Insufficient Reasons in Orders

18 July 2016

McCudden v Cowra Shire Council [2016] NSWLEC 14

Statutory orders are routinely drafted by Councils, and received by constituents of Councils, throughout NSW.

The recent case of McCudden v Cowra Shire Council [2016] NSWLEC 14, a decision of Craig J, contains some interesting discussion by the Court regarding orders, both for those who draft them and those who may receive them.

The case concerned Mr McCudden, who for many years had kept around 200 cats on his premises as part of a shelter for abandoned cats, known as Camp Kitty. The Council issued an order to him under s 124 of the Local Government Act 1993 (LG Act), which in summary required that no more than 33 cats be kept on the land. Order 18 under s 124 of the LG Act allows a Council to issue an order to an occupier of premises where animals kept on the premises are of an inappropriate kind or number or are kept inappropriately.

Mr McCudden appealed to the Land and Environment Court against the Order (Class 1 of the Court’s jurisdiction), and sought determination of preliminary points of law, which challenged the validity of the order. The grounds of challenge to validity in summary were:

  1. The reasons for the orders were insufficient at law; and
  2. The reasons could not at law be a basis for giving of the order.

Reasons for orders are required to be given under the LG Act, as is the case for orders under the Environmental Planning and Assessment Act 1979 (EPA Act).

The reasons given in the order to Mr McCudden were as follows:

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.

Key issues and findings were:

  1. It was argued that the first two reasons were inadequate as they merely recited the circumstances for enlivening the power for issuing an order. Craig J held in summary that orders should be read as a whole having regard to practical considerations, such that the first two reasons were still sufficient (applying the Court of Appeal’s decision in J & J O’Brien Pty Ltd v South Sydney City Council [2002] NSWCA 259; 121 LGERA 223 at [48]);
  2. Mr McCudden argued that the decision to issue the order was founded upon an irrelevant consideration, as the welfare of cats was not a relevant consideration under the LG Act. This argument was rejected. There was nothing in the LG Act which prevented the welfare of animals from being considered when deciding whether to issue an order;
  3. The reasons provided were sufficient – the order read as a whole exposed the rationale for giving the order;
  4. A Council in a Class 1 appeal against an order can lead further evidence to enhance the reasons given; and
  5. McCudden also argued that the order was invalid due to insufficiency of reasons, meaning that it was the end of the matter. Several previous decisions involved findings to this effect. Ultimately Craig J did not need to resolve this issue as the reasons had been found to be sufficient. However, he held that an order which lacked sufficient reasons would be unlawful, rather than invalid, and therefore could still enliven the jurisdiction of the Court to entertain an appeal.

Some key points for consideration in light of this decision are as follows.

On the one hand the case could be seen as providing for less of an emphasis on the reasons provided for an order by those who draft them, given that various arguments regarding insufficiency of reasons failed. However, this is not recommended. What the case also illustrates is the technical legal arguments which can arise in terms of challenging an order based upon insufficiency of reasons.

Whilst the Council was ultimately successful on the preliminary points of law in the McCudden case, this should not be viewed as rationale for only providing brief, undetailed reasons such as merely re-stating the circumstances for enlivening the power. The more detailed the reasons, the less chances of litigation. Detailed reasons also afford the recipient a fair opportunity to understand the basis for why their rights are being impacted upon by the order.

As a general rule of thumb, if drafting an order, think about the merits reasons for issuing the order (over and above the circumstances that enliven the power), which could include environmental and planning impacts (as well as animal welfare, as found in the McCudden case).

For example, if the order concerns issues related to absence of development consent or failure to obtain development consent, a good rule of thumb would be to treat the unlawful development as if it were a DA seeking consent for what has occurred, then consider as potential reasons for the order the merits issues which would arise if one were assessing the unlawful development as a DA under s 79C of the EPA Act.

Lastly, if you are the recipient of an order which contains no reasons, or reasons which could be viewed as inadequate, detailed thought should be given to a strategy which seeks to appeal against the order and argue that it is invalid based upon the insufficiency of reasons (having regard to previous decisions which indicate invalidity). McCuddensuggests that this strategy will fail.

This article was written by Jane Hewitt, Partner and Philip Brown, Special Counsel.

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