The NSW Land and Environment Court is a specialist environmental court of superior record, established on 1 September 1980 by the Land and Environment Court Act 1979 (the Court Act). The Court’s jurisdiction traverses the gamut of civil and criminal matters relating to planning, environmental, land and mining, as generally set out in ss17-21C of the Court Act. The Court does not prima facie have jurisdiction to hear and determine monetary claims for damages associated with trespass, nuisance, misrepresentation, negligence and related tortious actions. However, the Court Act provides that where a matter is “ancillary” to a matter within the Court’s jurisdiction, the Court will have jurisdiction to hear that matter, including claims for monetary damages in certain circumstances. In the recent decision of Micheal Harold Connor v Smith Hire Service (Casino) Pty Ltd  NSWLEC 7, the Court reviewed the relevant authorities regarding the Court’s power to hear and determine damages claims and the Court’s power to transfer such claims to the Supreme Court.
Micheal Harold Connor v Smith Hire Service (Casino) Pty Ltd  NSWLEC 7
In the case of Micheal Harold Connor the Applicants alleged that, due to the extensive stockpiling of extracted material on the Respondent’s neighbouring property (being an open pit quarry), a landslip occurred resulting in substantial damage to the Applicants’ property. The Applicants sought damages and aggravated damages for trespass to land, damages for nuisance, and damages for negligence.
The Applicants’ pleadings sought the following relief, amongst other things:
- damages pursuant to ss123 and 124 of the Environmental Planning and Assessment Act 1979 (EPA Act).
- damages, including aggravated damages, for trespass to land.
- damages for nuisance by reason of the pressure on and encroachment of soil onto the Applicants’ property from the first Respondent’s property.
- damages for negligence.
The Applicants subsequently filed a notice of motion seeking to transfer “so much of the proceedings as do not seek relief under ss123 and 124 of the EPA Act, or alternatively the whole of the proceedings, be transferred to the Supreme Court.” The Respondent’s position was that the whole of the proceedings should be transferred to the Supreme Court.
The Court observed that the relief sought under subparagraph (a) clearly fell within the Court’s Class 4 jurisdiction set out in s20 of the Court Act, but that the relief sought in subparagraphs (b)-(d) were common law claim founded in the law of tort, being claims that were not within the jurisdiction of the Court.
The Court observed that there is well established authority that the Land and Environment Court does not have the jurisdiction to hear claims in tort simpliciter: National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 at 580-581.
The Court went on to consider its power to deal with such claims under its ancillary powers set out in s16(1A) of the Court Act, which provide:
16(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.
The Court’s ancillary jurisdiction
In considering the issue of the Court’s ancillary jurisdiction, Justice Robson cited Justice Talbot in N Stephenson Pty Ltd v Roads and Traffic Authority (NSW) (1994) 83 LGERA 248 at 266:
…the role of something that is ancillary is to provide assistance to achieve a primary objective to which it is subservient. It does not have a separate or independent existence. Its purpose is to facilitate the achievement of the principal claim.
Justice Robson then referred to the commentary of Justice Pearlman in NTL Australia Pty Ltd v Minister for Land and Water Conversation  NSWLEC 5, stating at :
Although s 16(1A) amplifies to some extent the jurisdiction of this Court, it operates only in relation to a matter which is ancillary, that is, incidental, accessory or auxiliary … Section 16(1A) does not operate to confer jurisdiction on this Court in relation to a matter which is separate to and independent of the matter properly within its jurisdiction, such as a claim for damages for tort or trespass…
The Court held that, having regard to the Court’s approach to the scope of s16(1A) of the Court Act, the tort claims in the current proceedings – while arising out of the same facts as the claims associated with the claims made under the EPA Act (being claims squarely within the Court’s jurisdiction) – were “not ancillary” to these claims made under the EPA Act.
The Court held that it was not necessary to determine the tort claims in order to determine the claims made under ss123 and 124 of the EPA Act. Rather, the tort claims were presented by the Applicants as claims in the alternative to the other claims “and in that sense are quite separate from and independent” of the claims brought under the EPA Act.
Transfer of proceedings
The Applicants contended that the Supreme Court could not hear the claims made under the EPA Act by virtue of s71 of the Court Act, and that the LEC could not hear the claims made in tort, and that therefore the proceedings should be split between the two courts.
However, rather than transferring the claims made under the EPA Act to the Supreme Court the LEC should, the Applicants submitted, stay the claim made in tort until it determined the claims made under the EPA Act. That step would only be necessary if the Applicants’ claims under the EPA Act were unsuccessful, the Applicants contended.
Alternatively, the Applicants contended that if the Court decided to transfer the tort claims to the Supreme Court, the Applicants would apply to the Supreme Court to stay those proceedings pending the determination by the Land and Environment Court of the claims made under the EPA Act. Importantly, the Applicants made it clear that they were reliant on the tort claims being transferred as opposed to being struck out by the Court, as the Applicants would then be time barred from commencing proceedings in the Supreme Court.
The Court did not accept the restrictive interpretation adopted by the Applicants in connection with s71 of the Court Act. The Court referred to s149B(1) of the Civil Procedure Act 2005 (CP Act), which provides:
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 arty to the proceedings or of its own motion, order that the proceedings be transferred to the other court.
The Court observed, importantly, that s149E of the CP Act vests the transferee court with “all of the jurisdiction” of the transferor court in relation to the proceedings the subject of the transfer. It followed that, if the Land and Environment Court was satisfied that it was more appropriate for proceedings to be heard in the Supreme Court, the Supreme Court would be vested with jurisdiction to address any and all matters relating to the proceedings, including claims made under the EPA Act.
The choice before the Court was therefore to split the case or refer the entirety of the proceedings to the Supreme Court.
In relation to splitting the case, the Court observed:
Dealing with the first option, it is questionable whether s149B of the CP Act indeed allows for the transfer of part only of proceedings. Adopting a plain language approach to the section militates against this construction, and the applicants were unable to put forward any authority in support of the position. In any case, both options proposed by the applicants have the practical effect of splitting the Proceedings – a result which goes against the just, quick and cheap resolution of the Proceedings (see s56 of the CP Act).
The Court observed that the tort claims and those made under the EPA Act arise out of the same factual scenarios, involve the same parties and rely on the same evidence, the interests of justice lie in favour of avoiding duplication and hearing the two claims together.
The Court held that, once it was established that it was preferable to hear the tort claims and the claims made the EPA Act together – and not otherwise split the claims – it was evident that the Land and Environment Court could not be the appropriate forum to determine the proceedings. As such, the Court held, it was more appropriate to transfer the proceedings to the Supreme Court, vesting that Court with all the necessary jurisdiction to deal with the claims made under the EPA Act, in accordance with s149E of the CP Act.
The decision of Micheal Harold Connor is a useful guide as to how the Land and Environment Court may approach a case involving a combination of planning-related matters and monetary damages based on the law of tort. The following considerations would appear to be relevant:
- whether different or additional parties are involved in the tort claims.
- whether the factual matrix of the proceedings as a whole are the same or whether additional or different facts – and evidence – are associated with the tort claim.
- whether the monetary claim is pleaded in the alternative to the substantive matters claimed under the EPA Act.
- whether the monetary claim, though based on the same general facts and the same parties, was not genuinely incidental or auxiliary to the planning matters in dispute.
Finally, in the decision of Micheal Harold Connor the Land and Environment Court declined to make orders in relation to the costs of the transfer application, on the grounds that s149D(3) of the CP Act requires transferee court to make orders in relation to the issue of the costs of any transfer application, not the transferor court.