Ebsworth v Sutherland Shire Council
[2006] NSWLEC 536
•17/08/2006
Land and Environment Court
of New South Wales
CITATION: Ebsworth v Sutherland Shire Council [2006] NSWLEC 536 PARTIES: APPLICANT
RESPONDENT
Adrienne Ebsworth
Sutherland Shire CouncilFILE NUMBER(S): 11664 of 2004 CORAM: Jagot J KEY ISSUES: Appeal :- Want of prosecution - Stay of proceedings - Appeal dismissed LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Rules 1996 Pt 12 r 2DATES OF HEARING: 10/08/2006
DATE OF JUDGMENT:
08/17/2006LEGAL REPRESENTATIVES: APPLICANT
Ms A Ebsworth (in person)
SOLICITORS
N/ARESPONDENT
Ms E Ranken (solicitor)
SOLICITORS
Pike Pike & Fenwick
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESJagot J
17 August 2006
11664 of 2004
ADRIENNE EBSWORTH
ApplicantJUDGMENTSUTHERLAND SHIRE COUNCIL
Respondent
Jagot J:
Introduction
1 These are short reasons for my decision to make an order dismissing the appeal sought in the Council’s notice of motion dated 10 July 2006.
2 The first matter I need to observe is that the Chief Judge has informed me that he has revoked the delegation to Senior Commissioner Roseth in relation to this matter. Accordingly, I can deal with the Council’s notice of motion.
3 The Council’s notice of motion sought an order that the proceedings be dismissed pursuant to Pt 12 r 2 of the Land and Environment Court Rules 1996. The Council says that the applicant has not met the conditions of the stay as set out in orders made by consent on 16 June 2006 and, hence, the applicant has not prosecuted the proceedings.
4 Ms Ranken, the solicitor employed by the solicitors for the Council, has sworn two affidavits in support of the notice of motion, being an affidavit of 31 March 2006 and an affidavit of 10 July 2006 that set out the history of these proceedings. I do not propose to repeat the history as set out in those affidavits except to observe the following.
5 The proceedings went to a first call over on 4 February 2005. On 3 May 2005 the applicant amended the development plans. The Council notified these amended plans, and the Council took steps to amend the issues it raised in the proceedings in response to the amended plans. On 9 August 2005, the hearing dates that had been allocated for the proceedings were vacated in order to enable the applicant again to amend the plans. The costs of the vacation of the hearing dates were reserved because the Council had indicated to the Court that it did not object to the vacation provided its position on costs was protected.
6 On 19 August 2005, the applicant filed further amended plans. Again, the Council notified those plans, and took steps in reliance on those amended plans (including the filing and serving of a further amended statement of issues).
7 On 30 January 2006, a few days before the re-scheduled hearing before Senior Commissioner Roseth, the applicant served yet a further set of amended plans.
8 The Senior Commissioner heard the appeal on 2 and 3 February 2006, and the parties made further submissions thereafter. Apparently, during the making of those further submissions, the applicant sought to rely on another set of amended plans.
9 The Senior Commissioner provided some findings to the parties on 17 March 2006 which did not finally dispose of these proceedings. The Senior Commissioner found that if consent were to be granted, further amendments to the development needed to be made. The Senior Commissioner gave the applicant leave to make these amendments by 31 March 2006, and also made directions which would require the Court appointed expert to provide a further brief report on those further amended plans.
10 In the meantime, on 30 March 2006, the Council filed and served a notice of motion for costs. Ms Ranken’s affidavit of 31 March 2006 sets out the circumstances founding that application for costs. The annexures included correspondence which disclosed that the fees of the Court appointed expert (for which both parties were jointly and severally liable pursuant to the rules of the Court) had not been paid by the applicant, thereby generating concern on the part of the Council that it would be left wholly responsible for those fees. I ordered that the proceedings be stayed pending the resolution of the payment of the fees of the Court appointed expert.
11 Ms Ranken’s affidavit of 10 July 2006 sets out the (complicated) sequence of events which followed. In short, there were a number of appearances, culminating in consent orders between the parties, the effect of which was to continue the stay of the appeal. The conditions for the lifting of the stay were that the applicant pay the Council’s costs as agreed in the sum of $20,000 by bank cheque by 7 July 2006 (as payment of the costs sought in the Council’s notice of motion of 30 March 2006) and that some outstanding costs of the Court appointed expert, Mr Nigel Dickson, in the sum of $4,757.97 also be paid.
