered that four questions be determined preliminary to the determination of any other issue or issues in the appeal. His Honour’s order was made pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005. It is the determination of the questions so ordered to which this judgment is directed.

Background

  1. The evidence before me for the purpose of answering the preliminary questions is limited. The brief background that I have given is taken from the Statement of Facts and Contentions filed in the appeal on behalf of the Council. That was filed as part of the ordinary process in preparing the appeal for hearing, given that such appeal falls within Class 2 of the Court’s jurisdiction (s 18(a) of the Land and Environment Court Act 1979 (NSW) (the Court Act)). The Council’s Statement of Facts and Contentions was tendered by it for the purpose of arguing the present questions. Mr McCudden objected to the tender on the ground that the document was irrelevant.

  2. As is required by the Court’s Practice Note, Mr McCudden was required to file a response to the Council’s Statements of Facts and Contentions if any fact so stated was in contest. He had not done so. Notwithstanding that failure, I am prepared to accept the Statement only in so far as it contains material necessary to provide the general context in which the Council’s order was given, together with those facts necessary to understand the content of the order in so far as those facts are disclosed in the Statement. While counsel for Mr McCudden stated that no admission was made as to the facts contained in that Statement, he accepted that at the time at which the order was given “a large number of cats” were being kept on the Land and also acknowledged the three areas on the Land in which those cats were accommodated, being areas to which reference is made in the Council’s order.

  3. The course of dealing between Mr McCudden and the Council concerning the conduct of Camp Kitty had proceeded over a period of 18 months prior to August 2015. That course of dealing included inspections of the land by Council officers, a meeting between Mr McCudden and Council staff concerning the use of the Land, as well as the issue of at least one notice to Mr McCudden under s 96 of the Protection of the Environment Operations Act 1997 (NSW). The notice required the provision of an odour assessment report and a water analysis report. An odour assessment report was received by the Council on or about 20 May 2015. The evidence does not disclose the content of that report.

  4. It does not appear to be in contest that there are three principal areas on the Land in which cats are being kept. The areas so described are:

  1. an area of about 6,300m² that is fenced and within which is located a shed having a concrete slab floor with an area of approximately 100m²;

  2. a three bedroom dwelling house and its immediate curtilage; and

  3. a secondary enclosed outdoor area of approximately 225m² within which two small colorbond sheds have been constructed.

  1. On 2 July 2015 the Council gave notice to Mr McCudden of its intention to issue an order in the form of Order No 18 of the Table to s 124 of the Local Government Act. The terms of the proposed order were stated in the notice, indicating that no more than 33 cats were to be kept on the Land at any one time and otherwise stating the manner in which cats were to be kept. In a written submission dated 6 July 2015 Mr McCudden responded to that notice, concluding that the proposed order not be given to him. I do not understand the fact that such submission had been received or its conclusion to be in contest. However, the submission itself has not been tendered in evidence before me.

  2. As I have already recorded, on 6 August 2015 the Council gave the order that is the subject of the present appeal. Because Mr McCudden relies upon the terms of the order to found his submissions in response to the four questions to be answered, it will be necessary to set out the order in full. The order was attached to a letter from the Council of the same date in which the Council referred to its notice of intention to issue the order and to Mr McCudden’s reply dated 6 July 2015. The covering letter states that the matters raised in the reply “had been considered” but the determination made to issue the order as proposed in its earlier notice. The order itself is also in the form of a letter dated 6 August 2015, addressed to Mr McCudden. It states as follows:

“ORDER UNDER ITEM 18 OF THE TABLE TO SECTION 124 OF THE LOCAL GOVERNMENT ACT 1993

The Cowra Shire Council orders you as the occupier of the premises known as Lot 3 DP 857061 – 230 Conimbla Road, Cowra (the Premises) to do such things and within the time period as specified in Schedule A.

The reason why the Order has been issued to you is described in Schedule A.

[Signature and title of the Council Director of Environmental Services]

COWRA SHIRE COUNCIL

SCHEDULE A

1.   Reason why this order has been given:

a.   you are the occupier of the Premises;

b.   cats are being kept on the Premises in inappropriate numbers and inappropriate conditions; and

c.   the welfare of the cats is being significantly compromised as a consequence of:

i.   the cats being kept in groups that are excessively large and therefore socially dysfunctional,

ii.   the cats not having appropriate space and adequate resources to display normal and preferred behaviours, and

iii.   insufficient human resources (carers) being available to properly care for the cats.

2.   Things required to be done:

a.   not keep more than 33 cats at the Premises at any one time;

b.   confine the cats to social groups of between 4 and 6 cats;

c.   prevent the cats in each social group from interacting with each other;

d.   ensure that:

i.   no more than 2 social groups of cats are kept in the house on the Premises;

ii.   no more than 3 social groups of cats are kept in the existing shed on the Premises;

iii.   no more than 1 social group of no more than 3 cats is kept in the small enclosure at the rear of the Premises

e.   provide adequate personal space for each cat in the area in which it is usually kept by:

i.   providing each cat with a separate site for feeding, resting, hiding and elimination activities;

ii.   providing one extra space for each of those activities in each group of cats; and

iii.   providing at least one vertical space for each group of cats.

f.   separately house any cats which appear to be distressed by being within a social group

g.   ensure that each cat is given a minimum of 15 minutes individual care every day

3.   Period within which the terms of the order are to be complied with:

You are required to comply with the order within twenty eight (28) days from the service of this order.

4.   Right of Appeal:

You may appeal against this Order or part of the Order in the Land and Environment Court. The appeal must be made within twenty eight (28) days after the service of this Order.”

Statutory provisions

  1. Section 124 of the Local Government Act relevantly provides:

“124   Orders

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.

Note. This section does not affect the power of a council to give an order (or a notice or direction) under the authority of another Act.

For example, some of those Acts and the orders (or notices or directions) that may be given include:

Food Act 2003 (by delegation) improvement notice or prohibition order

Protection of the Environment

Operations Act 1997   environment protection notices

Public Health Act 2010 direction concerning maintenance or use of certain regulated systems

Roads Act 1993 order preventing the passage of traffic along a road or tollway

order for the removal of an obstruction or encroachment on a road

Swimming Pools Act 1992 order requiring owner of swimming pool to bring it into compliance with the Act

A person who fails to comply with an order is guilty of an offence – see sec 628.”

  1. Following the opening provisions of s 124 the heading “Table” appears followed by a further heading “Orders”. There follows a series of headings beneath each of which are three columns directed to the subject matter of an order that may be made, the circumstances enlivening the power to give the order and the person to whom the order can be given. The heading that precedes Order No 18, the column description and the terms of Order 18 itself are as follows:

“Orders requiring that premises be used or not used in specified ways

Column 1

To do what?

Column 2

In what circumstances?

Column 3

To whom?

…

…

…

18 Not to keep birds or animals on premises, other than of such kinds, in such numbers or in such manner as specified in the order

Birds or animals kept on premises are:

(a) in the case of any premises (whether or not in a catchment district) – of an inappropriate kind or number or are kept inappropriately, or

(b) in the case of premises in a catchment district – birds or animals (being birds or animals) that are suffering from a disease which is communicable to man or to other birds or animals) or pigs.”

Occupier of premises

  1. Division 2 of Pt 3 of the Local Government (General) Regulation 2005 (the Regulation) further addresses orders requiring “that premises be used or not used in specified ways”. Clauses 91 and 92 within that Division provide:

“91   Keeping of birds or animals

Without limiting Order No 18, failure to comply with relevant standards or requirements set or made by or under the Act constitutes a circumstance that is taken to be included in the circumstances specified in Column 2 of the Table to Section 124 of the Act as circumstances in which Order No 18 may be made.

92.   Relevant standards for keeping of birds or animals

For the purpose of Order No 18, the standards for the keeping of birds or animals set out in Part 5 of Schedule 2 are relevant standards referred to in Column 2 of the Table to Section 124 of the Act.”

  1. Part 5 of Sch 2 to the Regulation addresses standards for the keeping of “swine”, poultry, horses and cattle. It does not impose any standards for the keeping of cats.

  2. No challenge is made to the order given to Mr McCudden by the Council on the basis that the order does not meet the requirements of Order No 18 under s 124. The order is directed to the maximum number of cats that may be kept on the Land (Column 1); the circumstances that are said to exist for the giving of the order are stated, namely that cats are being kept in inappropriate numbers and in inappropriate conditions (Column 2) and Mr McCudden is identified as being the occupier of the Land (Column 3).

  3. Section 124 of the Local Government Act is found in Division 1 of Pt 2 of Ch 7 of that Act. Division 2 of the same Part identifies procedures to be observed before orders may be given. Relevantly, s 132 requires that notice of a proposed order be given to the person to whom the order is intended to be directed. Observance of that requirement is reflected in the notice given to Mr McCudden on 2 July 2015. No issue arises as to compliance with s 132.

  4. Fundamental to the position taken by Mr McCudden in responding to the questions for preliminary determination are the provisions of s 136 of the Local Government Act. That section provides:

“136   Reasons for orders to be given

(1)   A council must give the person to whom an order is directed the reasons for the order.

(2)   The reasons may be given in the order or in a separate instrument.

(3)   The reasons must be given when the order is given, except in a case of urgency. In a case of urgency, the reasons may be given the next working day.”

  1. The final provision of the Local Government Act relevant to be noticed is s 180. As I have earlier recorded, that was the section by reference to which the present appeal was instituted. The section provides:

“180   Appeals concerning orders

(1)   A person on whom an order is served may appeal against the order to the Land and Environment Court.

