Carlysle-Sainty v Coffs Harbour City Council

[2015] NSWLEC 37

Land and Environment Court

New South Wales

Medium Neutral Citation:	Carlysle-Sainty v Coffs Harbour City Council [2015] NSWLEC 37
Hearing dates:	6 February 2015
Date of orders:	06 February 2015
Decision date:	06 February 2015
Jurisdiction:	Class 1
Before:	Preston CJ
Decision:	Orders as set out at [26]
Catchwords:	PRACTICE AND PROCEDURE – joinder – appeal against refusal of application to modify development consent – neighbour applies by motion to be joined as a party to appeal – parties apply by motion to dismiss neighbour’s motion and for costs – neighbour withdraws motion for joinder – no leave required to withdraw – parties’ motions dismissed – costs of parties’ motions – appropriateness of reserving costs – parties’ undertaking not to apply for costs unless neighbour re-applies to be joined as a party
Legislation Cited:	Civil Procedure Act 2005 Land and Environment Court Act 1979 s 34 Vexatious Proceedings Act 2008 s 13 Uniform Civil Procedure Rules 2005 rr 7.14, 12.1, 13.4
Category:	Principal judgment
Parties:	Mr Ross Carlysle-Sainty and Mrs Eve Carlysle-Sainty (Applicants) Coffs Harbour City Council (Respondent)
Representation:	Counsel: Mr N M Eastman (Barrister) (Applicants) Mr M A Cottom (Solicitor) (Respondent) Mrs Klewer as agent for the applicant (Mr Klewer) on the motion for joinder via telephone Solicitors: Gadens Solicitors (Applicants) HWL Ebsworth (Respondent)
File Number(s):	10736 of 2014
Publication restriction:	No

Judgment

1. Mr and Mrs Carlysle-Sainty own land known as 81D Old Bucca Road, Moonee Beach. Their land is located approximately 500 metres from Old Bucca Road. Access is gained from Old Bucca Road via a private road built on a right of carriageway over three properties owned by neighbours. The Carlysle-Saintys have rights, as owners of a dominant tenement, to use the right of carriageway over the neighbouring servient tenements to access their land.

2. On 22 November 2012, Coffs Harbour City Council (‘the Council’) granted development consent to use the Carlysle-Sainty’s land as an animal establishment subject to conditions including deferred commencement conditions. One deferred commencement condition required the Carlysle-Saintys to undertake various works to upgrade the access road in the right of carriageway. These upgrade works included: installation of passing bays and associated signage (condition A(a)); installation of flood depth markers (condition A(b)); sealing the right of carriageway surface with hot mix bitumen for specified sections to mitigate dust from traffic generated by the development (condition A(c)); stormwater drainage works (condition A(d)); and widening of the intersection of the right of carriageway with Old Bucca Road (condition A(e)).

3. The Carlysle-Saintys lodged an application to modify the development consent by amending the deferred commencement condition A(c) to use a dust suppressant as an alternative to bitumen sealing of the right of carriageway. On 12 December 2013, the Council refused the modification application.

4. On 9 January 2014, the Carlysle-Saintys requested the Council to review its determination to refuse the modification application. The Carlysle-Saintys’ request for review differed from the original modification application in that it sought deletion of deferred commencement condition A(c) requiring sealing and also sought deletion of deferred commencement condition A(e) requiring intersection widening. On 14 March 2014, the Council refused the review application.

5. On 12 September 2014, the Carlysle-Saintys appealed to the Court against the Council’s determination of the modification application (including the determination on the review). The Carlysle-Saintys sought, and were granted, leave to amend their appeal to seek yet further modifications to the development consent by deletion of the whole of the deferred commencement conditions A, B and C. That is to say, the Carlysle-Saintys now seek to be relieved of any requirement to carry out any upgrade works to the right of carriageway.

6. The Court arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 to be held on-site on 22 December 2014. Amongst the objectors were Mr Robert Klewer and his mother, Mrs Lucy Klewer, who are the owners of a neighbouring property burdened by the right of carriageway. When development consent was granted for the Carlysle-Saintys’ animal establishment in 2012, the Klewers’ land was vacant. However, in 2013, Mr Klewer applied for and was granted development consent to erect and use a house on the land. Mr Klewer says he works on the land as a nursery hand. Mr Klewer objects to the Carlysle-Saintys’ modification application to delete all of the requirements of the deferred commencement conditions. He says the upgrade works are necessary and, indeed, he considers that the whole of the right of carriageway, and not just sections of it, should be sealed with bitumen.

