Brooks - v - Hornsby Shire Council

[1999] NSWLEC 40

Land and Environment Court

of New South Wales

CITATION:	Brooks - V - Hornsby Shire Council [1999] NSWLEC 40
PARTIES	APPLICANT: Brooks
RESPONDENT: Hornsby Shire Council
NUMBER:	40229 of 1998
CORAM:	Lloyd J
KEY ISSUES:	:- Injunction - whether any utility in granting mandatory relief. Costs - where declaratory relief not opposed.
LEGISLATION CITED:	Injunction - whether any utility in granting mandatory relief. Costs - where declaratory relief not opposed.
DATES OF HEARING:	02/25/1999
DATE OF JUDGMENT DELIVERY:	03/05/1999
LEGAL REPRESENTATIVES:	APPLICANT: S A Duggan Solicitors: Bartier Perry RESPONDENT: D R Parry Solicitors: Abbott Tout

JUDGMENT:




The applicant is the owner of land within the local government area of the respondent, being Lot 6 in DP 25800. Part of the land is zoned Open Space A (Public Recreation - Local) under Hornsby Shire Local Environmental Plan 1994.

2. Clause 17(5) of Hornsby Shire Local Environmental Plan 1994 provides:

“(5) The owner of land in the Open Space A (Public Recreation - Local) zone may request, in writing, the Council to acquire the land. On receipt of the request, the Council must acquire the land.”

3. In this proceeding the applicant claims the following declaration and orders:

“1. A Declaration that the Respondent is required to acquire that part of Lot 6 in DP 25800 zoned Open Space A (Public Recreation - Local) under Hornsby Shire Local Environmental Plan1994 in accordance with the requirements of cl 17(5) of Hornsby Shire Local Environmental Plan 1994..

2. An Order that the Respondent acquire that part of Lot 6 in DP 25800 zoned Open Space A (Public recreation - Local) under Hornsby Shire Local Environmental Plan1994 in accordance with the requirements of clause 17(5) of Hornsby Shire Local Environmental Plan1994 .”

3. An order that the Respondent pay the Applicant’s costs.”

4. Mr D R Parry, who appears for the respondent, consents to the making of the Declaration as sought. He opposes any consequential orders, however, on the ground that the respondent has taken and is taking steps to acquire the land as required under the Land Acquisition (Just Terms Compensation) Act 1991, so that the making of consequential orders serves no utility. Mr Parry also opposes the order for costs sought by the applicant. He submits that, on the contrary, there should be an order that the respondent pay the applicant’s costs, or alternatively, there should be no order for costs, because the bringing of this proceeding is unnecessary in view of the fact that at all relevant times the respondent had accepted its obligations to acquire the land and had, before the commencement of the proceedings, initiated the appropriate action to do so.

5. Ms S A Duggan, who appears for the applicant, submits that an order for consequential relief should be made because, although a formal notice of intention to acquire the land has now been served as required by the Land Acquisition (Just Terms Compensation) Act , s 11(1), it may be withdrawn by a further notice. Ms Duggan further submits that the applicant should have an order for costs because the respondent, whilst acknowledging its obligation to do so, had failed to take the necessary steps to acquire the land and only served the formal notice of intention to acquire on the morning of the hearing of this proceeding.

6. The position is best understood by reference to the following chronology of relevant events:

27.7.98 The applicant requests the respondent to acquire the land pursuant to Hornsby Shire Local Environmental Plan 1994, clause 17(5).
9.9.98 In a report prepared for the respondent, Mr C E Dickerson, the respondent’s Executive Manager Strategy Division, advises that the respondent is legally bound to acquire the land.
The respondent resolves to “initiate action to acquire” the land and also to “endeavour to reach agreement with the owner with respect to the level of compensation to be paid for the acquisition of the land”.
15.9.98 The respondent notifies the applicant of its resolution and makes an offer for the land.
17.9.98 The respondent requests a valuation of the land from the Valuer-General.
21.9.98 Bartier Perry (the applicant’s solicitors) provide to the respondent the linen plan prepared for the subdivision of the land so as to expedite the acquisition.
23.9.98 Bartier Perry advise the respondent that its offer is rejected and make a counter offer.
2.11.98 Bartier Perry advise the respondent that the applicant has not been served with a notice of intended acquisition in accordance with the Land Acquisition (Just Terms Compensation) Act , s 11 and request advice within seven days why an application should not be made to the Court for a declaration that the respondent has failed to comply with its obligation under clause 17(5) of the Hornsby Shire Local Environmental Plan 1994.
11.11.98 The respondent provides Bartier Perry with a copy of its request to the Valuer-General for a valuation and advises that the applicant’s offer cannot be accepted until the valuation is available.
16.11.98 Bartier Perry advise the respondent that it has failed to comply with the applicant’s request of 27.7.98 that it acquire the land and if the notice of intention to acquire is not served within seven days the application to the Court may be made without further notice.
17.11.98 The respondent requests its solicitors, Abbott Tout, to immediately proceed with the acquisition, to request a shorter period of time for the notice of proposed acquisition and to prepare a draft notice for the Minister’s approval as a matter of urgency.
17.11.98 Abbott Tout advise Bartier Perry that the respondent has commenced acquisition proceedings.
18.11.98 Bartier Perry advise Abbott Tout that “unless you can advise a reason why we should not, we intend to act on our instructions to commence proceedings in the Land & Environment Court to remedy your client’s failure to acquire.”
24.11.98 Abbott Tout advise Bartier Perry that little would be achieved by an application to the Court; that should proceedings be commenced the respondent would seek recovery of its costs; and immediately upon the Minister granting his approval to the giving of a proposed acquisition notice, that notice will be served.
25.11.98 The respondent forwards to the Minister for Local Government a formal application for the Minister’s approval to serve a proposed acquisition notice.
25.11.98 Bartier Perry ask Abbott Tout:
“How much longer do you suggest that our client should wait for the notice of intention to acquire?”