(2)   (Repealed)

(3)   The appeal must be made within 28 days after the service of the order on the person or, if an order is given under section 141, within 28 days after the service of the order given under section 141 on the person. The person may make an appeal within the later period whether or not the person has made an appeal within the earlier period.

(4)   On hearing an appeal, the Court may:

(a)   revoke the order, or

(b)   modify the order, or

(c)   substitute for the order any other order that the council could have made, or

(d)   find that the order is sufficiently complied with, or

(e)   make such order with respect to compliance with the order as the Court thinks fit, or

(f)   make any other order with respect to the order as the Court thinks fit.

(5) This section does not apply in relation to order No 22A in the Table to section 124.”

  1. By his Class 2 application commencing the present appeal, Mr McCudden seeks an order that the order given by the Council on 6 August 2015 be revoked. No doubt, the order sought is intended to reflect the power given to the Court on hearing the appeal by s 180(4)(a).

Separate questions

  1. The questions that were the subject of the order for separate determination made by Biscoe J, are:

“(1)   Whether on the proper construction of the Order given by Cowra Shire Council to the Applicant dated 6 August 2015 (Order), paragraph 1(b) is limited to the reasons set out in paragraph 1(c)?

(2)   If the answer to question (1) is yes (ie paragraph 1(b) is limited by paragraph 1(c)):

(a) whether the reasons given in paragraph 1(c) are relevant considerations to be taken into account in deciding whether to give an order under Item 18 of the Table to s 124 of the Local Government Act 1993 (LG Act); and

(b) whether there was power to issue the Order under s 124 of the LG Act?

(3)   If the answer to question (1) is “no” (ie paragraph 1(b) is not limited to paragraph 1(c)):

(a)   in determining whether or not the Order is invalid because of inadequacy of reasons whether the Respondent can lead and rely upon evidence; and

(b)   if the answer to question 3(a) is “no”, whether the Order is invalid because of inadequacy of reasons.

(4) If the Order is invalid, whether the Court has power to make an order under s 180(4) of the LG Act or s 39(2) of the Land and Environment Court Act 1979 and, in particular, whether it has the power to modify the Order or substitute the Order or any other order that the Council could have made.”

  1. As will later become apparent, I have concluded that the answers to these questions will not resolve the proceedings, even if those answers be those sought by Mr McCudden. However, given that the questions are the subject of the order for separate determination to which I have earlier referred and also given that each party has addressed those questions, as framed, I will proceed to consider each of them.

Question 1: Upon the proper construction of the order given by the Council to Mr McCudden on 6 August 2015, does paragraph 1c of Schedule A to that order identify the single reason for which the Order was given?

  1. I have rephrased the first question posed for determination as it seems to me that the question, as framed in the order, is not felicitously expressed. The manner in which I have rephrased the question reflects the substance of the question to which the parties have addressed their respective submissions.

  2. Mr McCudden contends that the answer to this question should be “Yes”. He contends that the order served by the Council should be construed by reference to the ordinary canons of construction as they apply to the interpretation of subordinate legislation. According to the applicant’s written submissions, the consequence of so doing is that there is only one reason stated by the Council for the giving of the order, namely that expressed in subparagraph 1c of Schedule A to the order, which is directed to the welfare of cats.

  3. Mr McCudden seeks to support this submission by reference to the following matters:

  1. the “substantive part” of the order, requiring that Mr McCudden do “such things” and within such time “as specified in Schedule A”, is followed by a paragraph stating that the reason (singular) why the order has been given is described in that Schedule;

  1. the singular, reason, is again used in the heading to paragraph 1 of Schedule A;

  2. subparagraph 1a of Schedule A serves only to identify Mr McCudden as the occupier of the lands to which the Order relates, thereby identifying him as the person to whom an order may be given by reference to Column 3 of Order No 18 in the Table to s 124;

  3. subparagraph 1b of Schedule A is no more than a recitation of the circumstances stated in Column 2 of Order No 18 that enliven the power to give the order;

  4. it is only in paragraph 1c of Schedule A to the Council’s Order that a reason is given for asserting, as paragraph 1b does, that the number of cats kept on the premises is inappropriate and that they are kept in inappropriate conditions; and

  5. the things required to be done by reference to paragraph 2 in Schedule A relate only to the welfare of cats, being requirements that are consistent only with the terms of paragraph 1c of the Schedule.

  1. I accept, as does the Council, that the principles of construction applicable to subordinate legislation are appropriately applied to the proper construction of a statutory notice or order of the kind presently being considered. Both parties contend that an order given under s 124 of the Local Government Act falls within the definition of “instrument”, as that term is defined in s 3 of the Interpretation Act 1987 (NSW), just as a development consent granted under s 80 of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) has been held to engage that definition (MLC Properties v Camden Council & Anor (1997) 96 LGERA 52 at 58-59).

  2. The consequence of accepting that the order given by the Council is an “instrument” within the meaning of the Interpretation Act, to be construed as if it was subordinate or delegated legislation, necessitates acceptance that “legislation” of that kind is generally less carefully drafted than “primary legislation”, with the result that the proper construction of such an instrument necessitates greater regard to practical considerations. It is not appropriate to construe such an instrument by subjecting its language and structure to that applicable to the interpretation of an Act of Parliament (Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2015] NSWLEC 101 at [43]-[46]). In that case, Pepper J added at [46]:

“ … where subordinate legislation is open to more than one construction, one of which would be to bring the subordinate legislation within power whereas the other would render it invalid, the first is to be preferred … [citation of authority omitted]”.

  1. The Council submits that the answer to be given to Question 1 should be “No”. It submits that a fair reading of its order as a whole, particularly Schedule A, sufficiently reveals that there is more than one reason expressed for giving the order, being those reasons expressed in both subparagraphs 1b and 1c of the Schedule. Paragraph 1b not only identifies the circumstances enlivening the power to give the order, but also identifies those same circumstances as reasons for the order, being the number of cats kept on the Land and the “inappropriate conditions” under which they are being kept. I accept that submission.

  2. The submission by Mr McCudden that the only reason for the order is that expressed in paragraph 1c of Schedule A is the consequence of construing the order in a way that is inconsistent with the correct principles for so doing. His interpretation fails to accommodate the principle that the order is not to be interpreted as if it was drafted with the precise language expected of a statute. It is not required to be so drafted in order to have legal effect. Practical considerations applying its interpretation militate against seeking to confine it to the expression of a single reason simply because the word “reason” is used in the singular by way of general reference to Schedule A or in the heading to paragraph 1 of that Schedule. Such an approach is the result of a “rigorous examination of its language”, contrary to the principle articulated in Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) at [43].

  3. Given the acceptance by Mr McCudden that the Order should be construed as an “instrument”, engaging the provisions of the Interpretation Act, s 8 of that Act is apt to be applied. The section, expressly applicable to an instrument, relevantly provides:

“ …

(b)   a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form, … ”.

  1. As the Council submitted, a “reason” may have multiple parts. In the present case that appears to be intended, as subparagraphs 1b and 1c of Schedule A are joined by the conjunctive “and”. No tortured use of the language of paragraph 1 is involved when reading “and” as aggregating the matters expressed in subparagraph 1b with those expressed in subparagraph 1c so that the two paragraphs express cumulatively the “reason” for giving the order. Read in that manner, subparagraphs 1b and 1c make apparent “the rationale for the giving of the order” (J & J O’Brien Pty Ltd v South Sydney City Council [2002] NSWCA 259; 121 LGERA 223 at [48]). That is a purpose to be served by complying with s 136.

  2. The decision of the Court of Appeal in O’Brien is important in addressing the submission of Mr McCudden that the statement in subparagraph 1b of Schedule A is “entirely bereft of reasons” (applicant’s written submissions at par 21(h). In O’Brien the appellant had commenced proceedings in Class 4 of this Court’s jurisdiction, challenging the validity of an order given to it by the respondent council. The order required removal of tiling to the façade of a hotel, that tiling having been fixed without the consent of the council when such consent was required. The hotel was within a listed conservation area. The appellant also appealed in Class 2 of this Court’s jurisdiction, bringing a merit appeal against the making of the order. Each proceeding in this Court was dismissed. Appeals from this Court’s orders were then taken to the Court of Appeal, with both appeals being heard together.

  3. The order that was the subject of proceedings in O’Brien was an order given under s 121B of the EPA Act. The statutory regime for giving of such an order is found in Div 2A of Pt 6 of that Act. That regime, including the requirement that reasons be provided for giving the order (s 121L), is substantially the same as that for the giving of orders under Pt 2 of Ch 7 of the Local Government Act. One of the bases of challenge to the validity of the order considered in O’Brien was that no reasons had been given for the order, contrary to the requirement of s 121L of the EPA Act. The latter section is in almost identical terms to s 136 of the Local Government Act. The submission made in O’Brien was that the recitation, in the order, of a failure to comply with a condition of development consent, that being a circumstance enlivening the power to give the order, was not a reason required by s 121L for giving the order.

