Carlisle Developments Pty Limited v Leichhardt Council
[2003] NSWLEC 310
•11/24/2003
>
Land and Environment Court
of New South Wales
CITATION: Carlisle Developments Pty Limited v Leichhardt Council [2003] NSWLEC 310 PARTIES: APPLICANT
RESPONDENT
Carlisle Developments Pty Limited
Leichhardt CouncilFILE NUMBER(S): 10167 of 2003 CORAM: Talbot J KEY ISSUES: Costs :- class 1 discontinued without consent
LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 80A, s 82A, s 96
Land and Environment Court Act 1979 s 69(2)
Land and Environment Court Rules 1996 Pt 11 r 5CASES CITED: Aspect North v Lismore City Council [2001] NSWLEC 288, unreported;
Building Owners and Managers Association of Australia Ltd v Sydney City Council (1984) 53 LGRA 54;
Pyx Granite Co Ltd v Ministry of Housing and Local Government [1958] 1 QB 554DATES OF HEARING: 14/11/2003 DATE OF JUDGMENT:
11/24/2003LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr D P Wilson (Barrister)
SOLICITORS
Konstan Lawyers
Mr P M Jackson (Solicitor)
SOLICITORS
Pike Pike & Fenwick
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
10167 of 2003
24 November 2003Talbot J
- Applicant
- Respondent
Introduction
1 The hearing is concerned solely with the question of costs. Leichhardt Council (“the council”), pursuant to a Notice of Motion dated 19 September 2003 seeks an order that the applicant pay the respondent’s costs, including the costs of the motion on the grounds set out in an affidavit sworn by the council’s solicitor on 19 September 2003. The solicitor for the applicant has also sworn an affidavit in support of the applicant’s contention that there should be no order as to costs.
2 The Court did not determine the issues in the case as a Notice of Discontinuance was filed on 17 September 2003.
3 It is necessary, in the circumstances, to have regard to the history of the litigation.
4 On 27 March 2003 the council issued a Notice of Determination of development application No. D/2002/882 granting consent to development comprising rendering and painting of exterior walls of a residential flat building and replacement of existing aluminium windows with new aluminium windows, subject to conditions (“the present consent”).
5 By an application class 1, filed in the Court on 17 February 2003, the applicant had appealed against the deemed refusal of its development application. At the first callover on 4 April 2003 the applicant maintained an intention to appeal against nominated conditions of consent. On 11 April 2003 the applicant provided the council with a statement identifying the conditions in dispute as follows:-
Condition 5 Smoke Alarm Systems
Condition 6(b), (c), (d), (f) and (g) Building Work Compliance Inspections
Condition 13 Interim/Final Fire Safety Certificate
Condition 14 Annual Fire Safety Statement
Condition 16 Residential building work
“Advisory” Condition 1 Principal certifying authority
“Advisory” Condition 3 Exit Signs
“Advisory” Condition 4 Fire Hydrants
“Advisory” Condition 5 Hose reels
“Advisory” Condition 6 Smoke Alarm Certification
“Advisory” Condition 7 Electrical Switchboard and Sub-Boards
“Advisory” Condition 8 Operation of required exit doors
“Advisory” Condition 10 Structural alterations
“Advisory” Condition 11 FRL of floor separating carparking
“Advisory” Condition 12 FRL floor separating units
“Advisory” Condition 13 FRL of internal walls
“Advisory” Condition 14 Protection of entry doorways
“Advisory” Condition 15 FRL of space underneath stairs
“Advisory” Condition 16 Smoke alarm system
“Advisory” Condition 17 Exit signs and Emergency lighting
“Advisory” Condition 18 Balustrades
“Advisory” Condition 19 Fire Hydrants
“Advisory” Condition 20 Fire Hose Reels
“Advisory” Condition 21 Electrical Switchboards /Sub-boards
“Advisory” Condition 22 Relocation of exposed wastepipe
6 The council filed a Statement of Issues on 28 April 2003 in respect of the nominated conditions.
7 It will become readily apparent from a perusal of the nature of the above conditions that many of them are, as contended by the applicant, of no relevance to or justified by a development consent which, on its face, authorises only the rendering and painting of exterior walls and the replacement of existing aluminium windows with new aluminium windows. That observation becomes the nub of the applicant’s complaint.
8 It is contended that the conditions do not satisfy the three tests for validity of a condition, exemplified by Lord Denning in Pyx Granite Co Ltd v Ministry of Housing and Local Government [1958] 1 QB 554 at 572 as follows:-
(1) It must be for a planning purpose or relate to a planning purpose;
(2) It must fairly and reasonably relate to the subject development; and
(3) It must be such as a reasonable planning authority, duly appreciating its statutory duties, could have properly imposed.
9 However, there are other considerations raised by the council, which must be addressed before the question of whether circumstances exist that justify the making of a costs order is considered. The history of the conduct of the matter by both parties is instructive in the present context.
10 By letter dated 29 April 2003 the council’s solicitors invited the applicant to lodge either a s 82A Application for Review or a s 96 Application concerning the conditions appealed against to enable the council to reconsider the conditions. The invitation was accompanied by advice that the council would give such application priority and that it could be determined within six weeks. At a callover before the Registrar on 30 April 2003 the applicant’s solicitor informed the Court that the conditions were ultra vires. Nevertheless, the matter was set down for hearing on-site before a Commissioner on 18 July 2003. On 30 April 2003, in response to the assertions that the conditions were ultra vires, the council’s solicitors suggested to the applicant that they file a Notice of Motion to refer a point of law for hearing before a Judge.
