Chisholm v Pittwater Council

[2000] NSWLEC 210

Land and Environment Court

of New South Wales

CITATION:

Chisholm v Pittwater Council and Anor [2000] NSWLEC 210

PARTIES:

APPLICANT:
Samuel Chisholm

FIRST RESPONDENT:
Pittwater Council

SECOND RESPONDENT:
Willeroon Pty Ltd

FILE NUMBER(S):

40046 of 2000

CORAM:

Talbot J

KEY ISSUES:

Interlocutory Relief :- pending appeal to Court of Appeal
Costs :- two respondents separately represented

LEGISLATION CITED:

CASES CITED:

Castlemaine Tooheys Limited and Ors v State of South Australia (1986) 161 CLR 148;
Hamill v Byron Shire Council (1998) 98 LGERA 400;
Hoyts Cinemas Limited v Shellharbour City Council (2000) 108 LGERA 103;
Oshlack v Richmond River Council (1998) 193 CLR 72;
Packham v Minister for the Environment and Anor (1993) 80 LGERA 205;
Scott and Ors v Wollongong City Council and Anor (1992) 75 LGERA 112

DATES OF HEARING:

13/09/2000

DATE OF JUDGMENT:

09/28/2000

LEGAL REPRESENTATIVES:

APPLICANT:
Mr N A Hemmings QC (Solicitor)
SOLICITORS:
Allen Allen & Hemsley

FIRST RESPONDENT:
Mr R P Lancaster (Barrister)
SOLICITORS:
Mallesons Stephen Jaques

SECOND RESPONDENT:
Mr W P O'Rourke (Solicitor)
SOLICITORS:
Deacons Graham & James

JUDGMENT:

IN THE LAND AND Matter No. 40046 of 2000
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 28 September, 2000

Samuel Chisholm
Applicant

v
Pittwater Council
First Respondent

Willeroon Pty Ltd

Second Respondent

REASONS FOR JUDGMENT


1. Judgment was delivered in this matter on 11 July 2000 when the application was dismissed and the question of costs reserved.

2. On 13 September 2000 three notices of motion were listed for hearing.

3. The applicant consents to the order in the notice of motion filed by the first respondent on 23 August 2000 that the applicant pay the first respondent’s costs.

4. The other two notices of motion filed by the second respondent respectively seek an order for costs and that the interlocutory injunction granted by Bignold J on 7 March 2000 be dissolved.

5. The applicant has lodged a Notice of Appeal against the Court’s decision to dismiss the application.

The discharge of the interlocutory order

6. Having regard to the issues raised and questions argued before the Land and Environment Court there is clearly a serious question to be tried on appeal in respect of the construction and application of cl 32 of the Pittwater Local Environmental Plan 1993.

7. Given that the second respondent proposes to demolish the house which is claimed to be subject to cl 32, it is self evident that there is a potential for irreparable damage to be caused to the heritage significance of the Heritage Conservation Area in the sense that once the building is destroyed, if it is significant, it is unlikely that it could be reinstated in any relevant way. It is timely, therefore, that the injunction should be maintained in order to preserve the subject of the claim pending the outcome of the appeal. On the balance of convenience there is no pressing practical, economic or safety reason which is raised in an attempt to persuade the Court that the second respondent in the meantime should be entitled to act on the development consent it obtained from the council.

8. The principles to be applied to the grant of interlocutory relief pending appeal are as stated by the High Court in Castlemaine Tooheys Limited and Ors v State of South Australia (1986) 161 CLR 148 at 153.

9. Furthermore, there is the issue of a public interest which is the underlying basis for provisions such as cl 32.

10. On the balance of convenience, it is the Court’s view that the status quo should be preserved until the Court of Appeal makes its decision. Although Mr Hemmings makes no claim for public interest on behalf of the applicants, he nevertheless contends that the claim has a public character which should be respected.

11. The Court has the power pursuant to s 59(1) of the Land and Environment Court Act 1979 to suspend the operation of the order made by Bignold J or the decision made by the Court on 11 July 2000. The effect of maintaining the injunction made by Bignold J will be to suspend the order dismissing the proceedings.

12. In my opinion it is appropriate at this stage to dismiss the motion by the second respondent seeking an order that the interlocutory injunction granted by Bignold J on 7 March 2000 be dissolved.

Costs of the second respondent

13. Prima facie the second respondent is entitled to expect the Court to exercise its discretion in its favour as a successful party in the litigation.

14. Having joined the second respondent as a proper party to the proceedings, Mr Hemmings QC seeks to argue on behalf of the applicant that it should not thereafter have taken an active part in the proceedings where its own conduct was not in issue.