  4. The leading judgment in O’Brien was delivered by Stein JA (Handley and Giles JJA agreeing). At [47] his Honour rejected the submission that I have last summarised, stating that such submission “ defies the reality of the order.” He identified the necessity for the order to be read as a whole for the purpose of discerning the reasons “for the exercise of the council’s statutory discretions”. His Honour continued at [48]:

“48 In any event, I cannot accept that the circumstances which enliven the power to give an order can never be identical to the reason for exercising the power. I accept [counsel’s] submission that the fact that work is non-complying may be capable of constituting both a basis for and reason for taking action. Common sense dictates this. In this regard, it may be that if Van Haasteren v South Sydney City Council [2000] NSWLEC 168; 109 LGERA 252 is authority for a proposition of general application, it goes too far and should not be accepted without qualification in cases where the statement of the circumstances enlivening the power is sufficient without more to make plain to the recipient the basis and reason for the decision to issue the order.” (Original emphasis).

  1. The decision of this Court in Van Haasteren v South Sydney Council [2000] NSWLEC 168; 109 LGERA 252 involved a challenge to the validity of an order given to the occupier of the land under s 121B of the EPA Act. The order required him to carry out remedial work to reinstate a roof that had been altered without development consent when such consent was required for that work. The thrust of the judgment, as appears at [31] and [34], seems to be that having regard to the statutory scheme of which s 121B is part, the reasons required by s 121L could “never be fulfilled or satisfied simply by stating ‘the circumstances’ that must exist to enliven the discretionary power” (original emphasis at [31]). It is clear that the findings to that effect were those that the Court of Appeal held in O’Brien should not be accepted, at least as a statement of principle.

  2. The decision in O’Brien must be applied in this case. The submission of Mr McCudden that paragraph 1b is devoid of reasons required by s 136 because it does no more than state the circumstances in which the order could be given cannot be accepted. As the decision in this Court in Shannon v Lithgow City Council (1995) 88 LGERA 253 illustrates, the statement in an order given in accordance with Order No 18 under s 124 of the Local Government Act, requiring the occupier of premises “to reduce the number of dogs being kept on the premises to an appropriate number of four (4) dogs”, was, in context, held to indicate sufficient reason for the purpose of s 136. The context considered were the terms of the order as a whole.

  3. Likewise, in the present case, if the order given by the Council is read as a whole, thereby giving effect to the holding in O’Brien, the “things” that the order requires to be done inform or give reason for the requirement that the number of cats are not to exceed 33 on the Land at any one time. The obvious corollary to that requirement is that any number exceeding 33 at any one time will be inappropriate to meet the requirements of the “things” required to be done. So understood, the reference to “inappropriate numbers” in subparagraph 1b offers a reason for the order.

  4. The same process of reasoning may be applied to the second reason expressed in paragraph 1b of Schedule A to the notice, stating that cats were being “kept … in inappropriate conditions”. As the Council submits, that statement in the order does not merely recite the circumstances enlivening the power to give an order in the terms expressed in Column 2 of Order No 18. The expression there used is “kept inappropriately”. The reason why the Council, by its order, considered that the number of cats on Mr McCudden’s premises were being kept in “inappropriate conditions” is again explainable by reference to those things that the Order required to be done. By reading subparagraph 1b with paragraph 2 of Schedule A, it is made tolerably clear why the Council considered that the conditions under which up to 200 cats were being kept were inappropriate.

  5. In short, reading the Council’s Order as a whole and doing so in a manner that has “regard to more practical considerations”, one can adequately discern for the purpose of s 136 of the Local Government Act, reasons why both the numbers of cats and conditions in which they were being kept were inappropriate and how the welfare of cats, reduced in number to 33, could appropriately be addressed. Whether those reasons are sound is relevant only for the purpose of merit determination. The soundness of those reasons must be put aside for the purpose of answering the separate questions.

  6. For the reasons that I have stated there were three reasons given in paragraph 1 of Schedule A to the Council’s Order, namely the two reasons expressed in subparagraph b, together with the reason expressed in subparagraph c.

  7. I propose to answer Question 1 “No”.

Question 2: If the answer to question 1 is “Yes” (ie the reason for giving the Order is that stated in paragraph 1c):

(a) whether the reasons given in paragraph 1c are relevant considerations to be taken into account in deciding whether to give an order under Item 18 of the Table to s 124 of the Local Government Act 1993; and

(b) if irrelevant, whether there was power to give the Order under s 124 of the Local Government Act.

  1. I have again recast the question as originally framed in the order for separate determination. The manner in which I have done so seems to me to reflect the question addressed by the parties.

  2. In light of the answer I propose to give to Question 1, strictly, the present question is not required to be answered. However, as the response to the question was fully argued and against the possibility that my answer to Question 1 is found to be incorrect, I propose to address this question.

  3. On the premise that the only reason given for the Council’s order is directed to the welfare of cats, Mr McCudden submits that the decision to give the order was founded upon an irrelevant consideration, as a consequence of which it is invalid. He submits that having regard to the scope, purpose and object of the power being exercised by the Council, together with “the meaning and context of Order No 18 and s 124, the welfare of cats cannot be a relevant consideration.

  4. In order to inform the general scope and purpose of orders made under s 124, Mr McCudden first refers to the purposes of the Local Government Act expressed in s 7; a council’s charter as expressed in s 8 and the functions of a council identified in ss 21-23 of the Local Government Act.

  5. Reference to s 7 is made for the purpose of identifying a negative. The section states, in broad terms, the purposes of the Local Government Act. The absence of any purpose directed to the welfare of cats, or animals generally, is relied upon in support of the submission.

  6. I accept that the section does not, in terms, identify animal welfare as being a purpose of the Act. However, I observe that s 7(a) does indicate that a purpose of the legislation is to provide “the legal framework” for an “environmentally responsible” system of local government in this State. Also to be noticed is the purpose expressed in s 7(e) to require councils “to have regard to the principles of ecologically sustainable development in carrying out their responsibilities.” The expression “principles of ecologically sustainable development” is defined in the Dictionary to the Local Government Act in a manner that is consistent with other environmental legislation in this State (see 6(2) of the Protection of the Environment Administration Act 1991(NSW)). These provisions, so it seems to me are not to be ignored when addressing Mr McCudden’s submissions.

  7. Section 8 of the Local Government Act is also relied upon by Mr McCudden in two ways. First, he observes that the charter for a council expressed in that section makes no reference to the welfare of animals. Secondly, reference is made to a paragraph in s 8(1), identifying one of the elements of the charter as being:

“●   to properly manage, develop, protect, restore, enhance and conserve the environment of the area for which it is responsible, in a manner that is consistent with and promotes the principles of ecologically sustainable development”.

  1. The submission made, as I understood it, was to the effect that the requirement for a council to properly “manage, protect … enhance and conserve the environment” of its area does not comprehend the exercise of any power directed to the welfare of animals.

  2. The only element of the charter for a council, as expressed in s 8(1) and directed to the exercise of a regulatory function, is a requirement that in so doing a council “acts consistently and without bias”. While s 8(2) requires that a council, in the exercise of its functions, “must pursue its charter”, beyond the charter element to which I have last referred, no other element directly addresses the exercise of a council’s regulatory function.

  3. Section 21 of the Local Government Act states that a council has the functions “conferred or imposed on it by or under this Act.” Section 22 then expands upon a council’s functions by providing that a council also has the functions conferred or imposed on it “by or under any other Act or law.” A note to the section identifies a number of Acts under which functions are given to a council. Among the Acts so identified is the Companion Animals Act 1998 (NSW). By ss 29-32 of that Act functions in relation to cats are conferred on council’s constituted under the Local Government Act. Those functions relate to the mechanism for identifying cats, a prohibition of cats in certain places, the power of an officer authorised by a council to issue an order to the owner of a cat requiring prevention of behaviour alleged to constitute a nuisance and further provisions directed to the seizure and destruction of a cat.

  4. Having regard to the statutory provisions to which I have referred, Mr McCudden submits that none of those provisions confer upon a council any specific function in relation to the welfare of cats. While the Companion Animals Act confers some functions on a council in relation to cats, that function is not expressed so as to indicate that its exercise is directed to the welfare of cats.

  5. Mr McCudden also submits that where a specific function is given to a council under another statute, such as the Companion Animals Act, it leads to an odd result to imply that a function directed to the welfare of cats should be left to a council under the Local Government Act. He also seeks to give weight to this submission by noting that the objects of the Prevention of Cruelty to Animals Act 1979 (NSW), as expressed in s 3, are directed to the prevention of cruelty to animals and to promote their welfare. Relevantly, none of the provisions of that Act confer any power or function upon an authorised officer of a council directed to the enforcement of its provisions.

  6. Founded upon the statutory provisions to which reference has thus far been made, Mr McCudden submits that they manifest three “unarguable propositions”. These are stated as being:

“●   The LG Act has no specific provision conferring upon a council a power to concern itself with the welfare of cats;

●   The Companion Animals Act does confer powers and functions on a council in relation to cats but not their welfare;

●   The Prevention of Cruelty to Animals Act deals expressly with the welfare of cats and does not confer any power or function on a council in relation to the provisions of that Act.”

  1. As I understand the submission, these propositions are said to provide a general context that speaks against the power of the Council to found its Order of 6 August 2015 upon a concern for the welfare of the cats being kept on the Land. For reasons that I will later give, I do not accept that submission.

  2. Mr McCudden next turns to Ch 7 of the Local Government Act being the chapter that is headed “What are the regulatory functions of councils?”. Part 1 of that chapter addresses the regulatory function to be undertaken by a council in granting approvals for nominated activities. Part 2 of the Chapter is headed “Orders” and is the Part in which s 124 is found. In construing the power to give an order under that section, Mr McCudden refers back to that element of a councils charter in s 8 that I have earlier quoted, directed to the management, protection, enhancement and conservation of the environment and the promotion of the principles of ecologically sustainable development. Consistent with that element of the charter, Mr McCudden contends that all of the items in Column 1 and Column 2 in the Table to s 124 relate to matters concerning the environment. Or, as was put in oral submissions, directed to an activity that has external impact.

