The Owners of Strata Plan 78825 v Northern Beaches Council

[2024] NSWLEC 12

Land and Environment Court

New South Wales

Medium Neutral Citation:

The Owners of Strata Plan 78825 v Northern Beaches Council [2024] NSWLEC 12

Hearing dates:

21 February 2024

Date of orders:

22 February 2024

Decision date:

22 February 2024

Jurisdiction:

Class 2

Before:

Pain J

Decision:

See below in [52]

Catchwords:

JURISDICTION – partial strike out of Class 2 application as court lacks jurisdiction to consider breach of duty of care to provide support for land under s 177 of the Conveyancing Act 1919 (NSW)

PRACTICE AND PROCEDURE – premature application for compensation under s 181 of Local Government Act 1993 (NSW) struck out

PRACTICE AND PROCEDURE – no transfer of proceeding to Supreme Court of NSW

Legislation Cited:

Conveyancing Act 1919 (NSW), s 177

Civil Procedure Act 2005 (NSW), ss 149B, 149D, 149E

Civil Liability Act 2002 (NSW), s 5B

Land and Environment Court Act 1979 (NSW), ss 16, 18, 19, 20, 22, 23

Local Government Act 1993 (NSW), ss 35, 36E, 36J, 59A, 124, 180, 181

Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28

Cases Cited:

Dolton v Eurobodalla Shire Council [2020] NSWLEC 141

Kosic v Queanbeyan City Council (Land and Environment Court, 26 November 1993, unrep)

Lawrence v Inner West Council [2019] NSWLEC 46

N Stephenson Pty Ltd v RTA of NSW (1994) 83 LGERA 248

NA & J Investments Pty Ltd v Minister Administering Water Management Act 2000 (2011) 181 LGERA 166; [2011] NSWLEC 51

National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573

NTL Australia Pty Ltd v Minister for Land and Water Conservation (2001) 112 LGERA 403; [2001] NSWLEC 5

Van Tonder v Hodgkinson [2012] NSWLEC 86

Category:

Procedural rulings

Parties:

Strata Plan 78825 (Applicant on motion 002, Respondent on motion 003)
Northern Beaches Council (Respondent on motion 002, Application on motion 003)

Representation:

Counsel:
C. Blackwell (Applicant on motion 002, Respondent on motion 003)
D. Robertson (Respondent on motion 002, Application on motion 003)

Solicitors:
Bannermans Lawyers (Applicant on motion 002, Respondent on motion 003)
Lindsay Taylor Lawyers (Respondent on motion 002, Application on motion 003)

File Number(s):

2023/00313247-002, 2023/00313247-003

JUDGMENT

1. The Owners of Strata Plan 78825 (the Applicant) has commenced Class 2 proceedings challenging the order issued under s 124 of the Local Government Act 1993 (NSW) (LG Act) by the Northern Beaches Council (the Council) dated 5 September 2023 ultimately requiring a retaining wall to be constructed on the Applicant’s land.

2. The Council has filed a notice of motion dated 28 November 2023 seeking to strike out the Class 2 Application and Statement of Facts and Contentions (SOFC) in part. The Applicant has filed a notice of motion dated 24 November 2023 seeking leave to rely on an amended Class 2 Application and Amended SOFC. Both motions were heard together. The focus of the argument was the Council’s objections to the amended Class 2 Application and Amended SOFC as the parties agreed that the Class 2 Application and SOFC were no longer to be relied on.

3. The parties are neighbours, each owning a large area of adjoining land. The Council owns an area of land known for current purposes as Lot 52 and the Applicant is located next door at 118B Parks Road Collaroy Plateau. There has been soil instability on the Council’s land and the Applicant’s land over a lengthy period. The Council’s order addresses soil instability on the Applicant’s land. The order has been issued under s 124 item 21 in the Table of the LG Act.

4. At issue is the jurisdiction to entertain parts of the Applicant’s claim in the amended Class 2 Application in relation to prayers 2, 5 and the Amended SOFC pars 5.5-5.8, 10-15 and whether these should be struck out. A separate issue concerns the Applicant’s claim made pursuant to s 181 of the LG Act which the Council seeks to strike out. Whether the Class 2 Application should be transferred to the Supreme Court also requires consideration.

5. The Council’s application to strike out is made under rr 13.4 (vexatious, frivolous), 14.28 (strike out pleadings) of the Uniform Civil Procedure Rules 2005 (NSW). These sections provide a basis to make the orders sought by the Council.

Land and Environment Court Act 1979 (NSW)

6. The Land and Environment Court Act 1979 (NSW) (LEC Act) provides relevantly as follows:

Part 3 Jurisdiction of the Court

Division 1 General

16 Jurisdiction of the Court generally

(1) The Court shall have the jurisdiction vested in it by or under this or any other Act.

(1A) The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act.

...   