11 The applicant did not respond to the invitation or accept the suggestion made by the council.
12 The applicant filed no evidence in the proceedings. The council prepared the matter for hearing and filed and served statements of evidence by a Building Consultant.
13 At the on-site hearing before Commissioner Moore on 18 July 2003 it became apparent that all of the work relating to the rendering of the building and the replacement of windows had been completed. The proceedings were adjourned to enable the applicant’s representative, who was overseas, an opportunity to consider the evidence filed by the council. On 24 July 2003 the proceedings were further adjourned to 30 July 2003 on the request of the applicant for additional time to consider its position.
14 By letter dated 29 July 2003 the applicant’s solicitors put forward a proposal for settlement of the dispute on a without prejudice basis. Commissioner Moore adjourned the proceedings until 22 August 2003 to enable the council to consider the proposal of settlement put forward on behalf of the applicant.
15 Curiously, on 14 August 2003 the applicant lodged a construction certificate from Anthony Protas Consulting Pty Limited dated 11 August 2003, which is a date after completion of the works the subject of the present consent. I say curiously because the provisions of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) in relation to construction certificates do not appear to allow for retrospective certification. The council raised this issue in correspondence as well as raising a concern that the Court had no power to grant retrospective development consent.
16 The Court can neither affirm the consent with the conditions as initially imposed by the council nor affirm the consent and impose the conditions sought by the applicant.
17 The applicant did not appear at a listed mention before Commissioner Moore on 5 September 2003. The proceedings were adjourned on that day for further mention on 19 September 2003. On 16 September 2003 the council’s solicitors received a Notice of Discontinuance, which was filed on 17 September 2003.
18 Part 11 r 5 of the Land and Environment Court Rules 1996 provides as follows:-
(1) If a party to any proceedings discontinues them in whole or in part, the Court may, on the application of another party, order the discontinuing party to pay the costs of any party against whom the discontinued claim was brought and who does not consent to the discontinuance.
(3) Nothing in this rule limits the Court’s power to order costs if proceedings are withdrawn under rule 2.(2) The costs payable to a party under any order made under this rule are to be the costs of the party occasioned by the discontinued claim and reasonably incurred before service on the party of notice of the discontinuance.
19 Section 69(2) of the Land and Environment Court Act 1979 provides as follows:-
- (2) Subject to the rules and subject to any other Act:
- (a) costs are in the discretion of the Court,
- (b) the Court may determine by whom and to what extent costs are to be paid, and
- (c) the Court may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on an indemnity basis.
20 Mr Wilson, on behalf of the applicant, relies upon the observations made by Cowdroy J in Aspect North v Lismore City Council [2001] NSWLEC 288, unreported to the effect that if the discontinuing party has conducted itself in a manner that could be reasonably expected of it, then it will be appropriate for the Court to make no order as to costs against that party. The basis for this submission stems from a reference to the effect of related earlier proceedings in matter No. 10476 of 1997 when, on 24 December 1997, the Court conditionally approved the construction of the residential flat building the subject of these proceedings (“the earlier consent”). The conditions referred to above in respect of the present consent are generally a reiteration of the conditions imposed by the Court in the earlier consent. The applicant contends that the present consent contains conditions which are invalid (s 80A of the EP&A Act; Building Owners and Managers Association of Australia Ltd v Sydney City Council (1984) 53 LGRA 54 where Cripps J adopted the observations of Lord Denning in Pyx).
21 It is not necessary for the Court make to any final determination in respect of the matters raised by Mr Wilson except in so far as they relate to resolving the issue of costs.
22 Although the merit and legal basis of the challenge to the conditions imposed by the council may have weighed in the applicant’s favour it, nevertheless did nothing to further the result of the litigation even after the council invited it to pursue a practical course to overcome the problems. Moreover, ultimately the actions of the applicant itself brought the matter undone. Firstly, the effect of the appeal was to render the present consent inoperative so that the Court could not adjudicate to grant consent in circumstances where the development the subject of the application had already been carried out. Secondly, the applicant allowed the council to proceed with the preparation for a hearing without either preparing its own case or advising the council that it had not done so, or even that it intended to. In the meantime, a private certifier apparently was persuaded to provide a construction certificate at a time when no such certificate could be made. Even if the principle enunciated by Cowdroy J in Aspect is a correct one to be applied, in the circumstances the facts do not support the exercise of the Court’s discretion on that basis.
23 The appropriate courses open to the applicant were to either seek a review of the council’s decision by making an application pursuant to s 82A or s 96 of the EP&A Act or to commence class 4 proceedings to have the errant conditions declared invalid. The Court does not know whether it was a lack of will or sound advice that resulted in the applicant’s ill-fated pursuit of the present appeal. The evidence is that the council, through its legal representatives, left the door open for the applicant to take another course but it elected not to take that opportunity. The applicant’s procrastination is also manifest in its lack of preparedness each time the matter came before Commissioner Moore.
24 This is an appropriate case whereby the Court should exercise its discretion to make an order for costs in favour of the council following the discontinuance of the proceedings without consent. It matters not whether the much discussed and, in my opinion, imprecise and unfortunate test of exceptional circumstances or the provisions of Pt 11 r 5 or s 69(2) are applied, the applicant has, by its own actions, exposed itself to an order for costs occasioned by the discontinued claim up to the time of discontinuance and since in respect of the present Notice of Motion.
25 The Court makes the following orders:-
(1) The applicant is ordered to pay the respondent’s costs thrown away by the discontinuance of the proceedings and the costs of the respondent’s Notice of Motion seeking an order for costs as agreed or assessed.
(2) The exhibits may be returned.
0