  1. This, so it is submitted, becomes the more apparent when consideration is given to the circumstances that enliven the power to give Orders numbered 15, 16, 17 and 19 in the Table to s 124. Each of those numbered Orders, along with Order No 18, appear in the Table under the heading “Orders requiring the premises to be used or not used in specified ways”. The power to give Order no 15 is enlivened when the activity that can be enjoined is either “a life threatening hazard” or is “a threat to public health or public safety”. Orders numbered 16 and 17 are consequential upon an order having been given in accordance with Order No 15. Order No 19 may be given where use of a tennis court is either a source of annoyance or a threat to safety of those outside the site on which the tennis court is located.

  2. The immediate legislative context enlivening the power to give Order No 18, so it is submitted, supports the contention that an order of that kind can only be given if a reason for so doing is one directed to some external impact consequent upon the keeping of birds or animals on premises. So understood, that context offers no support for the giving of an order founded upon the welfare of those birds or animals on the premises in question.

  3. As the Council founded the giving of the Order in question upon an irrelevant consideration, namely the welfare of cats, Mr McCudden submits that the Order given to him was, for that reason, an order given beyond power.

  4. I do not accept the submissions of Mr McCudden. In the process of construing s 124 and Order No 18, he does not point to any provision having the necessary consequence that consideration of the welfare of animals kept on premises is a proscribed consideration when determining to give such an order. Nor does the statutory context upon which Mr McCudden relies result in that consequence.

  5. As the Council contended, in order to establish that the exercise of a statutory discretion miscarried because the decision-make took into account an irrelevant consideration, thereby resulting in a decision made beyond power, it is necessary for the challenging party to establish that, when exercising the power, the decision-maker was forbidden to consider the impugned matter. M. Aronson, M. Groves Judicial Review of Administrative Action, 5th Ed., 2013 at [5.30]). Relevantly, the only essential element for the exercise of the discretion to give Order No 18 is that the birds or animals being kept on premises are “of an inappropriate kind or number or are kept inappropriately”. The ultimate decision that the kind or numbers of birds or animals are “inappropriate” or that they are kept “inappropriately” necessarily involves a judgment to be made by the decision-maker. The matters to be considered in making that judgment are not identified in the section nor in the Regulation directed to Order No 18.

  6. On its face, nothing in the text of Column 2 of Order No 18 forbids consideration of animal welfare. The matters that may inform the “inappropriate” aspect of animal numbers, kind or conditions is left to the discretion of the decision-maker. That discretion attracts, by analogy, the dictum of Deane J in Re Sean Investments Pty Ltd v Mackellar [1981] FCA 191; 38 ALR 363 where his Honour said (at 375):

“Where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards.”

  1. The word “inappropriate” is a word of wide import, generally identifying something that is unsuitable or unacceptable by reference to some criterion or standard. When used in a statutory context, the broad judgment as to what is inappropriate, unsuitable or unacceptable is limited only by the context of that provision, considering the scope and purpose of the Act in which it is found (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78]; Independent Commission Against Corruption v Cunneen [2015] HCA 14 at [31]).

  2. The reliance by Mr McCudden upon the absence of a specific power in the Local Government Act directed to the welfare of cats provides no basis for reading Column 2 of Order No 18 and particularly the word “inappropriate” in the limited manner suggested by him. For example, it may reasonably be considered that the area within which a number of animals are being confined by the occupier of land is so constrained that in order to reduce morbidity the number of animals confined to that area must be reduced. Their present number is “inappropriate”. Why the exercise of power to give Order No 18 under s 124 would not be available in that circumstance is not apparent from the text of the statutory provision. Yet the reason for the order would engage the rubric of “animal welfare”.

  3. An indication that welfare may be a reason to give Order No 18 emerges from the provisions of par (b) in Column 2 relating to such Order. A circumstance additional to those identified in par (a) of Column 2 that founds an order relates to premises in a catchment district in which birds or animals are kept and those birds or animals “are suffering from a disease which is communicable to man or to other birds or animals or pigs.” While a purpose of par (b) may be to control birds or animals that have the potential to be vectors for disease that may more readily spread or have a more significant consequence in a catchment district, the text affords no reason to set aside consideration of the impact that the disease has upon the animals themselves. Certainly, the terms of the paragraph could not be construed as impliedly prohibiting consideration of animal welfare when determining to give Order No 18.

  4. I have earlier identified Mr McCudden’s reliance upon the provisions of the Companion Animals Act and the Prevention ofCruelty to Animals Act as impliedly limiting the considerations that can lawfully inform the giving of Order No 18 under s 124. That reliance is not, to my mind, well-founded. The circumstance that a council may have a function to perform in relation to animals under another Act or that another Act may address an aspect of animal welfare does not, of itself, impose an implied limitation upon the power to give an order under s 124. My conclusion that the legislation to which Mr McCudden refers does not impose such limitation finds support in the published note to s 124, stating that the section “does not affect the power of a council to give an order (or a notice or direction) under the authority of another Act.” The note continues by giving examples (expressly so described) of “some of those Acts and the orders (or notices or directions) that may be given”. In terms, the note does not purport to be exhaustive in listing legislation that gives such a power to a council.

  5. I have earlier referred to s 7 of the Local Government Act, identifying the purposes of the Act, one of which is to give councils “the responsibility for administering some regulatory systems under this Act”. Chapter 7 of the Local Government Act, within which s 124 is found, is headed “What are the regulatory functions of councils?” The introduction to that Chapter states that it is the part of the Act in which the “major regulatory functions of councils are found”. Those regulatory functions are divided into parts. Part 1 of the Chapter addresses approvals required from a council to carry out nominated activities, while Part 2 identifies those things that a council may, by order, require a person to do or to refrain from doing.

  6. As the Council submitted, the scheme reflected in s 7 and Ch 7 of the Local Government Act, directed to the regulatory function of a council, does not support the contention that an order under s124 is limited to the element of a council’s charter under s 8, namely the consideration of environmental impacts. Indeed, reliance upon s 8 to circumscribe the power of a council to give an order under s 124 is not only unsupported by the text but does not appear to reflect the introduction to the section that appears in the published version of the Act. That introduction states:

“Introduction. The charter contained in this Chapter comprises a set of principles that are to guide a council in the carrying out of its functions. A council may add other principles not inconsistent with those in the Chapter.”

  1. However, let me accept that an underlying element informing the power to give Order No 18 under s 124 must derive from the need properly to “manage, develop, protect, restore, enhance or conserve the environment of the area” for which the Council is responsible. Why the exercise of power to control the number of cats upon Mr McCudden’s property and to circumscribe the conditions under which they are kept so as to address the welfare of those cats is not an aspect of the management, protection or conservation of the environment was not explained.

  2. It will be recalled that by s 7(e) of the Local Government Act, one of the objects of the Act is to require that a council, when carrying out its responsibilities, does so having regard to “the principles of ecologically sustainable development.” Significantly, the element of a council’s charter under s 8 upon which Mr McCudden relies is to manage the environment in a manner that is consistent with “the principles of ecological sustainable development.” As I have earlier recorded, the last phrase is defined in the Dictionary to the Act in the same terms as appears in other State legislation, such as s 6(2) of the Protection of the Environment Administration Act. The latter definition is that adopted, by reference, in s 4 of the EPA Act. An important element of each definition is reference to the word “environment”.

  3. Although the word “environment” is not defined in the Local Government Act,

  1. given the common definition of “ecologically sustainable development”, incorporating the word “environment”, in the Local Government Act, the Protection of the Environment Administration Act and the EPA Act, and

  2. the significance of functions performed by a council under the EPA Act,

  3. there is no reason to believe that “environment” would be used differently in the Local Government Act. If that term is used either according to the definition in s 4 of the EPA Act or according to that in s 3 of the Protection of the Environment Administration Act, the welfare of animals is clearly an aspect of “the surroundings of humans” or a “component of the earth” including “living organisms”. Regulatory measures directed to animal welfare may therefore be seen as directed to an aspect of the management and control of the environment.

  1. For these reasons, the welfare of animals in this case was relevant to the Council’s consideration when determining to give the order that it did under s 124 of the Local Government Act. Whether the things required to be done under that order are reasonable is for consideration on a merit appeal under s 180. Those requirements of the order do not, in the present case, undermine its validity.

  2. Mr McCudden addressed the second part of Question 2 on the basis that if the the order was founded upon a concern for animal welfare, as reflected in par 1c of Sch A to the order, and that foundation was legally irrelevant, the order was thereby invalid. No further submission was directed to invalidity when addressing the question. I will give my answer to this part of the question, assuming Mr McCudden’s position to reflect the correct approach. However, as will later appear, I do not accept the assumption made by Mr McCudden to be correct.

  3. If, contrary to my determination of Question 1, each component of Question 2 does arise, for the reasons I have stated the answers that I would propose to give are:

  4. Question 2(a):   Yes

  5. Question 2(b)   Yes

Question 3: If the answer to question 1 is that the reasons given for the Order are not limited to those expressed in paragraph 1c of Schedule A to the Order:

  1. for the purpose of determining whether the Order is invalid because the reasons given are inadequate, can the Council lead and rely upon evidence directed to those reasons;

  2. if it cannot do so, is the Order invalid because of inadequacy of reasons?

