Bowen v Willoughby City Council
[2000] NSWLEC 197
•08/31/2000
Land and Environment Court
of New South Wales
CITATION: Bowen v Willoughby City Council [2000] NSWLEC 197 PARTIES: APPLICANT:
BowenRESPONDENT:
Willoughby City CouncilFILE NUMBER(S): 10064 of 2000 CORAM: Bignold J KEY ISSUES: Costs :- Question of law raised by Council for preliminary determination in pending class 1 proceedings. Whether exceptional circumstances demonstrated to justify a cost order. LEGISLATION CITED: CASES CITED: Bell v Shellharbour Municipal Council (1993) LGERA 429;
Cadonia Pty Ltd v Leichhardt Council (unreported 5 August 1994);
Dixson v Wingecarribee Shire Council (1999) 103 LGERA 103 Frisoli v Leichhardt Council (1996) NSWLEC 157;
MacDonald v Mosman Municipal Council (No 2) (2000) 107 LGERA 211;
McKay v North Sydney Council (2000) 107 LGERA 203;
Nahum v North Sydney Council (1994) 83LGERA 2000;
North Sydney Council v P D Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222;
Outdoor Australia Pty Ltd v Auburn Council (1996) 89 LGERA 365;
Pancho Properties Pty Ltd v Wingecarribee Shire Council (1999) NSWLEC 245;
Quinn O’Hanlon Architects Pty Ltd v Leichhardt Municipal Council (1989) 68 LGRA 114DATES OF HEARING: 08/06/00 DATE OF JUDGMENT:
08/31/2000LEGAL REPRESENTATIVES:
APPLICANT:
Mr P Tomasetti, Barrister
SOLICITORS
Corrs Chambers Westgarth
RESPONDENT:
Mr J Underwood, Barrister
SOLICITORS
Mallesons Stephen Jaques
JUDGMENT:
IN THE LAND AND Matter No . 10064 of 2000
ENVIRONMENT COURT OF Coram : Bignold J.
NEW SOUTH WALES 31 August 2000
D AND L BOWEN
Applicants
v
WILLOUGHBY CITY COUNCIL
Respondent
JUDGMENT
Bignold J:
1. The Applicants seek an order for costs in relation to the hearing of the Respondent’s Motion filed in pending class 1 proceedings seeking the determination by the Court as a preliminary matter of two questions of law.
2. Both questions were determined adversely to the Respondent (the Council) in my judgment delivered on 6 April 2000 (now reported in 108LGERA 149) to which reference should be made.
3. The Applicants, recognising the Court’s established practice not to order the payment of costs in planning appeals (including those that involve the determination of preliminary questions of law) unless the circumstances are exceptional, found their claim to costs on three bases—
(i.) the Council’s contention on the first question of law that the foreshore building line provision contained in the Willoughby Local Environmental Plan 1995 cl 16 (the LEP) effected an absolute prohibition to the carrying out of development rather than operating as a development standard “flew in the face” of settled authority;
(ii.) the Council’s contention on the second question of law based upon the operation of the EP&A Act s 80(2) was misconceived and was pressed at the hearing despite the Applicants’ prior advice to Council’s Solicitors that the point of law lacked merit and if pressed, would invite a costs application by the Applicants; and
(iii.) the Applicants, in making their development application, had placed reliance upon the Council’s public and private statements made on various occasions in the period 1995 - 1999 that the foreshore building line controls imposed by the LEP were amenable to objection under State Environmental Planning Policy No 1—Development Standards (SEPP No 1) which statements were entirely departed from by the Council in raising the questions of law for preliminary determination in these proceedings.
4. The Council opposes the application for costs, arguing that despite the outcome of the questions of law being determined against the Council, no exceptional circumstances justifying an order for costs had been demonstrated.
