Barton v Orange City Council (No 2) - [2008] NSWLEC 123

Land and Environment Court

of New South Wales

CITATION: Barton v Orange City Council (No 2) [2008] NSWLEC 123

PARTIES:
APPLICANTS:
Gregory John Barton and Amanda Wendy Barton
FIRST RESPONDENT:
Orange City Council
SECOND RESPONDENT:
Kerry Westgeest

FILE NUMBER(S): 40535 of 2007

CORAM: Biscoe J

KEY ISSUES: Costs :- Judicial Review - development consent declared invalid without contest and consequential contested demolition order made - council filed submitting appeareance - whether council liable in the circumstances for the other parties' costs of the proceedings.

LEGISLATION CITED: Land and Environment Court Rules 2007 r 3.7

CASES CITED: Cutcliffe v Lithgow City Council (2006) 147 LGERA 330
Grant v Kiama Municipal Council [2006] NSWLEC 70
Latoudis v Casey (1990) 170 CLR 534
Maurici v Chief Commissioner of State Revenue (No 8) (2007) 155 LGERA 115 [2007] NSWLEC 37
Oshlack v Richmond River Council (1998) 193 CLR 72
Our Town FM v The Australian Broadcasting Tribunal (No 3) (1987) 77 ALR 609
Port Stephens Council v Sansom (2007) 156 LGERA 125 [2007] NSWCA 299

DATES OF HEARING: 28 March 2008

EX TEMPORE JUDGMENT DATE: 28 March 2008

LEGAL REPRESENTATIVES:
APPLICANTS:
Mr M Wright, barrister
SOLICITORS
King-Christopher Carpenter
FIRST RESPONDENT:
Mr P McEwen SC
SECOND RESPONDENT:
Mr G Miller QC and Mr T To
SOLICITORS
Campbell Paton & Taylor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

28 March 2008

40535 of 2007

GREGORY JOHN BARTON & ANOR. v ORANGE CITY COUNCIL & ANOR. (No 2)
EX TEMPORE JUDGMENT

1 HIS HONOUR: These proceedings are before the Court to settle the form of final relief and to decide the issue of costs. Those two matters are consequential upon my judgment in the substantive proceedings: Barton v Orange City Council [2008] NSWLEC 104. I held that (a) a development consent issued by the first respondent, Orange City Council, to the second respondent, Mrs Westgeest, for an extension to her home was invalid; and (b) that I would make an order that the extension be demolished subject to a stay of six months with liberty to apply for a longer period. At the hearing there was a contest as to the second of those matters but not as to the first. The council was not represented at the hearing. At an early stage of the proceedings it filed a submitting appearance save as to costs.

2 After hearing the applicants and Mrs Westgeest today, the substantive relief will be as set out at the end of these reasons for judgment.

3 I turn to the costs issue. The applicants and Mrs Westgeest propose an order that the council and Mrs Westgeest pay the applicants’ costs. Mrs Westgeest also seeks orders that the council indemnify her in respect of her liability for costs to the applicants and that the council pay her costs.

4 In accordance with the general guidelines in Cutcliffe v Lithgow City Council (2006) 147 LGERA 330 at [50], the council accepts that it should pay the other parties’…

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: [2008] NSWLEC 123
Decision Date: 28 March 2008

CaseChat Overview and Summary

The Land and Environment Court of New South Wales was asked to decide the form of final relief in Barton v Orange City Council (No 2) and the issue of costs. The Court had previously declared a development consent invalid and ordered that an extension to a dwelling be demolished. The council had not contested the invalidity of the development consent but had opposed the demolition order. The council had filed a submitting appearance save as to costs. The applicants and the second respondent proposed an order that the council and the second respondent pay the applicants’ costs. The council opposed any order that would make it liable for the costs of the whole proceedings, which were mainly taken up with the issue of whether a consequential demolition order should be made. The guidelines in Cutcliffe v Lithgow City Council (2006) 147 LGERA 330 do not address liability for costs in relation to a consequential demolition order.

The Court considered the submissions of the applicants and the second respondent who criticised the conduct of the council in processing the development application, in dealing with the applicants’ complaints after construction started, and during the proceedings. The submissions were that the conduct of the council’s officers in processing the development application fell well short of that which could be expected of reasonably competent officials. The applicants were not notified of the making of a development application; no inspection, or no adequate inspection, was made of the applicants’ property in assessing the development application; the council officer Mr McCallum participated in the preparation of the Statement of Environmental Effects with the second respondent in a way that contributed to the failure to identify the severe impact that the proposed development would have on the applicants’ property; and the council failed through proper assessment of material it had before it, including the second respondent’s plans and shadow diagrams, to identify the severe adverse impact the proposed development would have on the applicants’ property. The conduct of council officers in dealing with the applicants’ complaints was careless, unresponsive and misleading. The council’s conduct during the proceedings fell short of that which might be expected from a model litigant. The submissions of the applicants and the second respondent, to the extent that the Court has accepted them, are of sufficient weight as to lead to the conclusion that, in the circumstances, the council should pay their costs of the proceedings.

The Court made the following orders: 1. The development consent granted by the first respondent to the second respondent on 14 February 2007 for alterations and additions to the existing dwelling constructed on the land is void and of no effect. 2. The second respondent must demolish or cause to be demolished all alterations and additions made to the premises in purported reliance upon the void development consent, subject to the stay in order 3. 3. The demolition order is suspended for a period of six months from the date of the orders. 4. If within six months of the date of the orders the second respondent obtains a development consent to carry out further alterations and additions to the premises, the second respondent has liberty to apply to the Court for orders 2 and 3 to be vacated or varied. 5. The parties have general liberty to apply on seven days’ notice including for extension of the time referred to in order 4. 6. The first and second respondents must pay the applicants’ costs of the proceedings. 7. The first respondent must indemnify the second respondent in respect of her liability for costs to the applicants. 8. The first respondent must pay the second respondent’s costs of the proceedings.

Orders