Carlisle Developments Pty Limited v Leichhardt Council - [2003] NSWLEC 310

Land and Environment Court

of New South Wales

CITATION: Carlisle Developments Pty Limited v Leichhardt Council [2003] NSWLEC 310

PARTIES:
APPLICANT
Carlisle Developments Pty Limited
RESPONDENT
Leichhardt Council

FILE 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 5

CASES 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 554

DATES OF HEARING: 14/11/2003

DATE OF JUDGMENT:
11/24/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr D P Wilson (Barrister)
SOLICITORS
Konstan Lawyers
RESPONDENT
Mr P M Jackson (Solicitor)
SOLICITORS
Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10167 of 2003

Talbot J

24 November 2003

Carlisle Developments Pty Limited

Applicant

Leichhardt Council

Respondent

Judgment

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWLEC 310
Decision Date: 11/24/2003

CaseChat Overview and Summary

In the matter of Carlisle Developments Pty Limited v Leichhardt Council, the Land and Environment Court of New South Wales was tasked with determining the question of costs following the discontinuance of proceedings without consent. The applicant, Carlisle Developments Pty Limited, had appealed against the conditions attached to a development consent granted by the respondent, Leichhardt Council. The council sought an order for costs on the grounds that the applicant had not only proceeded with the appeal despite the development works being completed but had also failed to prepare its case or engage in alternative dispute resolution processes.

The court examined the history of the litigation, noting the applicant's failure to respond to the council's invitation to lodge an application for review of the conditions. The applicant's solicitor had also failed to inform the court that the applicant did not intend to proceed with the appeal. Additionally, the applicant had allowed the council to prepare for a hearing without providing any evidence, further contributing to the costs incurred. The court found that the applicant's actions, including its delay in filing a construction certificate after the works had been completed, had led to the proceedings being rendered inoperative and unnecessary.

The court held that the applicant's conduct warranted the imposition of costs. The applicant's failure to take alternative courses of action, such as seeking a review of the council's decision or commencing class 4 proceedings to have the conditions declared invalid, exacerbated the situation. The court concluded that the applicant's own actions had exposed it to a costs order following the discontinuance of the proceedings. The court exercised its discretion under the Land and Environment Court Act 1979 and the Land and Environment Court Rules 1996 to order the applicant to pay the respondent's costs incurred up to the time of discontinuance and for the costs of the motion. The exhibits were to be returned.

Orders