7. At the conciliation conference, Mr Klewer became concerned that his views might not be put adequately before the Court on the appeal by the Council. Hence, on 30 December 2014, Mr Klewer applied to be joined as a party to the appeal by the Carlysle-Saintys.

8. Mr Klewer made his application by motion. As required, he filed and served a notice of motion applying for joinder as a party to the proceedings. The motion was originally listed by the Court on 23 January 2015.

9. Prior to the date, on 22 January 2015, the Council filed and served a notice of motion applying for an order declaring that "the interlocutory proceedings instituted by Robert Klewer by way of his notice of motion filed on 30 December 2014" are proceedings to which s 13(2) and (3) of the Vexatious Proceedings Act 2008 apply, and an order that Mr Klewer's motion be dismissed. The Council sought an order that Mr Klewer pay the Council’s cost of the motion.

10. On 23 January 2015, the Acting Registrar of the Court stood over Mr Klewer's motion to 30 January 2015 for directions.

11. On 29 January 2015, the Carlysle-Saintys filed and served their own notice of motion seeking orders that Mr Klewer's motion be dismissed on the basis that he is a person under legal incapacity and may not commence proceedings except by his tutor in accordance with r 7.14 of the Uniform Civil Procedure Rules 2005 (‘the UCPR’); alternatively, that Mr Klewer's motion be stayed pending the appointment of a next friend in accordance with r 7.14 of the UCPR; and, alternatively, that Mr Klewer's motion be dismissed as frivolous, vexatious or an abuse of process in accordance with r 13.4 of the UCPR. The Carlysle-Saintys sought an order that Mr Klewer pay their costs of the motion.

12. On 30 January 2015, the Registrar fixed the Council’s motion and the Carlysle-Saintys’ motion for hearing on 6 February 2015 and stood over Mr Klewer's motion for directions on that day, and made various other directions concerning evidence.

13. Subsequently, there was a good deal of communications and correspondence between Mr Klewer and Mrs Klewer, the Registrar, and the legal representatives of the Council and the Carlysle-Saintys about Mr Klewer's ability to attend the hearing of the Council's motion and the Carlysle-Saintys’ motion on 6 February 2015. The hearing had been set to be in court in Sydney on that day. Mr Klewer and Mrs Klewer had indicated to the Registrar that:

• they had been evicted from their home and had only the clothes on their back with no access to a computer or printer (only a Galaxy tablet);

• Mr Klewer had recently been assaulted and had a head injury;

• they were unable to travel to Sydney as their priority was to get their house back; and

• they did not have the financial means to travel to Sydney in any event.

14. Discussions took place to see whether the Klewers could participate in the hearing by telephone conference.

15. However, on 4 February 2015, Mr Klewer notified the Court that he wished to withdraw his motion to be joined to the appeal. The withdrawal of Mr Klewer's motion would render the hearing of the Council’s motion and the Carlysle-Saintys' motion to dismiss Mr Klewer's motion otiose. Mrs Klewer expressed the reasons for Mr Klewer's withdrawal of his motion as follows:

The two parties in this case wrote to Robert today stressing that if they win their motions against him they will seek costs. In light of the situation Robert and I are in, especially the head trauma and attempt on his life and losing our home, he cannot proceed any further.

16. The Council and the Carlysle-Saintys initially did not consent to Mr Klewer withdrawing his motion and sought for Mr Klewer to pay their costs in relation to all of the motions.

17. At the hearing on 6 February 2015, the Council and the Carlysle-Saintys appeared by their respective legal representatives. Mrs Klewer applied for and was granted leave to appear as agent for Mr Klewer and participated by telephone conference.

18. Mr Klewer confirmed that he withdrew his motion to be joined as a party to the proceedings. The Council and the Carlysle-Saintys no longer opposed Mr Klewer withdrawing his motion. The Council and the Carlysle-Saintys also agreed that, with the withdrawal of Mr Klewer's motion, their respective motion should be dismissed.

19. I should note that Mr Klewer did not need the consent of the Council or the Carlysle-Saintys to withdraw his motion, or in the absence of consent, the leave of the Court. Rule 12.1 of the UCPR dealing with discontinuance of proceedings did not apply to Mr Klewer's motion. His motion applying to be joined as a party to the appeal brought by the Carlysle-Saintys against the Council was not in itself proceedings for the purposes of the Civil Procedure Act 2005 or the UCPR. By his motion or, if his motion had been granted, on the appeal proceedings, Mr Klewer was making no common law or statutory claim for substantive relief against either the Council or the Carlysle-Saintys. Hence there was no claim for relief to be discontinued under r 12.1 of the UCPR. Mr Klewer could, therefore, withdraw his notice of motion and hence no longer maintain his application by motion to be joined as a party.