18 Class 2—local government and miscellaneous appeals and applications

The Court has jurisdiction (referred to in this Act as “Class 2” of its jurisdiction) to hear and dispose of the following—

(a) appeals or objections under sections 176, 177, 178, 180, 182 and 611 of the Local Government Act 1993,

…

19 Class 3—land tenure, valuation, rating and compensation matters

The Court has jurisdiction (referred to in this Act as “Class 3” of its jurisdiction) to hear and dispose of the following—

…

(d) appeals and applications under sections 179, 181, 526 (and section 526 as applied by section 531), 574, 677 and 730 of the Local Government Act 1993,

…

22 Determination of matter completely and finally

The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.

23 Making of orders

The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate.

7. The Conveyancing Act 1919 (NSW) is not an environment and planning law under s 20(3) of the LEC Act.

Local Government Act 1993 (NSW)

8. The LG Act provides relevantly as follows:

Chapter 7 What are the regulatory functions of councils?

…

Part 2 Orders

Division 1 Giving of orders

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.

…

Orders requiring the preservation of healthy conditions

Column 1 To do what?	Column 2 In what circumstances?	Column 3 To whom?
21	To do or refrain from doing such things as are specified in the order to ensure that land is, or premises are, placed or kept in a safe or healthy condition	The land or premises are not in a safe or healthy condition	Owner or occupier of land or premises

…

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.

181 Awarding of compensation concerning orders

(1) The Land and Environment Court, on the hearing of an appeal or otherwise, has a discretion to award compensation to a person on whom an order is served for any expense incurred by the person as a consequence of the order, including the cost of any investigative work or reinstatement carried out by the person as a consequence of the order, but only if the person satisfies the Court that the giving of the order was unsubstantiated or the terms of the order were unreasonable.

(2) A claim for compensation may not be made more than 28 days after the date on which the Court gives its decision on the appeal or more than 3 months after the date of the order if an appeal is not made against the order.

(3) Compensation under this section is to be awarded against the council.

Conveyancing Act 1919 (NSW)

9. Section 177 of the Conveyancing Act 1919 (NSW) provides as follows:

Part 22 Miscellaneous

177 Duty of care in relation to support for land

(1) For the purposes of the common law of negligence, a duty of care exists in relation to the right of support for land.

(2) Accordingly, a person has a duty of care not to do anything on or in relation to land (the supporting land) that removes the support provided by the supporting land to any other land (the supported land).

(3) For the purposes of this section, supporting land includes the natural surface of the land, the subsoil of the land, any water beneath the land, and any part of the land that has been reclaimed.

(4) The duty of care in relation to support for land does not extend to any support that is provided by a building or structure on the supporting land except to the extent that the supporting building or structure concerned has replaced the support that the supporting land in its natural or reclaimed state formerly provided to the supported land.

(5) The duty of care in relation to support for land may be excluded or modified by express agreement between a person on whom the duty lies and a person to whom the duty is owed.

(6) Any such agreement—

(a) has effect in relation to any agent of the person on whom the duty lies, and

(b) has effect in relation to any successor in title of the supported land if the agreement is embodied in a registered easement for removal of support relating to that land.

(7) The right to agree to the removal of the support provided by supporting land to supported land is a right of the kind that is capable of being created by an easement.

(8) Any right at common law to bring an action in nuisance in respect of the removal of the support provided by supporting land to supported land is abolished by this section.

(9) Any action in negligence that is commenced after the commencement of this section in relation to the removal of the support provided by supporting land to supported land may be wholly or partly based on something that was done before the commencement of this section. However, this subsection does not operate to extend any period of limitation under the Limitation Act 1969.

(10) This section extends to land and dealings under the Real Property Act 1900.

(11) This section does not apply in relation to any proceedings that were commenced before the commencement of this section.

(12) A reference in this section to the removal of the support provided by supporting land to supported land includes a reference to any reduction of that support.

(13) This section binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.

Evidence

10. The Applicant’s notice of motion is supported by the affidavit of Mr Blackwell Applicant’s solicitor dated 24 November 2023, attaching the Applicant’s Amended Class 2 Application and Amended SOFC.

11. The Council’s notice of motion is supported by the affidavit of Ms Sinclair Council’s solicitor dated 28 November 2023, annexing a letter dated 23 October 2023 in which the Council detailed to the Applicant why the Court did not have jurisdiction to determine the claims raised in pars 2 and 3 of the Class 2 Application.

Order issued under s 124 the Local GovernmentAct 1993 (NSW)

12. The Council’s order is extracted and summarised below:

Northern Beaches Council is now in possession of evidence and has formed the opinion that your land and the premises is not in a safe and healthy condition.

…

13. The Reasons for the order state:

REASONS FOR THE ORDER: (s 136 of the Act)

1. Council is aware that a landslide occurred at 118B Parkes Road COLLAROY PLATEAU NSW 2097 during a period of prolonged rainfall in early March 2022.

