Campelltown City Council v D'Arcy

[2004] NSWLEC 749

Land and Environment Court

of New South Wales

CITATION:	Campelltown City Council v D'Arcy [2004] NSWLEC 749
PARTIES:	APPLICANT Campbelltown City Council RESPONDENTS Vy Ly D'Arcy and Talent Ly D'Arcy
FILE NUMBER(S):	40307 of 2004
CORAM:	Pain J
KEY ISSUES:	Costs :- whether should follow the event - no disentitling conduct
LEGISLATION CITED:	Environmental Planning & Assessment Act 1979 Land and Environment Court Act 1979 s 69
CASES CITED:	Campbelltown City Council v D'Arcy [2004] NSWLEC 439; Rockdale City Council v Findlay [2004] NSWLEC 592
DATES OF HEARING:	7/12/2004
EX TEMPORE JUDGMENT DATE :	12/07/2004
LEGAL REPRESENTATIVES:	APPLICANT Ms M Carpenter instructed by Marsdens Law Group RESPONDENTS Dr J Keogh instructed by Richard Bournes (agent)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

7 December 2004

40307 of 2004 Campbelltown City Council v D’Arcy

EX TEMPORE JUDGMENT

1 HER HONOUR: I gave judgment in this matter on 27 August 2004; Campbelltown City Council v D’Arcy [2004] NSWLEC 439. Essentially the relevant history of the matter is set out therein and I will not repeat it.

2 In that judgment at [38] I made a declaration that the Respondents, their servants and agents had done certain work in breach of the Environmental Planning & Assessment Act 1979 (the EP&A Act). That work related particularly to the erection of metal roller doors on the north-eastern and south-western junctions between the main building and weatherboard structure to the north-west of the building and, secondly, the erection of a metal roller door over the front door on the south-eastern wall of the building.

3 At the time I gave that judgment I did not make an order for the removal of those works. As expressed in that judgment, I was concerned that the Respondents did appear to have a security problem at the property and I encouraged the parties at [37] to meet to further discuss proposed security measures with a view to seeing if a development application could be made for those. I note that the parties have since met to discuss that matter and that a development application is to be lodged shortly in relation to those alternative security measures.

4 The Council now returns to the Court seeking its costs in the matter. The Respondents’ position on costs is that each party pay its own costs. The Council has argued that it acted reasonably in commencing and pursuing these proceedings and has referred me to a useful decision of Cowdroy J in Rockdale City Council v Findlay [2004] NSWLEC 592. I was particularly directed to [25] and [26] of that judgment which I essentially wish to adopt as these set out relevantly the issues that I need to have regard to. In considering costs, s 69 of the Land and Environment Court Act 1979 (the Court Act) applies and does provide me with discretion in relation to the award of costs. The general rule of costs in Class 4 proceedings is that where a party has been successful, they would usually get their costs.

5 I consider the Council has been generally successful in these proceedings and on that basis would get its costs, however, I do need to discuss also the issue of whether there is any disentitling conduct I should take into account in deciding whether or not I should make that order.

6 In that regard I note that in the submissions of Dr Keogh for the Respondents he has argued that there is disentitling conduct. He has relied in particular on affidavit evidence of his client being affidavits of Matthew D’Arcy dated 7 June 2004 and 23 June 2004 about a visit to the Council in the second half of 2002 in relation to the proposed lodgement of a development application for the measures that I have now declared to be illegal.

7 I should note also that to counter, so to speak, that affidavit evidence, the Council relied in its case on an affidavit of John Bridge, a Council officer, dated 16 June 2004, where he attested in slightly different terms to discussions about those measures he had with a person who may have been Mr D’Arcy.

8 It is clear there is disagreement as to what precisely was said when Mr D’Arcy visited the Council but it seems to me the evidence is clear that he was aware of the need to obtain development consent, and that he was also advised about the necessity of obtaining a heritage architect’s advice. At no stage since that visit to the Council, as I do not have any such evidence, has Mr D’Arcy sought to lodge a development application for alternative security measures which would comply with the Council’s heritage requirements. It seems to me in those circumstances the Council did have little alternative but to commence these proceedings in which, as I have said, I consider the Council has been largely successful.

9 I therefore intend to rely on the authorities as set out by Cowdroy J in Findlay and I consider the Council should obtain its costs in the proceedings up to the end of the hearing on 27 August 2004. I should make clear that costs should not extend to any legal costs that may have been incurred in relation to the settlement discussions since then in relation to the lodging of the development application.

10 The Court makes the following orders:

1. The Respondents are to pay the Applicant’s costs as agreed or assessed up to 27 August 2004.

2. The Respondents are to pay the Applicant’s costs as agreed or assessed in relation to the costs hearing on 7 December 2004.

3. Each party is to bear its own costs in relation to the mention on 26 November 2004.