20. The withdrawal of Mr Klewer's motion and the dismissal of the Council's and the Carlysle-Saintys’ motions meant that the only question remaining was in relation to the costs of the three motions. The Carlysle-Saintys and the Council sought an order that the costs of the withdrawn and dismissed motions be reserved. The Carlysle-Saintys initially indicated that they would not seek to apply under the reservation of the question of costs for a costs order in relation to the three motions if Mr Klewer were not to make an application in the future for the same or similar relief to be joined as a party to the proceedings. I understood this to refer to Mr Klewer applying in the future to be joined as a party to this appeal by the Carlysle-Saintys against the Council's determination of their modification application. Mr Klewer indicated that he had no present intention of applying again to be joined as a party to this appeal. Hence, on this basis, the Carlysle-Saintys would not make application for costs and there would be no substantive costs order made against any party. The Council joined the Carlysle-Saintys in that submission. In these circumstances, Mr Klewer was prepared to agree to the question of costs being reserved.

21. The Carlysle-Saintys then sought to alter their position so as to enlarge the circumstances that might trigger their making an application for costs of the withdrawn and dismissed motions. These circumstances included if Mr Klewer sought to judicially review in the Supreme Court any decision of this Court disposing of the Carlysle-Saintys’ appeal, bring proceedings in Class 4 of this Court's jurisdiction to judicially review the validity of the development consent granted by the Council in 2012 or enforce compliance with the development consent and any conditions concerning upgrade works on the right of way. I indicated that I would not be minded to reserve the question of costs of the motions in these circumstances. The timeframe in which an application for costs could be made would be open ended and would not be confined to the duration of the current appeal proceedings. There would also be many more circumstances that would trigger the Carlysle-Saintys and the Council making an application for costs. Any litigation by Mr Klewer to uphold his rights as an owner of a servient tenement or to protect his legitimate use and enjoyment of it from interference could trigger the Carlysle-Saintys or the Council making an application for costs of the withdrawn and dismissed motions in these proceedings. This would be an unreasonable inhibition on the rights of Mr Klewer. The Court should not facilitate this inhibition by reserving the costs of the withdrawn and dismissed motions in these circumstances.

22. It was necessary to adjourn the hearing at 11.00am to allow Mr Klewer to attend a medical appointment. The hearing was adjourned to 2.00pm.

23. During the adjournment the Carlysle-Saintys and the Council reconsidered their position and reverted to their original submission that the costs of the motion be reserved on the basis that they would only apply for an order for costs of the motions if Mr Klewer were to make another application to be joined as a party to this appeal and not in any other circumstance including the bringing of other litigation by Mr Klewer. This position was stated by the legal representatives for the Carlysle-Saintys and the Council at the resumption of the hearing at 2.00pm.

24. I am prepared to reserve the question of the costs of the withdrawn and dismissed motions on this basis. First, the period within which the Carlysle-Saintys or the Council could make application for a costs order in relation to the withdrawn and dismissed motions would be confined up to but not beyond the final orders disposing of this appeal against the determination of the modification application. That should be by the middle of this year. Secondly, application to determine the question of costs reserved would only be made by the Carlysle-Saintys and the Council if Mr Klewer again applies to be joined as a party to this appeal, and in no other circumstance. Thirdly, the likelihood of that event occurring is, on current information, low. Mr Klewer has said that he has no present intention to make any further application to be joined to the appeal. Fourthly, each of the Council, the Carlysle-Saintys and Mr Klewer agree to the costs of the motions being reserved.

25. In these circumstances, I am prepared to accede to the common request of the parties and Mr Klewer to reserve the question of the costs of the motions.

26. The orders of the Court are:

1. Note that Mr Klewer withdraws his motion filed on 30 December 2014 to be joined as a party to the proceedings.

2. Dismiss the motion of Coffs Harbour City Council filed on 22 January 2015.

3. Dismiss the motion of Ross Carlysle-Sainty and Eve Carlysle-Sainty filed on 29 January 2015.

4. Reserve the question of the costs of each of the motions.

5. Note the undertaking of Coffs Harbour City Council, and Ross Carlysle-Sainty and Eve Carlysle-Sainty that they would only apply for an order for costs of the motions if Mr Klewer were to apply in the future to be joined as a party to these proceedings.

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Decision last updated: 19 March 2015