and further advise that they have no reason to advise their client to withdraw his instructions to commence proceedings in the Court.
4.12.98 The present application for relief is filed in the Court.
8.12.98 The application is served on the respondent.
11.12.98 The respondent receives a requisition from the Director-General of the Department of Local Government in response to its application of 25 November 1998 for the Minister’s approval to serve a proposed acquisition notice.
17.12.98 Abbott Tout advise Bartier Perry that the respondent is unable to progress the matter until the approval of the Minister is forthcoming and that the plan of subdivision furnished by Bartier Perry on 21 September 1998 is unacceptable by the Minister and should be modified.
21.12.98 Bartier Perry request the applicant’s surveyor to furnish a modified plan of subdivision.
8.1.99 Bartier Perry advise Abbott Tout that the applicant’s surveyor has been requested to prepare the modified plan of subdivision and also ask for the making of consent orders by the Court.
21.1.99 The respondent advises the applicant that it has now received the valuation by the State Valuation Office and makes an offer for the acquisition of the land.
29.1.99 Abbott Tout send a letter to Bartier Perry noting that the amended plan of subdivision has still not been forwarded by the applicant’s surveyor and until this is done the Minister is unable to grant his approval under s 187(2) of the Local Government Act 1993.
1.2.99 Bartier Perry advise Abbott Tout that the modified plan of subdivision would be delivered that week and note that the respondent could have prepared a plan at any time after receiving the applicant’s request for compulsory acquisition on 27 July 1998.
2.2.99 Bartier Perry advise Abbott Tout that the applicant rejects the respondent’s offer of 21 January 1999.
10.2.99 Bartier Perry furnish to Abbott Tout the modified plan of subdivision and the surveyor’s account.
17.2.99 Abbott Tout send the modified plan of subdivision to the Director-General, Department of Local Government, in answer to the requisition and ask that the Minister’s consent be expedited.
19.2.99 Abbott Tout advise Bartier Perry that the plan has been lodged for registration and has also been lodged with the Department of Local Government for the Minister’s approval under s 187(2) of the Local Government Act .
23.2.99 The Department of Local Government advises Abbott Tout that on 19 February 1999 the Minister approved the giving of a proposed acquisition notice.
25.2.99 The notice to acquire the land is served on the respondent at the commencement of this hearing.

7. The Local Government Act 1993, s 187 provides:

“187(1) Land that a council is authorised to acquire under this Part may be acquired by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.

(2) A council may not give a proposed acquisition notice under the Land Acquisition (Just Terms Compensation) Act i 1991 without the approval of the Minister.”

8. It is immediately apparent that the respondent was unable to issue the notice of intention to acquire the land, required by the Land Acquisition (Just Terms Compensation) Act , s 11(1), until it had first obtained the approval of the Minister for Local Government to do so. Moreover, before granting any such approval the Minister usually needs to be satisfied that an attempt has been made to purchase the land by agreement.

9. In the present case the respondent made an offer for the land on 15 September 1998. On 17 September 1998 the respondent requested a valuation of the land from the State Valuation Office. On 23 September 1998 the respondent’s offer was rejected by the solicitors for the applicant, who made a counter offer. On 11 November 1998 the respondent advised Bartier Perry, the solicitors for the applicant, that the offer could not be accepted until the valuation is available. The valuation was not made available until January 1998 and on 21 January 1999 the respondent made a further offer for the acquisition of the land.