5. In particular, the Council submitted that the first question of law as to whether the proposed development was prohibited was clearly arguable and the Council’s case was not contrary to the settled course of authority. On the contrary, the decisions of the Court of Appeal in North Sydney Council v P D Mayoh Pty Ltd(No 2) (1990) 71 LGRA 222 and in Bell v Shellharbour Municipal Council (1993) LGERA 429 had clearly established that it was a question of construction of each relevant provision of an environmental planning instrument whether it provides a “development standard” within the meaning of the EP&A Act and decided cases which construed other provisions of such instruments at best were of limited assistance. Indeed the Council referred to the fact that more recently this Court had reached diametrically opposed views on whether the same provision in the same environmental planning instrument was a development standard— see Dixson v Wingecarribee Shire Council (1999) 103 LGERA 103 per Lloyd J and Pancho Properties Pty Ltd v Wingecarribee Shire Council (1999) NSWLEC 245 per Talbot J.
6. The Applicants have referred me to the recent decision of Lloyd J in MacDonald v Mosman Municipal Council (No 2) (2000) 107 LGERA 211 where his Honour determined a costs application made by an applicant who had successfully appealed against the council’s decision imposing a condition on a development consent. His Honour, made the following observations at 214/215 which the Applicants in the present case say can be applied in the present case:-
- In the present case the decision of the council to impose the condition flies in the face of a number of authorities in this Court which strongly suggests that it is neither necessary nor appropriate to impose a condition of the kind which the council had imposed. It can be assumed that the council was aware of the attitude of a number of judges of the Court to the imposition of such conditions. I have referred to these views in my previous judgment. To impose such a condition in the face of settled authority of the Court, thus requiring the applicant to incur otherwise unnecessary costs in an appeal, may be an exceptional circumstance which justifies an order for costs against the council.
7. In the result, his Honour did not make a costs order against the council because his Honour found that “ (T)he conduct of the applicant, however cancels out, in my view, his entitlement to an order for costs ”: at 215. His Honour in the two immediately preceding paragraphs, had described the Applicants’ conduct in these very uncomplimentary terms:
- ….an applicant who did not keep his word , who failed to honour an agreement and who attempted to circumvent it having got what he wanted. : at par 75
8. The matter that Lloyd J considered to be the subject of “ settled authority of this Court ” is explained in his Honour’s earlier judgment upholding the development appeal, reported in 105 LGERA 49. It was this Court’s consistently applied unfavourable disposition to imposing as a condition of development consent a requirement for the registration pursuant to the Conveyancing Act 1919 of restrictions as to user of the land that was the subject of the grant of the development consent.
9. Seeking to apply Lloyd J’s dictum to the present case, the question is whether it can fairly be said that the question whether cl 16 of the LEP is a development standard (as I held it to be in my judgment of 6 April 2000) was a question that was conclusively answered by settled authority in this Court. In my opinion, that question was not conclusively governed by settled authority in this Court as even a cursory consideration of my reasons for judgment would amply demonstrate.
10. It is true that in my reasons for judgment I respectfully expressed the opinion that the decision of Cripps CJ in Quinn O’Hanlon Architects Pty Ltd v Leichhardt Municipal Council (1989) 68 LGRA 114 was correct, and held that “its interpretive approach to a very similar statutory provision is of obvious assistance, in the present case”: at par 75.
11. Although, as I pointed out at par 51, Quinn O’Hanlon has been followed by subsequent decisions of other judges of this Court, it had only been “tentatively” approved by Clarke JA in the Court of Appeal’s judgment in P D Mayoh (No 2) and its correctness had since been doubted by Talbot J in Frisoli v Leichhardt Council (1996) NSWLEC 157 and it recently was distinguished by Sheahan J in McKay v North Sydney Council (2000) 107 LGERA 203.
12. With great respect to the Applicant’s argument, it would be facile and ultimately inaccurate, to suggest that my determination of the first question of law raised by the Council merely involved the application of the decision in Quinn O’Hanlon to the facts of the present case.
13. For all the foregoing reasons (which more fully are detailed in my earlier judgment), I am unable to accept the Applicants’ submission that the Council, in raising the first question of law and contending that cl 16 of the LEP was not a development standard, was “flying in the face of settled authority”. Unfortunately, no such settled authority has yet emerged on what has become, in my respectful opinion, an altogether too common experience of litigants disputing whether a provision of an environmental planning instrument is a development standard.
14. For all the foregoing reasons, I must hold that the Applicants have not established the principal basis upon which they have claimed costs in the present case.