2. 118B Parkes Road COLLAROY PLATEAU NSW 2097 is located within the Northern Beaches Council Local Government Area. The requirements of Warringah Local Environmental Plan 2011 are applicable, and the premises is identified on the associated Land Slip Risk Map.

3. Council has engaged the services of GHD to review the condition of the premises and GHD has prepared a report Ref:12564753 dated 16 September 2022, 118B Parkes Road, Collaroy – Summary of Landslide Causation, which contains recommendations to require the rectification of unsafe and unhealthy conditions at the land and premises. A copy of the GHD report has been enclosed for your assistance.

4. In its discretion, Council considers an Order is warranted in the circumstances.

14. The order requires the preparation of a report by a geotechnical engineer to satisfy the recommendations of the GHD report prepared for the Council, preparation of a structural design by a structural engineer to satisfy the GHD report recommendations and design plans by a hydraulic engineer to satisfy the GHD report within 60 days inter alia. The work identified in these reports must then be carried out in a specified timeframe.

Amended Class 2 Application

15. The parts of the Amended Class 2 Application objected to state:

…

2. A declaration that the Respondent has breached its duty of care to the Applicant pursuant to Section 177 of the Conveyancing Act and that as a result pursuant to Section 180(4)(f) of the Local Government Act the Court makes the following mandatory injunctive orders against the Respondent:

a. The Respondent shall design and undertake, in accordance with professional geotechnical engineer, hydraulic engineer and structural engineer advice, work to the unstable Northern Beaches Council land being Lot 52 DP 788811 (known as Public Reserve Collaroy Parkes Road) (“Lot 52”) as identified in the GHD Report to Warringah Council dated 18 October 2011 (ref 21/20906/BA904) sufficient to:

(i) provide a long term solution to establish an acceptable level of slope stability to Lot 52 and the fill embankment located thereon;

(ii) ensure the instability of Lot 52 and the fill embankment located thereon does not again adversely impact the southern boundary zone and associated residential infrastructure at 118B Parkes Road.

b. The Respondent shall design and undertake, in accordance with a professional geotechnical engineer and structural engineer advice, work to the boundary of Lot 52 and 118B Parkes Road sufficient to:

(i) repair damage to the southern boundary zone and associated residential infrastructure at 118B Parkes Road and SP78825 caused by the instability and landslip/failure of Lot 52 and;

(ii) provide a long term solution for an acceptable level of stability to the boundary of 118B Parkes Road and SP78825 following the landslip/failure of Lot 52.

(iii) reinstate the land and buildings to 118B Parkes Road to the condition that it [sic] they were in prior to the Respondent’s breach of s177 of the Conveyancing Act withdrawing support.

Alternatively:

c. The Respondent shall:

(i) retain Lot 52 by installing rock fall mesh backed by erosion control matting and anchored to bedrock by galvanised or double corrosion protected steel dowels in accordance with professional geotechnical engineer and structural engineer advice and design;

(ii) clear up the stormwater pipes to Lot 52, including pipes and pits feeding inappropriate overflow onto 118B Parkes Road and reinstate the outlet downturn (drainage channel) in accordance with professional hydraulic engineer’s advice and design.

(iii) reinstall the batter to Lot 52 and to 118B Parkes Road and construct a retaining wall system to the boundary of 118B Parkes Road sufficient to retain the associated residential infrastructure at 118B Parkes Road in accordance with professional geotechnical engineer and structural engineer advice and design and to reinstate the land and buildings to 118B Parkes Road to the condition they were in prior to the Respondent’s breach of s177 of the Conveyancing Act withdrawing support.

…

5. An order pursuant to Section 181 of the Local Government Act that the Respondent pay the Owners Strata Plan 78825 for:

a. any investigative work and reinstatement work carried out by the Owners Strata Plan 78825 as a consequence of the NBC September Orders or the Amended Orders made by this Court.

b. expert and legal fees incurred by the Owners Strata Plan 78825 as a consequence of the NBC September Orders or the Amended Orders made by this Court.

Amended Statement of Facts and Contentions

16. The parts of the Amended SOFC objected to state:

5.5 Section 177 and Part 3, Schedule 4A of the Conveyancing Act 1919 (NSW) is also relevant to this appeal.

5.6 Section 5B of the Civil Liability Act 2002 (NSW) is also relevant to this appeal.

5.7 The Applicant seeks a mandatory injunctive order be made against the Respondent pursuant to Section 180(4)(f) of the Local Government Act and Section 9.46(1) and 9.46(2)I of the Environmental Planning and Assessment Act as a result of the Respondent’s breach of s 177 of the Conveyancing Act.