  1. I have restated the question and its constituent components in the manner indicated in order to reflect both the terms in which I recast Question 1 and also to reflect the manner in which Question 3, as originally framed, has been argued. As will be apparent from the answer I propose to give to Question 1, this question does require a response. Further, for reason given when responding to Question 1, I do not accept the premise in Question 3(a) that the reasons given in the Council’s order are inadequate.

  2. As the submissions of both parties acknowledge, the primary issue posed by Question 3(a) is whether the reference in paragraph 1b of Schedule A to the order to “inappropriate numbers” and “inappropriate conditions” sufficiently satisfy the requirement of s 136 of the Local Government Act as reasons for the giving of the Order. So understood, it is an issue that I have substantially addressed when indicating my proposed response to Question 1. Both parties have also addressed the evidence, if any, that might be adduced to supplement the reasons given, assuming that they are “inadequate”. It is therefore appropriate that I provide a response to the question although it is strictly unnecessary to do so.

Sufficiency of reasons

  1. For the purpose of responding to this question, Mr McCudden contends that to the extent that any reasons are exposed in paragraph 1b of Schedule A to the order, those reasons are inadequate. Indeed, his ultimate submission is, consistent with the submission addressing Question 1, that paragraph 1b provides no reason at all for the matters stated in that paragraph.

  2. He submits that the reasons required by s 136 must make intelligible the true basis for the decision to give the order. Only if the reasons have that effect can the recipient of the order determine the course to be taken in response to the order. He relies upon the decision of this Court in Stutchbury v Pittwater Council [1999] NSWLEC 177; 105 LGERA 1 and the decision to which I have earlier referred in Van Haasteren v South Sydney Council . Reference is also made to the decision of the Court of Appeal in O’Brien.

  3. Stutchbury, like the present case, involved an appeal under s 180 of the Local Government Act in respect of an order under s 124 requiring that premises be connected to a sewer. Although, like the present case, the proceedings were in Class 2 of the Court’s jurisdiction, preliminary questions were stated for determination. Relevantly, the first question asked whether the order was within power. The second question asked whether the order was invalid because the reasons stated for giving the order did no more than reflect the circumstances stated in Column 2 of the Table to s 124 that enlivened the power to give such an order.

  4. In response to the first question posed, Sheahan J held at [59] that the council had power to give the order. He then turned to address the second question. At [87] he summarised and accepted the submission on behalf of the Applicant in the following terms (omitting reference to authority):

“(i)   the mere restatement of the conditions which must be satisfied before the discretionary power to make the order arises is not the provision of reasons for the order; and

(ii)   the reasons given must make intelligible the true basis for the decision to issue the order so that

(iii)   the person who is affected by the order is fully informed of the basis for it and the reasons for issuing it, so that

(iv)   the affected person has sufficient information to decide whether to accept the order or appeal it.”

  1. His Honour then continued at [89]-[90]:

“89 The meaning of s 136 of the LG Act, read in the light of these authorities, is quite clear. When giving the order the council must provide reasons which clearly indicate consideration of material issues. Such reasons are crucial to the validity of the order (see Project Blue Sky Inc v ABA (1998) 72 ALJR 841 at 859-861).

90 In giving its reasons in this case the council said simply that because Stutchbury’s property and the dwelling on it could be reached by a direct line of less than 75 metres specified in s 124 he must connect to the sewer. The reasons provided, therefore, do no more than state the criterion which enlivens the power.”

  1. The reasoning and decision in Stutchbury was adopted by Bignold J in Van Haasteren at [36]-[38]. As I have earlier stated, in Van Haasteren his Honour held that the requirement for reasons can never be satisfied by statement of the circumstances enlivening the power to give an order under a statutory provision equivalent to s 124. For the reasons earlier given, the decision in those terms cannot stand in the face of the decision of the Court of Appeal in O’Brien.

  2. The decision in O’Brien also has consequences for the decision in Stutchbury. Proposition (i) of the propositions accepted at [87] of Stutchbury is inconsistent with the decision in O’Brien at [47], the latter being authority by which I am bound. Further, to the extent that propositions (ii), (iii) and (iv) accepted in Stutchbury at [87] may imply a requirement for detailed reasons, that does not reflect the manner in which O’Brien poses the test for sufficiency of reasons. The requirement there expressed by Stein JA at [46] and [47] is that, reading the order as a whole, it must “make plain to the recipient the basis and reason for the decision to issue the order.” As expressed by his Honour at [48], the reasons given should reflect “the rationale for the giving of the order”.

  3. I have earlier referred to the decision of Pearlman J in Shannon v Lithgow City Council where her Honour found that an order in a form sanctioned by Order No 18 under s 124 of the Local Government Act, requiring that the number of dogs kept on particular premises be reduced to four, was not invalid for want of reasons. The reason stated in the order was “to reduce the number of dogs being kept on the premises to an appropriate number of four (4) dogs”. It is clear from her Honour’s judgment (at 258) that the specification of an appropriate number of dogs was the reason for limiting the number to four, given the circumstances that enlivened the power to give the order was that dogs on the premises were “of an inappropriate number”. The stated reasons in the order did, according to her Honour, make “clear enough” why the order had been given.

  4. Her Honour’s decision in Shannon was not followed by Sheahan J in Stutchbury. In Stutchbury, his Honour stated at [93] that he had come “to a different conclusion as to the appropriate test of the adequacy of reasons”. Mr McCudden submits that his Honour was correct in so doing. However, that submission overlooks the fact that the approach to reasons taken in Stutchbury, at least expressed in terms of principle, is inconsistent with the later decision of the Court of Appeal in O’Brien. Conversely, the decision in Shannon is consistent with the latter decision.

  5. The decision in O’Brien makes apparent that in an appropriate case, reference to the circumstances that enliven the power to give an order under a statutory regime that is mirrored in the provisions of Pt 2 of Ch 7 of the Local Government Act, may be sufficient to disclose both the basis and reasons for such an order. In the case of an order in the form of Order No 18 under s 124, Shannon exemplifies the circumstance that such an order, founded upon keeping an inappropriate number of animals, may meet the requirement of s 136 by stating the appropriate number of animals to be kept on the premises to which the order relates. Particularly is this so where the order otherwise identifies measures directed to the keeping of those animals.

  1. For these further reasons, I am satisfied that the reasons stated in the order given to Mr McCudden on 6 August 2015 satisfy the requirement of s 136 of the Local Government Act. The order, read as a whole, exposes the rationale for giving the Order.

Further evidence to enhance reasons

  1. As I have determined that the order given to Mr McCudden sufficiently states the reasons for which it has been given, it is strictly unnecessary for me to determine whether, assuming the reasons to be inadequate, it is open to the Council to adduce evidence providing reasons that supplement the “inadequate reasons”. However, as both parties have addressed that aspect of the question, it is appropriate that I make brief observations about it.

  2. The first observation to make is that Mr McCudden has invoked the jurisdiction of the Court under s 180 of the Local Government Act. As I have already recorded, his appeal was brought in the Court’s Class 2 jurisdiction. Proceedings in that Class are determined by way of merit review. Indeed, by his Application commencing the proceedings he seeks an order revoking the order given to him by the Council, being an order that the Court is empowered to make under s 180(4)(a) of the Local Government Act. He has not sought to invoke the Court’s Class 4 jurisdiction under s 20(2) of the Court Act.

  3. I will elaborate further upon the Court process invoked by Mr McCudden when addressing the fourth question that I am asked to answer. It is sufficient to record for present purposes that in the jurisdiction invoked in these proceedings, the Court is able to receive evidence from both the Council and Mr McCudden directed to the order, if any, that may be given to him.

  4. The challenge to the order given by the Council that is implicit in the separate questions presently posed for determination is in the nature of judicial review. If proceedings had been commenced directly seeking orders appropriate to judicial review proceedings, evidence in addition to the order itself would be admissible. That additional evidence would include events leading to the order being given, namely the inspection of the Land, observations then made, representations, if any, made by Mr McCudden, the giving of notice of proposed order under s 132 and the response made by him to that notice. Two of the cases to which I have already referred support evidence of that kind being adduced.

  5. Following the determination in Stutchbury that adequate reasons were not provided because the order there in question did no more than state the criterion enlivening the exercise of power, Sheahan J said at [91]:

“91   It must be noted that the Court has no knowledge of what may have passed between the parties, on the question of sewerage arrangements, prior to the giving of the order. The Court presumes Mr Stutchbury received a notice under s 132, but does not know if he made any representations to Council (s 133), and/or whether Council applied its mind to the adequacy or otherwise of his current arrangements.”

Those observations would be irrelevant unless his Honour is taken to be indicating that such evidence would be relevant when determining whether reasons for the order were, in the circumstances, sufficient.

  1. In O’Brien, Stein JA spoke of the argument of the kind presented in the present case as defying “the reality of the order”. This suggests that the context in which the order came to be given is relevant to the determination as to whether the recipient could be in any doubt as to the rationale for the giving of the order.

  2. In the present case, the evidence that emerges from the Council’s Statement of Facts and Contentions, as tendered for the purpose of determining these questions, demonstrates:

  1. that following receipt of complaints, discussions were held with Mr McCudden concerning the number of cats kept on the Land (February 2014);

  2. that the Land was inspected by officers of the Council revealing both a large number of cats, well in excess of 33, and the three locations in which they were kept on the Land (April/May 2014);

  3. expert reports were provided to the Council addressing cat numbers and the conditions in which they were kept (May 2015);

  4. notice to Mr McCudden of the proposal to issue an order in accordance with Order No 18 with a copy of the proposed order (2 July 2015);

  5. representation by Mr McCudden requesting that no such order be issued (6 July 2015);

  6. the subject order was given to Mr McCudden on 6 August 2015.

