Bennett Architects and Associates Pty Limited v Manly Council

[2002] NSWLEC 247

Land and Environment Court

of New South Wales

CITATION:	Bennett Architects and Associates Pty Limited v Manly Council [2002] NSWLEC 247
PARTIES:	APPLICANT: Bennett Architects and Associates Pty Limited RESPONDENT Manly Council
FILE NUMBER(S):	10260 of 2002
CORAM:	Bignold J
KEY ISSUES:	Practice and Procedure :- Notice to produce
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 97
CASES CITED:
DATES OF HEARING:	22/08/02, 11/09/02, 13/09/02
DATE OF JUDGMENT:	12/20/2002
LEGAL REPRESENTATIVES:	APPLICANT: Ms J Jagot, Barrister SOLICITORS Landerer and Co RESPONDENT: Ms C Schofield, Solicitor SOLICITORS Pike Pike and Fenwick

JUDGMENT:

1. By Notice of Motion filed 26 July 2002 in a pending development appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 the Applicant claimed certain orders directing the Respondent to produce by specified dates all outstanding materials requested under two specified Notices to Produce that had been given by the Applicant to the Council in the last week of May. Those Notices to Produce had respectively required production of the following documents—

1. Council’s file with respect to Development Application dated 24 December 2001 for the property at Lot 1 DP 231330, Lot 2 DP 529409 and Lot 29 DP 7532, known as 33, 35 and 37 Ethel Street, Seaforth.

2. Council’s property files for the land referred to in 1., above.

3. any further information, documentation, correspondence, memoranda, notes or other material pertaining to the sale by the Council of the property referred to in 1., above.

1. All minutes of the meeting of Manly Council on 20 May 2002 that relate to the subject development application.

2. Council’s property files and Development Application files for the following properties:


a) 39 Ethel Street, Seaforth

b) the property on Magarra Place with the postal address of 43A Ethel Street, Seaforth.

2. The Notice of Motion also claimed an order that the Council supply particulars in response to a request for particulars.

3. The Notice of Motion also claimed an order for costs against the Council from 25 June 2002 relating to the Applicant’s Notices to Produce.

4. The Notice of Motion was supported by an affidavit sworn by Duncan John Tweed, an employed Solicitor having the day to day carriage of the case.

5. When the Notice of Motion first came before me on 22 August 2000, the hearing of the class 1 proceeding had been specially fixed for 25 to 28 October 2002.

6. In resisting the Applicant’s Notice of Motion, the Council’s Solicitor informed the Court that some of the documents had been produced but there remained material which had not been produced, and objection to production was taken on the grounds of (i) legal professional privilege and (ii) relevance.

7. After some argument, the parties agreed to adjourn the hearing upon the basis that the Council would make available further documents.

8. The Solicitor for the Council informed the Court that there were many documents embraced by the Applicant’s Notices to Produce and that it was obvious that many of them could have no possible relevance to the issues raised in the class 1 proceedings having regard to the Council’s Statement of Issues that had been filed on 18 June 2002.

9. Immediately following the adjournment, the Applicant notified the Council’s Solicitor of the documents it was seeking to have produced by specifying categories of documents. This specification narrowed the range of documents that had been called for in the Applicant’s two Notices to Produce.

10. Thereafter, the parties resolved all matters concerning the Applicant’s two Notices to Produce, save for the question of costs that had been claimed by the Applicant in its Notice of Motion filed 26 July 2002.

11. The Council thereafter sought the opportunity to make further submissions on costs. I granted leave to both parties to make additional submissions and these were received in written form on 10 and 13 September 2002.

12. The Applicant maintained its claim to costs which was based upon its reliance upon a representation made by the Council’s Solicitor to the Applicant’s Solicitor that there was no need to obtain orders from the Court because the documents would be produced, which was relied upon by the Applicant’s Solicitor, but when the documents were not produced, it became necessary for the Applicant to move the Court for the orders claimed in its Notice of Motion filed 26 July 2002.

13. In its additional submissions, the Applicant claims to have been put to significant expense between 30 May and 22 August by virtue of the Council’s Solicitors failure to produce all of the documents and its hitherto failure to articulate the bases for objection to production of any of the documents.

14. It was submitted that these costs were unnecessarily incurred and should be recoverable.

15. In resisting the order for costs claimed against the Council, the Council’s Solicitor submits that there is nothing in the affidavit evidence relied upon by the Applicant that establishes that there was any unreasonable delay or unreasonable conduct on the Council’s part in the litigation.

16. The class 1 appeal was originally filed in respect of the Council’s deemed refusal of development consent and it was necessary for the Council officers to have possession of the relevant files until shortly after 20 May 2002 when the Council determined the Applicant’s development application by refusing consent.

17. Before the Applicant had filed its Notice of Motion on 26 July 2002, the Council’s Solicitor had provided access to the Applicant’s Solicitor to inspect some of the documents at the Council’s Solicitor’s offices and entire copies of files had been provided to the Applicant’s Solicitor without charge.

18. At the time that the Council’s Solicitor had spoken to Mr Tweed on 25 June 2002 (it was that conversation that the Applicant’s Solicitor alleged to be the relevant representation upon which it relied) it was simply not possible for the Council’s Solicitor to articulate grounds for objecting to production of some of the documents because she had not had the full opportunity of inspecting those documents for herself.

19. Although in an endeavour to settle the matter after the hearing of the Applicant’s Motion had been adjourned on 22 August, the Council’s Solicitor had granted access to the Applicant’s Solicitor to inspect all documents in the Council’s possession it was never conceded, nor is it now conceded, that those documents were relevant to the issues in the class 1 proceedings.

20. Finally, the Council’s Solicitor submitted that having regard to the Court’s Practice Direction that the practice of the Court is that no order for costs in planning appeals is made unless the circumstances are exceptional, the Court would conclude that there are no exceptional circumstances in the present case that would justify the order for costs claimed by the Applicant.

21. In my judgment, the Council’s submissions should be accepted. Although there are cases involving decisions on interlocutory applications in planning appeals where costs orders have been made, notwithstanding the Court’s Practice Direction, I do not consider that it would be just or reasonable to order costs against the Council in this case.

22. The Notices to Produce had a very wide ranging ambit and on the face of it, called for documents which would reasonably be thought not to be relevant to the class 1 appeal, having regard to the Statement of Issues filed by the Council in the proceedings.

23. In particular, documents relating to the sale by the Council to the Applicant of lands forming part of the development site did not appear to have relevance to the issues raised.

24. Moreover, the Notices to Produce were given at a time when the Council had yet to finalise its decision on the development application and at a time five months in advance of the allocated hearing dates.

25. I would not wish to give any encouragement to unnecessary legal initiatives involving interlocutory applications in planning appeals. The Court’s statutory charter is to determine such appeals expeditiously and as economically as the circumstances of the case permit: the LEC Act, s 38(1).

26. For all of the foregoing reasons, I make the following orders—

1. The Applicant’s claim to costs in its Notice of Motion filed 26 July 2002 is dismissed.

2. Each party bear its own costs on the Notice of Motion.