5.8 Section 35, 36E, 36J and 53 of the Local Government Act 1993 is also relevant to this appeal.

…

10. The Respondent has breached its duty of care to the Applicant pursuant to Section 177 of the Conveyancing Act 1919 in that it has:

a. allowed Lot 52 to erode and destabilize to an extent that it failed to support the land on 118B;

b. omitted to undertake stabilising works to Lot 52 despite being notified of the instability of Lot 52 and the risk of damage to 118B in the GHD Report dated 18 October 2011 and the Richard Weber Engineer report dated 27 July 2011;

c. In the circumstances and having regard to GHD 2011 opinion and recommendations as summarised in Para 8 above, the Respondent should have taken precautions against the foreseeable risk of harm to the Applicant’s land, however the Respondent:

(i) did not address the Applicant’s request to stabilise Lot 52;

(ii) omitted to undertake stabilising works to Lot 52 despite being notified of the instability of Lot 52 and the risk of damage to 118B in the GHD Report dated 18 October 2011 and the Richard Weber Engineer report dated 27 July 2011;

(iii) required the Owners Corporation to implement a long term solution, however any works were to be contained within the Applicant’s boundary, which was not a recommendation of GHD 2011;

(iv) downplayed the risk of further harm by selectively using information “cherry-picking” from the GHD 2011 in the letter sent to the Applicant dated 2 October 2011.

d. The Respondent disregarded Douglas Partners’ expert opinion in the report on the landslide Landslip Assessment 118B Parkes Road, Collaroy Plateau dated 24 June 2022 despite Douglas Partners advising remediation measures in order of priority:

(i) Reinstatement of stormwater pipes at the rear of the Applicant’s property.

(ii) Retaining of the fill slope ‘probably by use of rock-fall mesh backed by erosion control matting and anchored into bedrock by galvanised or double corrosion protected steel dowels’.

(iii) Clearing of the Respondent’s stormwater pipes and reinstatement of the outlet downturn apron.

(iv) Retaining structures (if constructed) founded on rock requiring relatively deep piles or similar.

e. The Respondent disregarded the expert geotechnical opinion already obtained prior to GHD 2022, and incorrectly and unreasonably gave precedence to GHD 2022 in the issue of the Order despite the fact that:

(i) the author of GHD 2022 did not attend the site and did not investigate damage to 118B and Lot 52;

(ii) the author of Douglas Partners 2022 reports attended the site in March and again in June 2022 and described both causation and remediation measures;

(iii) the author of GHD 2022 has not made recommendations consistent with either GHD 2011 or Douglas Partners 2022.

f. The Respondent acquired Lot 52 after subdivision in 1986, after the fill had been placed on the slope. The Respondent subsequently failed to:

(i) remove the fill from the slope

(ii) assess, plan for and manage the landslip risk to subsequent owners of 118B Parkes;

(iii) advise the author of GHD 2011 about the circumstances and extent of the fill on Lot 52 prior to 118B development;

(iv) advise the Applicant about the circumstances and extent of the fill on Lot 52 after the 2011 slump;

(v) advise Engineers investigating the cause of the 2022 landslide about the existence and extent of the fill on Lot 52;

(vi) advise the author of GHD 2022 of the circumstances and extent of the fill on Lot 52 prior to 118B development.

g. The Respondent has allowed its land to be not safe for the general public in that:

(i) the 2022 landslide has exposed the first generation of fill consisting of concrete, bricks and rusted metal;

(ii) the 2022 landslide has exposed the steep gully adjacent to the stormwater easement and directly below the Applicant’s visitors carpark;

(iii) the Respondent’s stormwater easement is degraded with disaggregated boulders and shotcreting, and weed infestation;

(iv) unstable fill and boulders have not been stabilised by the Respondent.

h. The Respondent does not have a Reserve Action Plan (RAP) for Lot 52 as recommended in the Generic Bushland Reserves Plan of Management 2009:

(i) The Respondent has no plan to address the landslip hazard on Lot 52 even in the face of changing pressure caused by climate change;

(ii) The Respondent has no plan to manage the increasing volume of water from Parkes Rd through the easement discharging onto Lot 52, which poses further risk of landslip;

(iii) The Respondent has no plan to restore areas of erosion, in particular degraded areas in the stormwater easement channel and the natural watercourse below;

(iv) The Respondent has no plan to address the threats to native biodiversity caused by the instability on Lot 52;

(v) The Respondent has no plans to regenerate the native bushland on Lot 52 to assist landslip risk mitigation.

11. The Respondent’s breach of s 177 and the instability and landslip to Lot 52 was the cause in full or in part to the instability and structural inadequacy to 118B.

12. The Respondent has breached the terms and conditions of the NBC 2m Easement to Drain Water over 118B in that it has:

a. failed to construct, repair and maintain pipes, channels and ditches in the easement;

b. caused the concentration of water and nuisance to 118B;

c. caused the ground of 118B to be eroded by water and the respondent’s stormwater;

d. caused the ground of 118B to be saturated by the respondent’s stormwater causing it to slump and fail;

e. become liable to the Applicant in nuisance and breach of the terms and conditions of the easement as a result of Para (a)-(d) above.