  1. The fact that these events occurred and any further evidence directed to them are relevant background facts to the giving of the order and the expressed reasons for that order. As the Council submitted, it would “defy the reality of the order” for the Court to be denied receipt of this evidence. However, for reasons expressed, the terms of the present Order are sufficient in themselves to provide the reasons required by s 136.

  2. Mr McCudden submitted that reasons for an order must crystallise at the time at which the order is given. So much can be accepted. The evidence to which I have referred is directed to events that occurred on or prior to 6 August 2015 when the order was given. The essence of the Council’s consideration of those events is reflected in the reasons stated in the Order.

  3. In identifying the evidence appropriate to be considered for present purposes, I am not suggesting that the evidence able to be led by the Council on the merit hearing of the appeal would be so limited. That is a matter upon which I will make further observations when responding to Question 4.

  4. Question 3(b) asks whether the Order is invalid because of the inadequacy of reasons. For reasons that I will later express, I do not accept that an inadequacy of reasons invalidates an order that conforms to the requirements for giving such an order by reference to Columns 1, 2 and 3 of the Table to s 124.

  5. I propose to answer Question 3(a) “Yes” and Question 3(b) “No”.

Question 4: If the Order is invalid, whether the Court has power to make an order under s 180(4) of the Local Government Act or s 39(2) of the Land and Environment Court Act and, in particular, whether it has the power to modify the Order or substitute the Order for any other order that the Council could have made

  1. There are three assumptions implicit in this question:

  1. that the only reason given for the order is the welfare of cats and that reason cannot, in law, found the giving of an order in the form of Order No 18 under s 124;

  2. to the extent that the Council relies upon the number and condition of cats on the property as being “inappropriate”, no reason or no adequate reason is given for the order contrary to the requirement of s 136 of the Local Government Act; and

  3. the absence of reasons so as to satisfy the requirement of s 136 results in the order given to Mr McCudden being “a nullity”.

  1. For the reasons that I have already given, I have not accepted the first two assumptions implicit in the question, with the result that an answer to the question is unnecessary. For the same reason, the ultimate question as to the ambit of this Court’s powers on the assumptions made is not necessary to be answered. However, as the question has been debated by the parties, as has a related question posed by me in the course of the hearing, it is appropriate to indicate the response that I would make.

  2. The submission succinctly made by Mr McCudden in response to the question is found in his written submissions in the following terms (at par 61):

“61 It seems self-evident that if there was no power to issue an Order then it should be treated as a nullity (see Barnes v Dungog Shire Council [1999] NSWLEC 146 at [58]).”

  1. As expressed, that submission assumes either that the absence of contemporaneous reasons stated in the notice itself or accompanying the notice operates retrospectively to deny a council the power to have given the order under s 124 or that the absence of such reasons renders the order “a nullity”. I do not accept that either consequence is self-evident. The decision in Barnes v Dungog Shire Council [1999] NSWLEC 146 upon which Mr McCudden relies does not support his submission. As the judgment in that case at [46] indicates, the ultimate determination that the order there given was a “nullity” was the consequence of a failure to have observed a statutory pre-condition to the exercise of power to give the order. That is not this case.

  2. Section 136 of the Local Government Act does not, in terms, identify some action or step that must be taken by a council as a condition precedent to the exercise of power. Its terms are to be contrasted with the provisions of s 132(1) requiring, in terms, that “[b]efore giving an order”, a council must give notice to the person to whom the proposed notice is to be given of its intention to give the order. I will return to the significance of these provisions shortly.

  3. Following service of the order upon him, Mr McCudden exercised the right of appeal afforded to him under s 180(1) of the Local Government Act. The jurisdiction of this Court having been so engaged, s 180(4) identified the scope of discretionary powers open to the Court when hearing and determining his appeal. The terms of the subsection make clear the breadth of the Court’s discretion, exemplified in paragraph (f) of the subsection enabling the Court to “make any other order with respect to the order as the Court thinks fit”. Those provisions, coupled with the provisions of s 39 of the Court Act amply demonstrate that the Court, on appeal under the section, determines for itself, based upon the material placed before it by the parties, whether any order of the kind the Council seeks should be given and, if so, in what terms.

  4. The essence of Mr McCudden’s submission is that if an order is invalid or “a nullity” there is no “order” in respect of which the Court can exercise the discretionary power given to it under s 180(4).

  5. On the assumption that the order was “invalid and of no effect” (applicant’s supplementary submissions at par 24) the order that Mr McCudden seeks was not identified. His present challenge seems inconsistent with the order sought in his application, namely that the Council’s order be revoked, as making that order would involve the exercise of power under s 180(4). He does not seek declaratory relief in respect of the order as that would necessarily involve the commencement of separate proceedings by way of judicial review under s 20(2) of the Court Act. Even if such proceedings were commenced, the Court may, in the exercise of its discretion decline to make any order, on the basis that a full merit hearing is available under s 180.

  6. The submission made by Mr McCudden that the invalidity of an order denies the Court the power to do other than make some unspecified order directed to the validity of the Council’s order was rejected by Pearlman J in Ranjon International Holdings Pty Ltd v Rockdale Council (1994) 83 LGERA 10. That case also involved an appeal under s 180 of the Local Government Act in respect of an order given under s 124, requiring rectification of a water main to ensure sufficient water pressure for fire fighting purposes within the premises of the landowner. For reasons that are not presently relevant, the appellant landowner contended that the order under s 124 was invalid, with the consequence that the Court lacked power either to modify or substitute another order for the order made by the Council. In response to that argument her Honour said (at 19):

“This argument misconceives, in my opinion, the nature of the appellate jurisdiction of this Court under s 180 of the Act. As I have earlier said, such an appeal falls within class 2 of the Court’s jurisdiction. In respect of such an appeal, s 39 of the Court Act applies, subs (3) of which stipulates that the appeal shall be by way of re-hearing … The present proceedings are not proceedings which seek to invoke the Court’s jurisdiction to make a declaration that the order in question is invalid; they are an appeal against the order itself. Section 180(4) must be read in that context. The purpose of the section is to allow the Court, standing in the shoes of a council, to hear and dispose of the proceedings starting afresh, as it were, and to make an order which has utility in the circumstances.

I am fortified in this interpretation of the jurisdiction of the Court under s 180(4) by the width of the language of the whole of s 180. There is nothing in that language that would lead me to suppose that the legislature intended that it would be necessary for the Court to find that the order appealed against was valid for it to exercise its jurisdiction under s 180(4).”

  1. Those observations are, with respect, apposite to the present case. Regrettably, her Honour’s decision in Ranjon does not appear to have been considered in either Stutchbury or Van Haasteren, each of which involved an appeal under s 180, or its equivalent in s 121ZK of the EPA Act, in which the argument was directed to the validity of the order. However, I acknowledge that in those cases the decisions were directed to answering preliminary questions and not making final orders determining the proceedings.

  2. Section 121ZK(1) of the EPA Act confers a right of appeal to this Court upon a person who has been served with an order given by a council under s 121B of that Act. Subsection (4) of that section is in almost identical terms to s 180(4) of the Local Government Act. In O’Brien, the appellant submitted that in an appeal under s 121ZK(1) the hearing of the appeal was confined to the reasons articulated in the order that had been given to the appellant (at [54]). After stating that such an appeal involved a hearing de novo, Stein JA said at [56]:

“In my opinion, there is no reason to confine the appeal to the reasons articulated in the order in the first place. The width of the powers of the Court under s 121ZK(4) belie the submission of the appellant. The hearing of the appeal is not confined in the manner suggested by the appellant.”

  1. Mr McCudden correctly observes that O’Brien did not directly address the consequence for the hearing of an appeal to this Court under s 121ZK if it was found that the order given by the relevant council was “invalid”. As I have earlier recorded, the court in O’Brien had rejected the argument that the order there being considered was invalid for want of reasons. However, the observations made in that case as to the nature of the hearing, the “width of powers” of the Court in hearing an appeal under s 121ZK and the determination that the issue or issues in such an appeal are not confined to the reasons stated in the original order, are factors that support the approach of Pearlman J in Ranjon. The observations of Stein JA in O’Brien also weigh against the submission that a failure to state reasons in an order given under s 124 of the Local Government Act prevent the Court, on appeal under s 180, from conducting a merit hearing and exercising any one of the discretionary powers identified in s 180(4).

  2. There is a further factor weighing against the submission that the invalidity of an order given under s 124 of the Local Government Act has the consequence that the Court is unable to exercise the discretionary powers available under s 180(4), notwithstanding that the provisions of s 180(1) are invoked to engage the Court’s jurisdiction. An order that, when given by a council, is legally defective is not devoid of any legal consequence until its invalidity is so determined by a court of competent jurisdiction. Pending any such determination, the order has “sufficient existence in law” to found an appeal under s 180(1) (Calvin v Carr [1979] 1 NSWLR 1 at 8F). The order made by the Council in the present case properly founded Mr McCudden’s appeal under s 180(1).

  3. I have earlier made reference to s 39 of the Court Act. The section relevantly provides:

“39   Powers of Court on appeal

…

(2)   In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3)   An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

…

(5)   The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly.”