10. In the meantime the applicant was becoming impatient. Through his solicitors, Bartier Perry, the applicant was insisting that the respondent serve the notice of intended acquisition required by the Land Acquisition (Just Terms Compensation) Act , s 11(1). To that end the applicant’s solicitors provided to the respondent on 21 September 1998 the linen plan prepared for the subdivision of the land in order to expedite the acquisition. As it happened, this plan was the subject of a requisition by the Director-General of the Department of Local Government and the plan then had to be modified.

11. The applicant’s repeated insistence that the respondent serve the statutory notice of intention to acquire the land could not be met by the respondent in the absence of the Minister’s consent. The applicant’s solicitors must have known of this, yet they continued to threaten the commencement of proceedings despite assurances by the respondent’s solicitors that steps to that end were being taken. It seems to me that the respondent’s solicitors kept the applicant’s solicitors informed of what steps were being taken to advance the process.

12. The respondent has demonstrated from the outset an acceptance of its obligation to acquire the land. It has also demonstrated its clear intention to acquire the land in the absence of any negotiated agreement for the purchase of it from the respondent. The respondent’s counsel, Mr D R Parry, informed me at the commencement of the hearing that the respondent has at all times fully understood and accepted its obligation to acquire the land and intends to do so. I have no reason not to accept Mr Parry’s statement. It follows that the applicant’s claim for consequential relief is unnecessary.

13. Mr Parry also submits that the respondent’s consent to the making of the declaration as sought should not be seen as any admission of wrongdoing on its part. The respondent consents to the making of the declaration simply because it is a correct statement of what the law requires. The respondent has never contended to the contrary. Accordingly, Mr Parry submits that the bringing of the proceedings is unnecessary and there should thus be an order for the payment of the respondent’s costs.

14. Ms Duggan, appearing for the applicant, submits that at no time before 25 November 1998 had the respondent attempted to acquire the land, that being the date on which the respondent sought the Minister’s approval to do so pursuant to s 187(2) of the Local Government Act . I have referred (in paragraph 5 above) to Ms Duggan’s submission on the need for consequential relief. For the reasons described in paragraph 12 above there is no utility in granting the applicant’s claim for consequential relief. Nevertheless Ms Duggan submits that there should be an order for costs in favour of the applicant.

15. As the chronology shows, the respondent was attempting to negotiate a purchase of the land by agreement, being a necessary prerequisite to obtaining the Minister’s approval to give a proposed acquisition notice. That process was inhibited by the fact that the respondent was awaiting the valuation of the land from the State Valuation Office. The applicant’s solicitors were told that this was the reason for the delay for negotiating a purchase by agreement, by letter dated 11 November 1998. As I have said, the respondent has at all times accepted its obligation to acquire the land. it is usual, of course, for a statutory body intending to acquire land by compulsory acquisition to itself carry out a survey of the land to be acquired. In this case, however, the applicant provided to the respondent the linen plan prepared for the subdivision of the land in order to expedite the acquisition. As I have noted that plan was unsatisfactory and was the subject of a requisition from the Director-General of the Department of Local Government. In my view, the respondent cannot be blamed for forwarding a plan of subdivision to the Department of Local Government which, as it happened, turned out to be unsatisfactory, when the applicant itself furnished that plan. Neither can the respondent be blamed for accepting the applicant’s plan of subdivision when it was offered. It was obviously offered by the applicant’s solicitors in order to obviate the necessity of the respondent having to do so.

16. It might be thought that because the declaration sought by the applicant is now to be made, then the applicant is at least partly successful and should have an order for his costs. The duty of the applicant to acquire the land, however, has never been in dispute. The circumstances described in paragraphs 8, 9, 11, 12 and 15 above suggest that blame cannot be placed entirely upon the respondent for any delay that has occurred.

17. In re The Minister for Immigration and Ethnic Affairs Ex parte Lai Qin (1997) 186 CLR 622, McHugh J said (at 625):

“It appears that both parties has acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings.”

18. In my view this statement should be applied in this case. That is to say, it is appropriate in the circumstances of this case for there to be no order as to costs.

19. Accordingly I make the following declaration and orders:

1. A Declaration that the Respondent is required to acquire that part of Lot 6 in DP 25800 zoned Open Space A (Public Recreation - Local) under Hornsby Shire Local Environmental Plan1994 in accordance with the requirements of cl 17(v) of Hornsby Shire Local Environmental Plan 1994 .

2. No order as to costs.

3. The exhibits may be returned.

I certify that this and the 13 preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

Associate
Dated: 05/03/99