13. The Respondent’s breach of the terms and conditions of the NBC 2m Easement to Drain Water was the cause in full or in part to the instability and structural inadequacy to 118B.

14. As a result of instability and structural inadequacy being caused to 118B by the Respondent and its:

a. breach of Section 177 of the Conveyancing Act;

b. breach of the terms and conditions of the NBC 2m Easement;

c. negligence and nuisance;

in accordance with Section 181 Local Government Act an order should be made awarding the Applicant compensation for all expenses incurred by the Applicant as a result of the NBC September Order as the NBC September Order is unreasonable as detailed in Para 10, 11, 12 and 13 above.

15. Further and in the alterative as a result of the Respondent’s [sic] breach of its duty of care, negligence and nuisance detailed in Para 10, 11, 12 and 13 above, it is appropriate for the Court to make mandatory injunctive orders pursuant to Section 180( 4 )(f) of the Local Government Act and Section 9.46(1) and (2) of the Environmental Planning and Assessment Act against the Respondent requiring the Respondent to reinstate support to 118B and to rectify the damage caused to 118B by Lot 52and/or the Respondent’s negligence as follows:

That within 6 months of this order:

a. The Respondent shall design and undertake, in accordance with professional geotechnical engineer, hydraulic engineer and structural engineer advice, work to the unstable Northern Beaches Council land being Lot 52 DP 788811 (known as Public Reserve Collaroy Parkes Road) (“Lot 52”) as identified in the GHD Report to Warringah Council dated 18 October 2011 (ref 21/20906/BA904) sufficient to:

(i) provide a long term solution to establish an acceptable level of slope stability to Lot 52 and the fill embankment located thereon;

(ii) ensure the instability of Lot 52 and the fill embankment thereon does not again adversely impact the southern boundary zone and associated residential infrastructure at 118B Parkes Road.

b. The Respondent shall design and undertake, in accordance with a professional geotechnical engineer and structural engineer advice, work to the boundary of Lot 52 and 118B Parkes Road sufficient to:

(i) repair damage to the southern boundary zone and associated residential infrastructure at 118B Parkes Road and SP78825 caused by the instability and landslip/failure of Lot 52 and;

(ii) provide a long term solution for an acceptable level of stability to the boundary of 118B Parkes Road and SP78825 following the landslip/failure of Lot 52.

(iii) reinstate the land and buildings to 118B Parkes Road to the condition that it they were in prior to the Respondent’s breach of s 177 of the Conveyancing Act withdrawing support.

Alternatively:

c. The Respondent shall:

(i) retain Lot 52 by installing rock fall mesh backed by erosion control matting and anchored to bedrock by galvanised or double corrosion protected steel dowels in accordance with professional geotechnical engineer and structural engineer advice and design:

(ii) clear up the stormwater pipes to Lot 52 including pipes and pits feeding inappropriate overflow onto 118B Parkes Road and reinstate the outlet downturn (drainage channel) in accordance with professional hydraulic engineer’s advice and design.

(iii) reinstall the batter to Lot 52 and to 118B Parkes Road and construct a retaining wall system to the boundary of 118B Parkes Road sufficient to retain the associated residential infrastructure at 118B Parkes Road in accordance with professional geotechnical engineer and structural engineer advice and design and to reinstate the land and buildings to 118B Parkes Road to the condition they were in prior to the Respondent’s breach of s177 of the Conveyancing Act withdrawing support

Issue 1: Absence of jurisdiction

Applicant’s submissions

17. In its Claim, the Applicant seeks mandatory injunctive orders against the Respondent for the following reasons:

1. The Respondent is the landowner and the land manager of Lot 52;

2. There is no doubt that the fill embankment on Lot 52 (Fill) is unstable and has eroded and slipped over a long time, it being 50 years since it was placed on the slope;

3. Water acting on this Fill has caused Lot 52 to slip in at least four documented events;

4. Australian Geomechanics GeoGuides for slope management and maintenance referred to in E10 Warringah LEP 2011 advise of the critical part that water plays in relation to landslide occurrence and provides guidelines for risk assessment; and

5. Warringah LEP 2011, SEPP 19 Bushland and ss 35, 36E, 36J and 59A of the LG Act all govern the management of the land and the stormwater easement on Lot 52, for which the Respondent is solely responsible.

18. One jurisdictional basis the Applicant relies on is the Council’s duty to support the Applicant’s land, relying on s 177 of the Conveyancing Act, the failure of which duty is part of the overall issues arising between the parties. The Applicant has amended its claim to no longer press for damages for negligence or breach of statutory duty as it accepts that the LEC does not have jurisdiction to entertain such a claim in light of National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 (Stables). Section 180(4)(f) of the LG Act provides jurisdiction for the Court to make an order which can encompass the relief sought by the Applicant being a mandatory injunction requiring the Council to undertake work on its land Lot 52 to ensure support for the Applicant’s land. The basis for making such an order is the enforcement of the duty of care provided by s 177 of the Conveyancing Act which the Council owes to the Applicant. The Amended Class 2 Application and Amended SOFC also address s 5B of the Civil Liability Act 2005 (NSW) which the Court also has jurisdiction to consider given s 180(4)(f).