  1. Those provisions, coupled with the broad discretion afforded to the Court by s 180(4) of the Local Government Act, demonstrate the capacity of an appellant under s 180(1) to have considered afresh the decision to give an order under s 124 and, if applicable, the terms of such an order. That ample jurisdiction of the Court so to determine an appeal has the consequence that any defect in the order first given by a council may be superseded or overcome by the appeal process provided by s 180 (Twist v Randwick Municipal Council [1976] HCA 58; 136 CLR 106, per Barwick CJ at 110-111 and Mason J at 116; Calvin v Carr at 10).

  2. I have earlier referred to the reliance placed by Mr McCudden on the decision of this Court in Barnes. In that case Talbot J determined that failure to comply with the pre-condition to giving an order, imposed by s 121J of the EPA Act, had the consequence that the order given under s 121B was invalid. Section 121J required that a council, having given notice of a proposed order to the intended recipient, was required “to hear and consider” any representations made in response to that notice before finally determining to give the order. The latter section has its equivalent in s 134 of the Local Government Act. Having held that the order in Barnes was invalid (at [46]), his Honour said at [48]:

“The decision in Twist is distinguished on the basis that the issue in that case was concerned with overcoming the lack of procedural fairness on appeal. A failure to strictly comply with pre-conditions set pursuant to a statutory scheme cannot, by its nature, be cured on appeal.”

  1. Although the judgment in Barnes records that Talbot J was determining a “disputed question of law regarding the validity of the order” prior to a hearing on the merits (at [16]), having answered the questions (sic) that were posed, his Honour, without more, determined that the appeal should be upheld. Moreover, without further elaboration his Honour stated that pursuant to s 121ZK(f) the council was “ordered to treat the order as a nullity” (at [58]). While no hearing on the merit was entertained, his Honour nonetheless determined the outcome of the proceedings by making one of the discretionary orders open to him under the statutory provision that finds its equivalent in s 180(4)(f) of the Local Government Act, as if the impugned order had properly engaged the entitlement to appeal under a provision equivalent to s 180(1) of the latter Act. Finally, I observe that his Honour does not appear to have been referred to the decision of the Privy Council in Calvin v Carr.

  2. Further consideration of Barnes is unnecessary. It is sufficient for present purposes to distinguish the decision on the basis that the challenge in the present case is not directed to a failure to observe a pre-condition to giving an order under the regime established by Pt 2 of Ch 7 of the Local Government Act. So understood, the decision in Barnes does not contradict my conclusion that, assuming the order in the present case did not provide or have attached to it the reasons required by s 136, once the Court’s jurisdiction is engaged under s 180(1), it has power to conduct a hearing on the merits of the order and determine the appeal, exercising the broad discretion afforded by s 180 (4).

Does the absence of reasons result in invalidity of the Order?

  1. As I have indicated, the underlying premise or assumption of Mr McCudden’s submissions is that the absence of reasons, once established, necessarily has the consequence that the order is invalid. That approach is understandable, given the earlier decisions of this Court in Stutchbury and Van Haasteren. However, in the course of the hearing I invited the parties to make additional submissions directed to the correctness of the underlying premise or assumption. They have each supplemented their submissions by accepting my invitation.

  2. Because of the centrality of s 136 of the Local Government Act to the determination of this question, it is convenient to repeat its provisions:

“136   Reasons for orders to be given

(1)   A council must give the person to whom an order is directed the reasons for the order.

(2)   The reasons may be given in the order or in a separate instrument.

(3)   The reasons must be given when the order is given, except in a case of urgency. In a case of urgency, the reasons may be given the next working day.”

  1. Both parties accept that the test to be applied when determining the consequence for an order pursuant to s 124 if reasons required by s 136 have not been provided is that articulated by the High Court in the well-known passage from Project Blue Sky v Australian Broadcasting Authority where the plurality said at [91]:

“91   An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment.”

  1. Unsurprisingly, the parties reach a different conclusion when applying that test to the critical provision of the Local Government Act.

  2. Mr McCudden submits that s 136 imposes “a clear and direct statutory obligation to give reasons and to do so when an order is given” or, in the case of urgency, on the day following the day on which the order is given. This is because the provision “is couched in mandatory terms” (supplementary submissions at par 8).

  3. He further submits (at par 10) that the “consequences, obligations and rights which flow from the giving of an order” make plain that a failure to comply leads to invalidity. Further, the purpose of mandating the provision of reason is so that the recipient can make an informed decision about what should be done in response to the order. If reasons are not provided, so the argument runs, the recipient of the order is not informed so as to make a decision, presumably as to whether compliance or an appeal should be considered.

  4. Mr McCudden then submits that if the “decision making process giving rise to the issue of the order is not communicated to the recipient … an essential part of the process of determining to issue and serve an order has failed.” While I understand the earlier submission directed to the provision of reasons enabling the recipient better to decide upon a response to the order, I do not understand the text of s 136 or any other relevant provision within Pt 2 of Ch 7 to require communication of “the decision making process giving rise to the issue of the order”. I do not think that part of the submission accurately reflects the language of s 136. The reasons that are intended to be communicated to the recipient of an order would reflect the result of the “decision making process” rather than the process itself.

  5. In support of the submission as to the purpose and intent of s 136, Mr McCudden relies upon the decisions in Stutchbury and Van Haasteren. In Stutchbury Sheahan J reviewed several authorities in which the need for and sufficiency of reasons by an administrative decision-maker were discussed. None involved a consideration of s 136 of the Local Government Act or the consequence of a failure to provide reasons for an administrative decision in the context of statutory provisions comparable to Pt 2 of Ch 7 of the Local Government Act.

  6. Having considered the authorities to which he was referred, his Honour said at [89]:

“89 The meaning of s 136 of the LG Act, read in the light of these authorities, is quite clear. When giving the order the Council must provide reasons which clearly indicate consideration of material issues. Such reasons are crucial to the validity of the order (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 387-392).”

  1. The passage at [91] in Project Blue Sky that I have earlier quoted is found at 388-389 of the report, that is, within the page range to which his Honour refers. The passage that I have quoted from Stutchbury is the only passage in the judgment citing or discussing Project Blue Sky. In the absence of any analysis of the provisions of the Local Government Act of the kind required by Project Blue Sky it is, with great respect, difficult for Mr McCudden to derive any statement of principle from Stutchbury to the effect that the absence of reasons from or accompanying an order given to an occupier of land in the form of Order No 18 under s 124 necessarily results in the invalidity of that order.

  2. Reliance upon the decision in Van Haasteren takes the matter no further. The focus of the judgment in that matter was upon the absence of reasons provided for the order being challenged. In addressing that issue, Bignold J agreed in the test propounded in Stutchbury for determining whether the requirement for reasons was satisfied (at [36]-[38]).

  3. In Van Haasteren Bignold J did conclude at [46] that the order there being considered was, in the absence of reasons, “wholly invalid”. He did so following reference to the obligation imposed upon a landowner as a consequence of giving an order under s 121B of the EPA Act (s 124 of the Local Government Act), including the availability of civil remedies on the part of the council to enforce an order or the capacity of a council to prosecute for a failure to comply with the order on the basis that such a failure may constitute an offence against the Act. He did so in the context of rejecting a submission (at [42]) that the powers and discretion of the Court on appeal under s 121ZK of the EPA Act (or s 180 of the Local Government Act) provided “some form of atonement or relief” against the failure to give reasons. In so doing no reference was made to Calvin v Carr nor, relevantly for present purposes, to the decision in Project Blue Sky.

  4. The one further authority relied upon by Mr McCudden to sustain the claim of invalidity was the decision of this Court in Lederer v Sydney City Council [2001] NSWLEC 272; 119 LGERA 350. Unlike the present case, Lederer did not involve the determination of some preliminary question or questions in an appeal against an order. Rather, it involved a full merit hearing, albeit that for the purpose of determining the appeal a series of questions were posed, effectively identifying the issues for determination. The order in question was given under s 121B of the EPA Act, requiring the removal of an advertising sign affixed to the wall of a heritage building. Lloyd J was required to construe the order as served, being the order for which the council contended on the appeal. He determined that upon its proper construction and having regard to the evidence before him, the sign that was the subject of the order had already been removed from the wall of the building and as a consequence nothing further was required to be done in order to comply with the order (at [139]). Notwithstanding that determination, which was sufficient to dispose of the appeal, his Honour did proceed to consider other issues argued before him.

  5. One such issue was directed to the validity of the order on the basis that reasons satisfying the requirements of s 121L of the EPA Act had not been provided. In addressing that issue his Honour focused upon the test of adequacy of reasons addressed in Stutchbury and Van Haasteren, concluding that the test there propounded was appropriate. Having applied that test to the order before him, Lloyd J determined at [163] that those reasons failed to “make intelligible the true basis for the decision to issue the order”. His Honour concluded, without further discussion, that as the statutory requirement for reasons had not been satisfied, the order was invalid.

  6. Replicating the reasoning of Bignold J in Van Haasteren, Mr McCudden identified “the consequences, obligations and rights which flow from the giving of an order” as making plain that a failure to comply with s 136 results in an order that is “a nullity”. I am prepared to assume that the purpose of the requirement to include reasons with or accompanying an order under s 124 is to ensure that the recipient of the order is sufficiently informed so as to decide the course to be taken in response to the order. Accepting that to be the purpose of reasons, it is not self-evident that the consequence of failure to include reasons invalidates the order.

