Bruyan, S v Hawkesbury City Council

[2006] NSWLEC 51

Land and Environment Court

of New South Wales

CITATION:	Bruyan, S v Hawkesbury City Council [2006] NSWLEC 51
PARTIES:	APPLICANT Susan Bruyan RESPONDENT Hawkesbury City Council
FILE NUMBER(S):	11040 of 2003
CORAM:	Talbot J
KEY ISSUES:	Costs :- class 1 - exercise of discretion in favour of consent authority where applicant fails to submit supporting material within a reasonable time.
LEGISLATION CITED:	Conveyancing Act 1919, s88B Environmental Planning and Assessment Act 1979, s96AA Land and Environment Court Rules 1996, Part 6 rule 4(2)
CASES CITED:	Aldi Foods Pty Ltd v Holroyd City Council [2005] NSWLEC 338; Hynes Urban Planners Pty Ltd v Hawkesbury City Council [2004] NSWLEC 36
DATES OF HEARING:	02/02/2006
DATE OF JUDGMENT:	02/15/2006
LEGAL REPRESENTATIVES:	APPLICANT Mr P O'Brien (Solicitor) SOLICITORS Harris & Company RESPONDENT Ms C A Schofield (Solicitor) SOLICITORS Pike Pike & Fenwick

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

15 February 2006

11040 of 2003 Bruyan, S v Hawkesbury City Council

JUDGMENT

1 Talbot J: On 19 February 2004 in Hynes Urban Planners Pty Ltd v Hawkesbury City Council [2004] NSWLEC 36 Commissioner Hussey determined to grant development consent in respect of the subdivision of lots 11 and 12 of DP 786325 at London Place Grose Wold into five allotments. The proposal by the then applicant was to provide on-site disposal of effluent by means of an Ecomax system for each dwelling with covenants to be imposed on the title of each lot to that effect.

2 Environmental expert engineers conferred and provided a joint opinion that each lot contained sufficient area for a satisfactory effluent disposal area in conjunction with an Aerated Waste Water Treatment System (AWTS) in lieu of the Ecomax system. Ultimately Commissioner Hussey granted consent to the development application subject to, inter alia, condition 3 as follows:

The building envelope for Lot 901 is building envelope “B” on the proposed plan of subdivision.

3 There was a further condition that a Restriction as to User be imposed under s88B of the Conveyancing Act 1919 in relation to the approval of the effluent disposal system on the basis of development constraints.

4 Alternative areas for a building envelope on Lot 901 of the proposed subdivision were presented to Commissioner Hussey. The explanation for the imposition of condition 3 appears to be contained within paragraph 29 of the judgment as follows:

Mr Searle’s main concern was for the over development of Lot 12 and the impact on the ECA. However it seems to me that the imposition of a condition restricting the building envelope to area B, provides reasonable separation so as to maintain the ECA within Lot 901.

5 There is no further discussion of the subject, appearing in the judgment.

6 On 9 March 2005 the present applicant lodged an application with the respondent pursuant to s 96AA of the Environmental Planning and Assessment Act 1979 seeking to modify the development consent by substituting condition 3 as follows:

The building envelope for Lot 901 is building envelope “A”; as shown on the plan prepared by NORTH WESTERN SURVEYS being Plan Reference 12149/81 Revision No. 02 dated 4.6.2003; as modified to allow for the 6 metre wide Right of Carriageway.

7 Commissioner Hussey has granted consent to the modification of the original development consent and the council is now seeking an order for costs in its favour generally on the grounds that there were no changed circumstances between the date of the grant of the original development consent and the application made pursuant to s 96AA. It is contended that both envelope A and envelope B were considered by Commissioner Hussey on the basis of the recommendation contained in the joint report of the effluent disposal experts who preferred envelope B.

8 Although Commissioner Hussey does not fully explain his reasons for adopting building envelope B it is true to say that there was nothing appearing on the face of the application made pursuant to s 96AA that distinguished the circumstances from those that prevailed at the time of the original decision. It is submitted by Ms Schofield, who appears for the council that it was not until discussion took place at the management conference conducted by Commissioner Hussey prior to the commencement of the hearing that the reasons for the proposed changes became apparent. Following the provision of further particulars through an amended Statement of Environmental Effects prepared after the management conference the council determined to agree to consent orders so that the development consent could be modified in accordance with the application made pursuant to s 96AA.

9 The basis of the council’s argument appears to be that it was entitled to expect that there had been a change in circumstance or in some aspect of the proposal otherwise it could rely upon the determination by the Commissioner in 2004 as a final decision and that in the absence of any such change the purported application pursuant to s 96AA was in effect an appeal from the decision of Commissioner Hussey. It is the council’s case in relation to costs that if the amended Statement of Environmental Effects had been received when the second application was lodged; there would have been no reason for the appeal to proceed. The only expert material provided with the s 96AA application (prior to the lodgement of the amended Statement of Environmental Effects in November 2005) was a report by a town planner, which did not explain why envelope A could now be accepted.

10 Ms Schofield points to correspondence whereby the applicant was advised that council considered there to be insufficient information to properly assess the s 96AA application on several occasions including:

Notice of Determination and reasons for refusal dated 8 July 2005;

Statement of Issues dated 2005; and
Letters dated 22 August 2005, 26 August 2005 and 6 September 2005 from the respondent’s solicitors, Pike Pike and Fenwick, to the applicant’s solicitors, Harris and Company.

11 Mr O’Brien, who appears for the applicant, submits that although the factual circumstances and history relied upon by the council are correct nevertheless they demonstrate an evolving process in the conduct of the proceedings, which resulted in a satisfactory outcome being achieved by way of consent orders. In that respect Mr O’Brien relies upon a number of statements made by me in Aldi Foods Pty Ltd v Holroyd City Council [2005] NSWLEC 338.

12 It is a further contention of the council however that there was insufficient information lodged with the s 96AA application initially and that it was not until the amended Statement of Environmental Effects was lodged in November 2005 that it was able to comprehend the nature of the changes and the justifications for them.

13 Rule 4(2) of Part 6 of the Land and Environment Court Rules 1996 makes the following provision in regard to an award of costs in class 1 proceedings:

No order for the payment of costs will be made in proceedings to which this Rule applies unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable.

14 It is apparent from the material before me that the council was entitled to initially complain that it had insufficient information for it to properly consider the application pursuant to s 96AA particularly having regard to the issues ventilated before Commissioner Hussey in the original proceedings. On the face of the application it appears to be an attempt to re-argue issues already decided by Commissioner Hussey without there being any material change in the nature of the proposed development or the surrounding circumstances. The primary motivation for the application pursuant to s 96AA appears to be that prospective purchasers of the land indicated a preference to build a house in the situation indicated for building envelope A rather than the area indicated for building envelope B.

15 Having regard to the whole of the circumstances of this particular case it is my opinion that it would be fair and reasonable for the council to be reimbursed for its costs up to the date of the receipt of the amended Statement of Environmental Effects in November 2005. Until the Statement of Environmental Effects was received the council was not in a position to assess the application, much less determine it. That is a circumstance generated by the applicant’s neglect and is no reflection on the council’s failure to determine the application. Thereafter the presumption that there will be no order as to costs should prevail.

16 Both parties have been partially successful in relation to the Notice of Motion seeking an order for costs and in the circumstances it is appropriate that each party pay their own costs in respect of that application.

Orders

17 The Court makes the following order:

1. The applicant pay the respondent’s costs of the proceedings to 2 November 2005 and that each party pay their own costs after that date.