White v Sutherland Shire Council

[2019] NSWCATAD 100

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	White v Sutherland Shire Council [2019] NSWCATAD 100
Hearing dates:	Hearing on the papers
Date of orders:	31 May 2019
Decision date:	31 May 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Isenberg, Senior Member
Decision:	(1) The Application for Review is dismissed.
Catchwords:	JURISDICTION – no identified enabling legislation
Legislation Cited:	Administrative Decisions Review Act 1997 Children and Young Person’s (Care and Protection) Regulation 2012 Civil and Administrative Tribunal Act 2003 Deer Act 2006 Environmental Planning & Assessment Act 1979 Local Government Act 1993 Strata Scheme Management Act 2018
Cases Cited:	Nil
Category:	Principal judgment
Parties:	Peter White (Applicant) Sutherland Shire Council (Respondent)
Representation:	P White (Applicant in person)   Sutherland Shire Council (Respondent in person)
File Number(s):	2019/00053647
Publication restriction:	Nil

REASONS FOR DECISION

1. On 12 February 2019 Peter White, the Applicant filed an Application for Review in which he named Sutherland Shire’s Mayor as Respondent. Subsequently, the Tribunal ordered that the proper Respondent was Sutherland Shire Council (the Council).

2. The Applicant contended that the Respondent had refused to take action against another unit owner in the apartment block where he lives who had engaged in short term holiday rental of his property, described as Short Term Rental Accommodation (STRA). The Applicant alleged that the STRA was in breach of planning laws. Specifically, the Applicant sought an order that the Tribunal ban STRA activities by the unit owner the subject of his complaint to the Council.

3. The Respondent has sought summary dismissal of the Application for Review under s 55 of the Civil and Administrative Tribunal Act 2003 (the CAT Act), on the basis that the Tribunal has no jurisdiction to determine the matters raised by the Applicant.

4. The Application purported to be made under the Local Government Act 1993 (LG Act) and the Strata Scheme Management Act 2018, the latter Act not yet having been proclaimed. Under the LG Act, the Tribunal only has jurisdiction to review a limited number of administrative decisions made under that Act, none of which is the subject of the Application for Review.

5. Any enforcement action for the alleged breach of planning laws is governed by the Environmental Planning & Assessment Act 1979. That Act confers jurisdiction over decisions made under that Act to the Land and Environment Court, and not to this Tribunal.

6. When the Respondent sought clarification of the legislation relied on by the Applicant, on 4 April 2019 he informed the Council about children being left unattended in the unit by short term renters and invited attention to clause 7 of the Children and Young Person’s (Care and Protection) Regulation 2012. This clause, however, relates to review of decisions of the Children’s Guardian. The Applicant also made references to sections 163 and 402 of the Local Government Act and, curiously, the Deer Act 2006. None of the above legislation is relevant to the circumstances of this case.

7. The Applicant also referred to the Administrative Decisions Review Act 1997 (ADR Act). That Act does not confer jurisdiction on the Tribunal; it merely identifies the legal principles that apply when the Tribunal has administrative review jurisdiction in relation to a particular decision.

8. The CAT Act sets out the Tribunal’s jurisdiction. One of those jurisdictions is the “administrative review jurisdiction”: s 29(2)(b) CAT Act. The Tribunal has administrative review jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under the  ADR Act: s 30 CAT Act, and  s 9 ADR Act. Section 30 of the CAT Act provides that, with respect to the Tribunal’s administrative review jurisdiction, in effect that the Tribunal has no jurisdiction unless there is a legislative instrument conferring jurisdiction. Therefore, in order to determine whether the Tribunal has jurisdiction to review a particular decision, reference must be made to the legislation governing the original decision. While there are many pieces of legislation which give jurisdiction to the Tribunal, however, they may not give jurisdiction for every decision made under each piece of legislation. For example, s 16 of the Deer Act 2006, to which the Applicant referred, specifically provides for review of a particular type of decision made under that Act.

9. I could find no legislation relevant to the complaints of the Applicant that would confer jurisdiction on the Tribunal. In those circumstances, the Application for Review is dismissed. I observe that in his submission to the Tribunal received on 15 April 2019 the Applicant also sought dismissal of his Application for Review; apparently his body corporate is looking to address STRA with respect to the unit complex as a whole. It is unfortunate that the Applicant’s request for dismissal was not highlighted by the parties or identified by the Tribunal earlier so as to obviate the necessity for this decision.

10. The Respondent also contended that the Applicant is out of time to bring any application to the Tribunal. The Applicant stated in his Application for Review filed on 12 February 2019 that he had been notified of the Respondent's decision, the subject of the Application for Review, on 10 April 2018. Section 40 of the CAT Act requires that an Application for Review be made in the time and manner prescribed by the enabling legislation which confers jurisdiction. The Respondent submitted that “none of the enabling legislation allows [an Applicant] to file an Application [for Review] 10 months after the original decision, unless there are some exceptional circumstances explaining the delay. There are no exceptional circumstances in this case.” The submission, in my view, is unhelpful in circumstances where there is no relevant “enabling legislation”.

11. In anticipation of a finding that the Tribunal lacks jurisdiction to consider the Application for Review, the Respondent also sought an order that the Applicant pays the Respondent's costs of these proceedings pursuant to s 60(3)(e) of the CAT Act, that proceedings which were frivolous or vexatious or otherwise misconceived or lacking in substance. The Respondent provided a schedule of its professional costs in relation to the matter, but made no detailed submissions in relation to costs.

12. In the ordinary course, each party to proceedings before the Tribunal pays its own costs: s 60(1) CAT Act. Only in special circumstances may costs be awarded: s 60(2) CAT Act. I see no reason for departure from the ordinary course, and I make no order as to costs.

DECISION

1. The Application for Review is dismissed.

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

Registrar

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

Registrar

Decision last updated: 31 May 2019