  7. It seems to me that it is equally open to determine that the failure posited by Mr McCudden, having regard to the provisions of s 136 in context, has the consequence that an order given without the reasons required by s 136 will simply not be enforceable. In that circumstance any action taken by a council to enforce the order could properly be resisted or restrained including, in an appropriate case, by injunction. However, the circumstance that the order may not be enforceable would not deny it sufficient legal status to found the right of appeal under s 180 nor to deny the Court, when hearing such appeal, the power to modify, revoke or give another order that the council could have given.

  8. Such an approach is consistent with the observations of the plurality in Project Blue Sky. At [100] their Honours observed that an act done in contravention of a statutory provision, although not invalid, may nonetheless involve a breach of the Act in question, and therefore be “unlawful”. Their Honours continued:

“That being so, a person with sufficient interest is entitled to sue for a declaration that the [statutory authority] has acted in breach of the Act and, in an appropriate case, obtain an injunction restraining that body from taking any further action based on its unlawful action.”

Breach of s 136 does not result in invalidity of an order

  1. Having regard to the text of s 136 and its context in Pt 2 of Ch 7 of the Local Government Act, I have concluded that an order given under s 124 in conformity with the Table to that section is not invalid in the sense that it does not and never did have any legal effect, if the invalidity claimed is the absence of reasons stated in or accompanying the order. I have so concluded for the reasons that follow, substantially reflecting the submissions advanced by the Council.

  2. First, the text of s 136 is paramount. That text must be the focus of consideration when construing its terms and seeking to ascertain its purpose (Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39]). The text of s 136(1) does not support the invalidity for which Mr McCudden contends. The requirement of the subsection that “the person to whom an order is directed” must be given “the reasons for the order” (added emphasis), presumes the existence of an order in which or to which the reasons may, by subs (2) be included or attached. That interpretation, so it seems to me, is supported by subs (3) requiring that those reasons will be given “when the order is given” or “the next working day” after an emergency order is given.

  3. Although caution must be exercised in referring to decisions made by courts upon the interpretation of other statutes using mandatory language, the Council referred, by way of contrast, to the statutory language considered in Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; 78 NSWLR 393 at [40]-[45]. The statutory provision there considered was one stating that an adjudication “cannot be made unless” some prior step was taken. Compliance with that step was held to be essential to the validity of any subsequent adjudication.

  4. Language of the kind considered in Chase, reflecting a prerequisite to the exercise of power is absent from the text of s 136. I also accept the Council’s submission that the statutory text here in question bears some similarity to that which was considered in Project Blue Sky, in that the statutory provision there considered regulated the exercise of functions already conferred rather than imposed essential preliminaries to the exercise of a function. Where the text of the legislation is so expressed, it “stongly indicates that it was not a purpose of the Act that a breach of [the section] was intended to invalidate any act done in breach of that section” (at [94]).

  5. In VAW (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297; 58 NSWLR 631, the Court of Appeal was required to consider, amongst other matters, whether notices published of a determination made by the Scientific Committee under the Threatened Species Conservation Act 1995 (NSW) were invalid because of a failure to publish the reasons for the determination. The relevant statutory provision required that both the Committee’s preliminary determination and its final determination, “and the reasons for it” be published in a newspaper. As reasons for its determination were not published in accordance with the statutory requirement, the appellant argued that the determination was invalid.

  6. That argument was rejected by the Court. Although the Court accepted that the Scientific Committee had failed to publish reasons for each determination, that failure did not result in invalidity of the decisions because the publication of reasons under the relevant statutory provisions were not “preliminary requirements to the making of the respective determinations” (Beazley JA at [116], Spigelman CJ and Hodgson JA agreeing on that issue). The purpose of the requirement, so it was said, was to provide information. According to the submission of Mr McCudden, that also is the purpose of s 136, namely, to provide information to the recipient of the order. In rejecting the claimed invalidity because reasons were absent, Beazley JA applied the reasoning in Project Blue Sky. The requirement for stated reasons imposed by s 136(1) is not one directed to an essential preliminary to the exercise of a function to give an order under s 124.

  7. Secondly, the context of s 136 within Pt 2 of Ch 7 does not support the contention that a failure to comply with the section would render an order given under s 124 a nullity. Division 1 of that Part is headed “Giving of orders” and is the Division in which s 124 is found. Division 2 of that Part is headed “Procedures to be observed before giving orders”. It is the Division in which s s 129 to 135 are found. Section 129(1) provides that a council “must comply with this Division” before giving an order. Section 130 provides that a council complying “with this Division is taken to have observed the rules of natural justice (the rules of procedural fairness)”. These, together with the succeeding sections of Div 2 specify the procedural requirements for the giving of an order.

  8. Division 3 of Pt 2 is headed “Orders generally” and, as the heading suggests, contains disparate provisions pertaining to orders. Section 136 is the first section in that Division, while s 138 requires, with one exception that is not presently relevant, that in giving notice of an order a council must state the right of the recipient to appeal to the Court against the order and also specify the period within which that appeal may be made.

  9. The fact that s 136 is not included in Div 2, that is, it is not identified as steps to be taken as a condition precedent to giving an order, provides a context from which it may be inferred that compliance with s 136 is not integral to the validity of an order. The headings to those Divisions of Pt 2 are directly relevant to the interpretation of the legislation (s 35(1)(a) of the Interpretation Act).

  10. Thirdly, the provisions of s 144, also found in Div 3 of Pt 2, distinguish between the giving of an order under s 124 and the time at which the order takes effect. The section provides that the order is given by serving a copy on the person to whom it is addressed. The section separately indicates that an order takes effect “from the time of service or at a later time specified in the order”.

  11. That distinction is relevant to the interpretation that I have earlier posited, namely that the absence of stated reasons may mean that the order cannot be enforced. Once given by service the order has nonetheless been made and given, such as would properly engage the entitlement to appeal under s 180.

  12. Fourthly, as a contextual consideration, s 180 itself speaks against the interpretation for which Mr McCudden contends. The fact that s 180 contemplates the modification, revocation or substitution of an order by the Court suggests that the order persists and is not a nullity such as would deprive the Court of jurisdiction to exercise power under the section.

  13. That position is reinforced by the provisions of s 181. The section enables the Court “on hearing the appeal or otherwise”, to order a council to pay compensation to the recipient of an order upon satisfying the Court that the giving of the order was “unsubstantiated or the terms of the order were unreasonable”: s 181(1).

  14. In summary, I conclude that an order given under s 124 of the Local Government Act, apparently meeting the requirements for giving that order under the Table to the section, but in respect of which no reasons sufficient to satisfy the requirements of s 136 have been included in or accompany the order, is not, on that account, a nullity. An order, so given, persists so as to found the jurisdiction of the Court to entertain an appeal under s 180 and to exercise the power to hear and dispose of the appeal in accordance with that section in the manner addressed by s 39 of the Court Act.

  15. I appreciate that my conclusion may be seen as conflicting with earlier decisions of this Court in Stutchbury, Van Haasteren and Lederer. Consideration of the judgments in those cases suggests that the consequence of a finding that reasons, if any, did not satisfy the provisions of s 136 was not a matter addressed in the same manner as it was in the present case. On that basis, the cases may be distinguished. However, if my decision is truly in conflict with the decisions there made, then with great respect and due deference, I am unable to accept as correct the conclusions there expressed as to the validity of an order challenged on the basis of an absence of reasons.

  16. I propose to answer Question 4 “Yes. Even if the absence of reasons is assumed, the order is not, on that account, invalid and retains its force sufficient to ground an appeal, thereby enabling the Court to exercise the powers available to it under s 180 of the Local Government Act.”

Conclusion and orders

  1. In light of the reasons I have given, my answers to the questions posed and the orders I make are as follows.

  1. Question 1:   Upon the proper construction of the order given by the Council to Mr McCudden on 6 August 2015, does paragraph 1c of Schedule A to that order identify the single reason for which the order was given?

  2. Answer:   No

Question 2:   If the answer to question 1 is “Yes” (ie the reason for giving the order is that stated in paragraph 1c):

(a) whether the reasons given in paragraph 1c are relevant considerations to be taken into account in deciding whether to give an order under Item 18 of the Table to s 124 of the Local Government Act 1993; and

(b)   if irrelevant, was there power to give the order under s 124 of the Local Government Act 1993.

  1. Answer:   Question 2(a): Yes

  2. Question 2(b): Yes

Question 3:   If the answer to question 1 is that the reasons given for the order are not limited to those expressed in paragraph 1c of Schedule A to the order:

  1. for the purpose of determining whether the order is invalid because the reasons given are inadequate, can the council lead and rely upon evidence directed to those reasons?;

  2. if it cannot do so, is the order invalid because of inadequacy of reasons?

  1. Answer:   Question 3(a) Yes

  2. Question 3(b) No.

Question 4: If the order is invalid, whether the Court has power to make an order under s 180(4) of the Local Government Act1993 or s 39(2) of the Land and Environment Court Act1979 and, in particular, whether it has the power to modify the order or substitute the order for any other order that the Council could have made

  1. Answer:   Yes. Even if the absence of reasons is assumed, the order is not, on that account, invalid and retains its force sufficient to ground an appeal, thereby enabling the Court to exercise the powers available to it under s 180 of the Local Government Act 1993.

  2. Stand over the substantive proceedings to the Registrar’s List on Thursday 17 March 2016 for directions.

  3. Exhibits may be returned.

******

Decision last updated: 14 March 2016

Citations

McCudden v Cowra Shire Council [2016] NSWLEC 14

Citations to this Decision

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Statutory Material Cited

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