19. The facts and issues raised by the Order can be argued in Class 2 of the Court’s jurisdiction, see Lawrence v Inner West Council [2019] NSWLEC 46 (Lawrence) at [54].

20. Under s 18 of the LEC Act the Court has jurisdiction in Class 2 to hear appeals in relation to s 180 of the LG Act. Section 180(4)(f) provides a wide power to make other orders, see Kosic v Queanbeyan City Council (Land and Environment Court, 26 November 1993, unrep).

21. The Conveyancing Act and Civil Liability Act can be raised as ancillary to matters which are within the Court’s jurisdiction, as provided by s 16(1A) of the LEC Act: see N Stephenson Pty Ltd v RTA of NSW (1994) 83 LGERA 248. Sections 22 and 23 of the LEC Act also provide a basis for the Court’s jurisdiction.

Council’s submissions

22. The Court has no jurisdiction to hear the claim made in reliance on s 177 of the Conveyancing Act: see Stables at 580, Van Tonder v Hodgkinson [2012] NSWLEC 86 (Van Tonder) at [22]-[26].

23. Section 180(4)(f) provides no basis for the Court to have jurisdiction, it permits orders to be made in relation to the order issued under s 124 of the LG Act by the Council. It does not enable jurisdiction to make orders addressing matters entirely different to the subject matter of an order. The orders sought by the Applicant seek to have work undertaken on the Council’s land, matters unrelated to the order.

24. The Land and Environment Court’s “ancillary jurisdiction” under s 16(1A) of the LEC Act was described by Pearlman J in NTL Australia Pty Ltd v Minister for Land and Water Conservation (2001) 112 LGERA 403; [2001] NSWLEC 5 (NTL Australia) at [28], to the following effect:

1. Although s 16(1A) amplifies to some extent the jurisdiction of the Land and Environment Court, it operates only in relation to a matter which is ancillary, that is, incidental, accessory or auxiliary. Such matters within the Court’s ancillary jurisdiction are matters which “must be resolved as part of an accessory or ancillary subservient function in the course of determining the matter within jurisdiction”; and

2. Section 16(1A) does not operate to confer jurisdiction on the Court in relation to a matter which is separate to and independent of the matter properly within jurisdiction, such as a claim for damages for tort or trespass.

25. No matter ancillary to the Court’s jurisdiction is identified and s 16(1A) does not assist the Applicant’s case.

No jurisdiction

26. In Dolton v Eurobodalla Shire Council [2020] NSWLEC 141 at [20] Pepper J cited NA & J Investments Pty Ltd v Minister Administering Water Management Act 2000 (2011) 181 LGERA 166; [2011] NSWLEC 51 as follows:

[20] In NA & J Investments Pty Ltd v Minister Administering Water Management Act 2000 [2011] NSWLEC 51; (2011) 181 LGERA 166 Craig J relevantly said (at [14] – [18]):

…

18 When the jurisdiction of the Court to entertain a particular cause of action is challenged, the Court is required to satisfy itself that it has jurisdiction before proceeding further with the hearing of the proceedings (R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 at 215 per Gibbs J; National Parks & Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 585; 71 LGRA 286 at 297 per Kirby P). Moreover when that question is raised, it is incumbent upon the party invoking the Court’s jurisdiction to demonstrate that such jurisdiction exists (Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404 at 426; Meehan v Commissioner of Police (1999) 47 NSWLR 284 at [4]).

27. The Applicant has the onus of demonstrating jurisdiction exists and has not.

28. Concerning s 177 of the Conveyancing Act, I am bound by the Court of Appeal in Stables which addressed directly the claim the Applicant purports to make in alleging a duty of care in reliance on s 177 of the Conveyancing Act. Section 177 is expressed in the chapeau as applying in relation to the common law of negligence. The Court has no jurisdiction to entertain that part of the Applicant’s claim. This was also confirmed in Van Tonder at [22]-[26] decided after Stables and the later introduction of s 16(1A) in the LEC Act.

29. While the Civil Liability Act is referred to in the Amended SOFC no basis identifying how the Court has jurisdiction in that regard was identified. Given the reasoning in Stables the same conclusion would apply also to the claim made in reliance on the Civil Liability Act. Neither Act is identified as an environment and planning law in s 20(3) of the LEC Act.

30. The Applicant appeared to submit that because it was not seeking damages in relation to a breach of a statutory duty or negligence that the Court could nevertheless have jurisdiction in relation to these matters in light of s 180(4)(f) of the LG Act. The reasoning was not clear and the power conferred on the Court to make an order cannot be a basis for conferring jurisdiction where it does not otherwise exist.