12 Ms Ranken’s affidavit of 10 July 2006 discloses that the Council’s costs as agreed in those consent orders have not been paid, and there is no evidence before me from which I would infer that the Court appointed expert has been paid the outstanding sum. Ms Ranken’s affidavit also attaches some documents which disclose that the property, the subject of the proceedings, was listed for sale by the first mortgagee. Ms Ranken has informed me that the property has been sold, although neither party could confirm the completion date for the sale. Ms Ebsworth raised issues as to whether or not that sale would remain on foot or not. Ms Ebsworth appeared on this motion because her solicitor filed and served a notice of ceasing to act on 7 August 2006.
13 The Council said that the proceedings should be dismissed for a number of reasons. The Council had already incurred significant costs. The Council accepted that (presumably) it had no real likelihood of recovering its costs, given the financial position of the applicant. The conditions of the stay set out in the consent orders do not have any reasonable likelihood of being satisfied. In those circumstances, why, the Council asked, or I infer it asked, should it be put to the further expense of the Court appointed expert reviewing further amended plans, and attending another hearing before the Senior Commissioner, particularly in circumstances where the evidence suggests that the applicant no longer controls the property, the subject of the development application.
14 The applicant queried the consent orders thinking that they were unfair to require costs to be paid at the outset. The applicant questioned whether the consent orders reflected her instructions. She said that the only real hope of the costs and fees being paid was for the development consent to be obtained, thereby increasing the value of the property. Further, that (in fairness) it should be understood that the reason that she was likely to be made bankrupt was because of the Council’s delay in approving the development. Finally, that there was no basis for assuming that the sale would necessarily be completed.
15 It seems to me that the issue here is whether the proceedings should remain stayed pursuant to the consent orders or whether they should be dismissed as the Council seeks. Whether framed as a want of prosecution or otherwise, it cannot be gainsaid that these proceedings have had an unhappy history. It also seems to me that there is no end in sight. There has to be a question whether it can be just to allow these proceedings to be maintained in the circumstances I have described. When the consent orders were made, it was on the basis of information provided by the solicitor for the applicant that, at that time at least, there was a basis to anticipate that the conditions of the stay would be able to be satisfied within some reasonable time.
16 In all of the circumstances, I have concluded that the order sought by the Council should be granted and these proceedings should be dismissed. My reasons are as follows. First, on the basis of the evidence before me, there is no reasonable likelihood of the conditions of the stay being met in the foreseeable future. Secondly, the stay was appropriate in the unusual circumstances of this matter. The applicant has been provided with numerous opportunities to amend its plans in order to put forward an appropriate development for the site. The matter nevertheless remains unresolved. To satisfy the stay conditions, the parties would necessarily be exposed to further costs, including the further fees of the Court appointed expert to review the amended plans. However, there are already fees of the Court appointed expert which remain unpaid and for which the parties are jointly and severally liable. Thirdly, there remain the reserved costs for the vacation of the original hearing date, and the subsequent order for costs in favour of the Council. As the Council itself has said, it seems unlikely that the Council will recover those costs. Fourthly, there is the length of time for which this matter has remained on foot, both overall, and also from the interim decision of the Senior Commissioner. Fifthly, I cannot reasonably anticipate that the applicant will be able to exploit any development consent on this property, if consent were granted. Finally, this is a Class 1 appeal against the refusal of a development application. The Environmental Planning and Assessment Act 1979 provides that a person who is the owner of land or a person who has the consent in writing of an owner of land may lodge a development application (and more than one development application) at any time.
17 When I weigh all of these factors up, I am satisfied that it is in the interests of justice that the orders sought by the Council be granted. The applicant has not taken the steps required to bring this matter to its conclusion. It would be unreasonable to permit these proceedings to remain on foot, thereby exposing the Council to a further costs impost in the particular and unusual circumstances of this case. For these reasons, I make an order pursuant to the Council’s notice of motion that the appeal is dismissed. The exhibits may be returned.
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