Stutchbury v Pittwater Council - [1999] NSWLEC 177

Land and Environment Court

of New South Wales

CITATION:

Stutchbury v Pittwater Council [1999] NSWLEC 177

PARTIES

APPLICANT
Peter James Stutchbury

RESPONDENT
Pittwater Council

NUMBER:

20207 of 1998

CORAM:

Sheahan J

KEY ISSUES:

Question of Law :- Preliminary Questions of Law - validity of Local Government (Water, Sewerage and Drainage) Regulation 1993 clause 40 - extent of duty to give reasons associated with an Order under s 124 of the Local Government Act 1993

LEGISLATION CITED:

Local Government Act 1993
Administrative Decisions (Judicial Review) Act 1997
Local Government (Water, Sewerage and Drainage) Regulation 1993

DATES OF HEARING:

07/16/1999

DATE OF JUDGMENT DELIVERY:

07/29/1999

LEGAL REPRESENTATIVES:

APPLICANT
Mr T Robertson (Barrister)
SOLICITORS
Woolf Associates
RESPONDENT
Mr D Parry (Barrister)
SOLICITORS
Malleson Stephen Jaques

JUDGMENT:

IN THE LAND AND Matter No: 20207 of 1998

ENVIRONMENT COURT Coram: Sheahan J

OF NEW SOUTH WALES 29 July 1999

PETER JAMES STUTCHBURY

Applicant

PITTWATER COUNCIL

Respondent

JUDGMENT

Introduction

1. This judgment concerns preliminary questions of law raised in these Class 2 proceedings, which are listed for hearing on 2 August 1999.

2. In the proceedings Mr Stutchbury appeals against an “ Order 24 ” served on him by the Council ( Exhibit A ), pursuant to s 124 of the Local Government Act 1993 (“ the LG Act ”), in respect of his land at 75 Hudson Parade, Clareville Beach, 2107 (“ No.75 ”).

3. His appeal on the merits is brought pursuant to s 180(4) of the LG Act, and this Court may do one of the following in respect of the appeal:

(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.

4. He contends at this preliminary stage that the Order is invalid .

The Order

5. Section 124 is in the form of a table introduced by the following paragraph:

What orders may be given, in what circumstances and to whom?

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.

6. Item 24 sits in the section of the table headed “ Orders requiring the preservation of healthy conditions ”, and says (in column form):

To do what?

To connect premises with a sewerage system by a specified date

In what circumstances?

The premises are situated within 75 metres of a sewer of the council

To whom?

Owner or occupier of premises

7. The relevant Order 24 was dated 19 November 1998 and required Stutchbury (as the owner) “ to connect…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] NSWLEC 177
Decision Date: 07/29/1999

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the applicant, Peter James Stutchbury, appealed against an order served by the respondent, Pittwater Council, under section 124 of the Local Government Act 1993 (the Act). The order required Stutchbury to connect his premises to the sewerage system of Sydney Water within 60 days. The applicant contested the validity of the order and the adequacy of the reasons provided by the Council. The primary issues for determination were whether the Council had the power to issue such an order, whether the Council provided sufficient reasons for the order, and if the order was invalid, whether the appeal should be dismissed.

The court found that the Council had the power to issue the order under the Local Government (Water, Sewerage and Drainage) Regulation 1993 (the Regulation), as it was consistent with the terms of the Act and did not exceed the regulation-making power. However, the court determined that the Council failed to provide adequate reasons for the order as required by section 136 of the Act. The reasons given merely restated the statutory criterion for the order without addressing the applicant's existing sewerage arrangements or explaining why those arrangements were no longer adequate. The court concluded that the deficient reasons rendered the order invalid.

Consequently, the court answered the preliminary questions in the affirmative, finding that the Council had the power to issue the order and that the order was invalid due to insufficient reasons. The court granted leave to the parties to approach the Registrar regarding the hearing of the appeal on the merits. The court made no order as to costs and directed that the exhibits remain with the Court file.

Orders