31. No authority supporting the Applicant’s reliance on s 180(4)(f) has been provided and that is very likely to be because not such application has been made before. Apart from submitting the exercise of discretion to make orders under s 180(4)(f) is wide, which I accept and has been observed in many cases including Kosic, I did not understand the Applicant to have any other legal basis for submitting that s 180(4)(f) could operate in this way. Stating that this section provides a means for all the matters in issue to be brought before the Court in one set of proceedings is simply not a basis for establishing that the Court has jurisdiction in relation to contested legal issues.

32. Sections 16(1A), 22 and 23 of the LEC Act separately and collectively do not provide any legal basis for the Applicant’s claims in the contested parts of the Amended Class 2 Application and Amended SOFC. I do not accept the Applicant’s submission that these matters under the Conveyancing Act and the Civil Liability Act are ancillary in a legal sense to any matter within the Court’s jurisdiction and NTL Australia does not support the Applicant’s argument, indeed NTL Australia at [28] is contrary to it. That fundamental factual issues for the Applicant are in dispute which it wishes to litigate in legal claims does not confer jurisdiction on the Court. The Court does not need to resolve the contested issues in relation to which it does not have jurisdiction in order to consider the Class 2 appeal currently before it.

33. Avoidance of multiplicity of proceedings cannot result in the conferral of jurisdiction where it does not exist. Lawrence does not support the Applicant’s case. That judgment considered whether to allow a Class 2 application to be changed to a Class 3 application seeking an order under s 181 of the LG Act. That passing reference was made in [54] of Lawrence to s 177 of the Conveyancing Act is irrelevant to the Applicant’s argument in relation to jurisdiction.

34. Accordingly prayer 2 of the Application and 5.5-5.7 of the Amended SOFC should be struck out.

35. Paragraph 5.8 of the Amended SOFC recites sections of the LG Act concerning community land, being ss 35, 36E and 36J. It is unclear why these are set out and they did not appear to have any role to play in the Applicant’s legal argument. Section 53 is no longer relied on. This paragraph should be struck out. Paragraphs 10 and 11 alleging breach of duty of care in reliance on s 177 of the Conveyancing Act are struck out also.

36. Paragraphs 12 and 13 introduce a new topic not identified in the Amended Class 2 Application alleging the breach of the terms and condition of an easement to drain water. The legal basis for this is not identified and I was not able to discern it from the Applicant’s submissions. Reference was made to s 59A of the LG Act ‘Ownership of water supply, sewerage and stormwater drainage works’. How that supports these paragraphs is unclear. No basis in the LEC Act or any other Act for founding jurisdiction was identified and these paragraphs are also struck out.

37. Paragraph 14 summarises the claims which I have otherwise found are not within the Court’s jurisdiction and should be struck out.

38. Paragraph 15 seeks to rely on s 180(4)(f) of the LG Act to found mandatory injunctive orders requiring work on the Council’s land and there is no legal basis to do so. It should also be struck out.

Issue 2: Section 181 Local Government Act 1993 (NSW) claim

39. The Applicant submits that it is appropriate now to make a claim in these Class 2 proceedings for work done and expenses incurred as provided by s 181 of the LG Act. The claim is identified in par 5 of the Amended Class 2 Application. The Applicant submits that as s 184 of the LG Act states that the Court’s powers are not limited by this Division the Court has the power under the LEC Act to award compensation pursuant to s 181 in Class 2 proceedings.

40. Claims under s 181 of the LG Act are expressly provided for in Class 3 in s 19(d) of the LEC Act. For the reasons given by the Council par 5 should be struck out. The basis for such a claim is yet to arise and may not arise depending on the outcome of the Class 2 Application. If pursued the appropriate course would be to commence Class 3 proceedings in due course. Lawrence is an example of an application to amend a proceeding to change from a Class 2 to a Class 3 proceeding to enable a claim under s 181, and that may be an appropriate course available to the Applicant in the future. Once again the Applicant’s desire to have all the issues it considers need to be addressed or which might need to be addressed in one set of proceedings is not a valid basis for allowing prayer 5 to remain. I do not consider the interests of justice in achieving the just, quick and cheap resolution of matters is served by allowing prayer 5 to remain and it should be struck out.

Issue 3: Transfer of proceeding to Supreme Court

41. The Applicant made an application for an order under s 149B of the Civil Procedure Act 2005 (NSW) (CP Act) for the Amended Class 2 Application and Amended SOFC to be transferred to the Supreme Court if I consider that the Court lacks jurisdiction in relation to the objected parts of the Applicant’s case, as I have found above. This application was opposed by the Council.

42. Sections 149B, 149D and 149E of the CP Act state:

Division 2A Transfer of proceedings between Supreme Court and Land and Environment Court

…

149B Transfer of proceedings between Supreme Court and Land and Environment Court

(1) If either the Supreme Court or the Land and Environment Court is satisfied, in relation to proceedings before it, that it is more appropriate for the proceedings to be heard in the other court, it may, on application by a party to the proceedings or of its own motion, order that the proceedings be transferred to the other court.