15. The remaining basis upon which the Applicants claim their whole costs is that in making their development application, they had relied upon public and private statements made on various occasions by the Council over the years from 1995 to 1999 that the foreshore building line controls of the LEP were amenable to the objection process under SEPP No 1.
16. Evidence of this reliance which is contained in the affidavit of David Bowen sworn on 29 May 2000 was objected to by the Council on the grounds of relevance. I admitted the evidence, subject to relevance. It certainly establishes that the Council has made from time to time the relevant statements and that the Applicants, in making their development application supported by objection under SEPP No 1 (which is the subject of the present class 1 proceedings) relied upon these statements.
17. However, assuming the relevance of the evidence, I do not think that my acceptance of it provides a proper basis justifying the costs order sought by the Applicants.
18. I do not think that the basis has been laid in the evidence for a finding that the Council, in departing from its previous statements by contending that the present case did not involve a development standard, has been guilty of any relevant misconduct in, or in relation to, the litigation. It is to be recalled that misconduct in, or in relation to the litigation, may be a disentitling factor in denying the successful litigant the costs order that may generally be expected to be made in cases where the costs discretion is exercisable by reference to the general principle that costs follow the event.
19. However, that established principle is very far removed from the present case where it is the unsuccessful litigant whose conduct is in question, in circumstances where the settled practice of the Court is that costs orders are not generally made in planning appeals except in exceptional circumstances.
20. This brings me finally to consider the third basis for the Applicants’ application for a partial costs order only, namely in respect of the costs incurred in connection with the second question of law that was raised by the Council and which was founded upon s 80(2) of the EP&A Act.
21. It is apparent from the reasons for my determination of this question adversely to the Council (see par 83 to par 96), that I found the Council’s argument to be entirely untenable, describing one possible aspect of it as being “patently absurd”: par 90.
22. Does this very unfavourable evaluation of the Council’s argument and conduct in even raising the question of law constitute exceptional circumstances?
23. I think that the answer to this question must be “Yes”. There is precedent for ordering costs against a party who raises for preliminary determination a question of law and contends for an answer that is “obviously untenable”: see Cadonia Pty Ltd v Leichhardt Council (unreported 5 August 1994) or that is contrary to the “quite apparent” answer: Nahum v North Sydney Council (1994) 83LGERA 2000
24. Both these decisions are analysed and discussed in the Chief Judge’s decision in Outdoor Australia Pty Ltd v Auburn Council (1996) 89 LGERA 365 which established that the Court’s practice direction not to award costs in planning appeals unless circumstances were exceptional should also be applied to such cases which involve the determination of a question of law raised for preliminary determination although the fact that a question of law had been raised was a relevant factor in determining whether or not exceptional circumstances were demonstrated.
25. It is undoubtedly true, as the Council has argued, that the time and costs spent at the hearing (and presumably the time and costs spent in preparation) on this question were very slight compared with that expended on the question whether a development standard was involved in the case. However doubtless, time and costs were incurred by the Applicants on this question after they had advised the Council’s Solicitors that the question appeared to be entirely lacking in substance and inviting the Council to not press it at the hearing in the interest of limiting costs.
26. In these circumstances, I am satisfied that exceptional circumstances have been relevantly demonstrated which justify a partial costs order in favour of the Applicants. Whereas the established practice of the Court facilitates the earliest and simplest determination of relevant questions of law in advance of any necessary hearing on the planning merits so that such a merits hearing may proceed before a Commissioner untrammelled by legal complexities, applicants for development consent should not be expected to bear costs that are unnecessarily incurred by the process of the preliminary determination of a question of law raised by a council, which is supported by an argument which is obviously untenable. I would apply that epithet to the Council’s argument in support of the question of law founded on the EP&A Act s 80(2).
27. Since the parties have equally shared success and failure on the hearing of the Applicants’ Motion for costs, I think that it is appropriate to make no order in respect of the hearing of that Motion, the respective successes being cancelled out by the respective failures.
28. For all the foregoing reasons, I order that the Respondent pay the Applicants’ costs but limited to those costs that were incurred in respect of the second question of law raised by the Council for preliminary determination in the sum agreed or failing agreement, as assessed In all other respects, the parties shall bear their own costs.
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