15. It is axiomatic that Courts recognise the heavy burden placed upon parties to litigation in terms of costs and it is appropriate for Courts to act so that there is not a disproportionate burden on one party and that the costs are kept within appropriate limits.

16. In Oshlack v Richmond River Council (1998) 193 CLR 72 the High Court was concerned with the question of whether a council as a successful respondent was entitled to an order for costs.

17. While nevertheless recognising what has been identified as a general rule that a wholly successful defendant should receive its costs unless good reason is shown to the contrary, the High Court recognised that there could be circumstances where it would be entirely appropriate for, if not incumbent upon, a local government body not to assume the position of a protagonist and to avoid incurring substantial costs by submitting to the orders of the Court, thereby allowing the dispute to go forward as one between the applicant invoking the “public interest” and the body against which relief is sought.

18. Although the High Court was really approaching the questions raised before it on the issue of whether Stein J at first instance had correctly exercised his discretion not to make an order for costs in favour of the council, it nevertheless canvassed the general principles that apply to a public authority. In the present case the applicant has consented to an order in favour of the public authority against whom no direct relief was sought except to the extent of a declaration as to the validity of its action in granting development consent.

19. The only relief by way of an order was against the second respondent who the applicant sought to restrain from commencing or carrying out or causing to be commenced or carried out any demolition works on the subject land.

20. The Court has been taken to the observations made by Bignold J in Hamill v Byron Shire Council (1998) 98 LGERA 400 and Hoyts Cinemas Limited v Shellharbour City Council (2000) 108 LGERA 103 but I find neither of these cases to be helpful in the current dispute where neither of the respondents were joined as interveners. In the present case, the first and second respondents were both named by the applicant in the original application.

21. Although the evidentiary issues were fundamentally the same for both respondents, the interests of the second respondent diverged from those of the first respondent. It was in the interest of the first respondent to uphold the validity of its process of determination, whereas the second respondent had a vested interest in maintaining the benefit of the development consent as a private interest.

22. The second respondent, its consultants and advisers have been intimately involved in each stage of the evaluation process concerning the future of the property Willeroon, particularly in relation to its alleged heritage significance.

23. Mr Hemmings makes much of the point that almost the whole of the affidavit evidence prepared on behalf of the second respondent was rejected. That is not a matter which weighs heavily on the question whether the Court should make a costs order in favour of the second respondent but ultimately rests with the assessing officer.

24. Mr Lancaster, who appeared for the council, and Mr McClellan QC, who appeared for the second respondent, addressed the Court separately but in conjunction, being careful not to overlap the others submissions or to be repetitive to an unnecessary extent. Mr Lancaster expressly left some matters for Mr McClellan to address and Mr McClellan adopted the first respondent’s submissions and then amplified them in some respects. A comprehensive table of the evidentiary matters upon which the respondent relied to establish the existence of a conservation plan was prepared by the second respondent and adopted by the council.

25. Despite the words of caution expressed by Mahoney JA in Packham v Minister for the Environment and Anor (1993) 80 LGERA 205 at 227 - 228 the Court of Appeal nevertheless recognised in that case that the separate representation of the individual landholder was not inappropriate as “[t]heir interests were not congruent with those of the Minister” .

26. Notwithstanding that Cripps J had made an order below that two respondents share the burden of costs, the Court of Appeal did not agree with him in Scott and Ors v Wollongong City Council and Anor (1992) 75 LGERA 112 and held that the respondents were entitled to be separately represented and each to have an order for their costs.

27. It is the Court’s view that it was reasonable for the second respondent to be separately represented throughout this hearing. There was no succinct aspect that could have been left entirely to the first respondent. The issues were inextricably interwoven. This can be appreciated from an understanding of two of the issues. Firstly, that the decision of the council to grant development consent to the second respondent was manifestly unreasonable and secondly, whether the Court should exercise its discretion to make any orders in the event the applicant established his case.

28. The approach of the two respondents acting in tandem ensured that the proceedings were not unnecessarily prolonged by their separate representation. As Samuels AP observed in Scott , the quantum of the second respondent’s costs and the extent to which any of the costs incurred were unjustified or unnecessary are matters which can be left to the consideration of the assessing officer.

29. It is the Court’s opinion that the second respondent is entitled to an order for its costs.

Orders

30. The formal orders of the Court are:-


1. By consent the applicant is ordered to pay the first respondent’s costs.

2. The applicant is ordered to pay the second respondent’s costs.

3. The second respondent’s notice of motion filed 1 September 2000 is dismissed.