...

149D Proceedings after transfer

(1) Subject to the rules of court applicable in the transferee court—

(a) any proceedings with respect to which a transfer order takes effect continue in the transferee court—

(i) as if the proceedings had been duly commenced in the transferee court on the date on which they were commenced in the transferor court, and

(ii) as if any cross-claim in the proceedings had been duly made in the transferee court on the date on which it was made in the transferor court, and

(b) any proceedings with respect to which a transfer order under section 149B (2) takes effect are to be heard together with, and are taken to form part of, the related proceedings in the transferee court.

…

149E Jurisdiction of transferee court

The transferee court has, and may exercise, all of the jurisdiction of the transferor court in relation to any proceedings to which a transfer order relates, including jurisdiction to determine any question arising in any such proceedings.

43. There is no dispute that the Supreme Court has jurisdiction to consider the Applicant’s claim under s 177 of the Conveyancing Act and presumably the Civil Liability Act. The Applicant accepted it could commence such proceedings at any time (there was no reference to any statutory or other time limits applying).

44. The Applicant submitted that a transfer would enable all matters in issue between the parties to be litigated in one set of proceedings. If no transfer occurs the Applicant is potentially up for three sets of proceedings, the Class 2 Application, a Supreme Court proceeding and a Class 3 proceeding in relation to s 181 of the LG Act.

45. The decision to transfer proceedings to the Supreme Court is discretionary, based on a consideration under s 149B(1) of whether it is more appropriate for a proceeding to be heard in that court. Under s 149E of the CP Act the jurisdiction of the transferor court in relation to the proceedings is vested in the transferee court. The discretion is wide in that no specific statutory considerations are specified in the CP Act in determining whether a transfer should occur, mindful always of the overriding consideration in s 56 of the CP Act of facilitating the just, quick and cheap resolution of matters before a court.

46. On balance I consider a transfer is not appropriate. The Class 2 Application responds to an order issued by the Council under the LG Act because of unsafe conditions on the Applicant’s land. The Court is conferred with express jurisdiction to determine such matters in a merits assessment context where the rules of evidence do not apply. A judge, or a commissioner with appropriate expertise, of the Court may be listed to hear the matter. The Court has procedures in place to enable the prompt consideration of such matters, such as the conciliation process under s 34 of the LEC Act. A conciliation conference between the parties has been set down in April 2024.

47. A tort claim founded on negligence or a breach of a statutory duty by its legal nature is quite different to a Class 2 appeal of an order issued under the LG Act. A tort claim will proceed differently reflecting inter alia the discharge of the onus of proof borne by the Applicant. While at a general level there may be similar facts concerning how the issues of land stability have come about on the two neighbouring sites, the legal issues potentially raised are quite different. It is not immediately apparent how the Class 2 Application and a tort claim could proceed together even allowing for the transfer of jurisdiction enabled by s 149E of the CP Act.

48. The commencement of proceedings in the Supreme Court will inevitably require repleading of the Applicant’s case, the legal basis for which is unclear in the Amended Class 2 Application and Amended SOFC. I consider it is likely that given the potential complexity of the Applicant’s case a transferred proceeding will take longer in the Supreme Court than the Class 2 Application currently before the Court.

49. While multiplicity of proceedings is not desirable such an outcome is not automatic. If the Applicant is successful in its Class 2 Application the order can be revoked and it will not be liable for any costs as result of the order. Whether the Applicant will commence Supreme Court proceedings did not appear to be certain. The Applicant will no doubt consider its position after this judgment in that regard. As already observed above whether Class 3 proceedings are commenced seeking an order under s 181 of the LG Act is also not a matter that can presently be known.

50. Weighing up these various factors I consider a transfer of the Amended Class 2 Application to the Supreme Court is not appropriate.

51. I will make orders which deal with both notices of motion.

Orders

52. The Court makes the following orders in respect of the Applicant’s notice of motion dated 24 November 2023 and the Council’s notice of motion dated 28 November 2023:

1. that Application Class 2 filed on 3 October 2023 be struck out;

2. that the Statement of Facts and Contentions filed on 30 October 2023 be struck out;

3. grant the Applicant leave to file and serve an Amended Class 2 Application in the form set out in Annexure A to the affidavit of Craig Rex Blackwell affirmed 24 November 2023 (Blackwell Affidavit) except for paragraphs 2 and 5 of the proposed Amended Class 2 Application;

4. grant the Applicant leave to file and serve an Amended Statement of Facts and Contentions in the form set out in Annexure B to the Blackwell Affidavit except for paragraphs 5.5, 5.6, 5.7, 5.8, 10, 11, 12, 13, 14 and 15 of the proposed Amended Statement of Facts and Contentions;

5. Costs reserved.

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Decision last updated: 23 February 2024