Fagin v Australian Leisure and Hospitality Group Pty Limited

[2017] NSWCA 306

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Fagin v Australian Leisure and Hospitality Group Pty Limited [2017] NSWCA 306
Hearing dates:	27 November 2017
Date of orders:	01 December 2017
Decision date:	01 December 2017
Before:	McColl JA
Decision:	Notice of motion dismissed with costs
Catchwords:	APPEALS – security for costs – whether special circumstances – where appellant impecunious – where order for security for costs would stifle appeal
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Detala Pty Limited v Byron Shire Council [2002] NSWCA 404; (2002) 133 LGERA 1 Green v Kogarah Municipal Council [2001] NSWCA 123; (2001) 115 LGERA 231 Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council (2005) 63 NSWLR 124; [2005] NSWCA 169 K & M Prodanovski v Wollongong City Council [2013] NSWCA 202; (2013) 195 LGERA 23 KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 Li v State of New South Wales [2013] NSWCA 165 Live Board Holdings Ltd v Cody Live Pty Ltd [2017] NSWCA 302 Port Stephens Council v SS & LM Johnston Pty Ltd; Port Stephens Council v Port Stephens Veterans and Citizens Aged Care Ltd [2007] NSWLEC 30; (2007) 152 LGERA 193 Porter v Gordian Runoff Ltd [2004] NSWCA 171 Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 Procon (Great Britain) Ltd v Provincial Building Co Ltd [1984] 1 WLR 557 R v Baker [2002] NSWCCA 184 Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136 Xenos v FAL Healthy Beverages Pty Ltd [2017] NSWCA 240
Category:	Principal judgment
Parties:	Australian Leisure and Hospitality Group Pty Limited (Respondent/Applicant on the notice of motion) Sally-Anne Maree Fagin (Appellant/Respondent on the notice of motion)
Representation:	Counsel: S Nash (Respondent/Applicant on the notice of motion) Sally-Anne Maree Fagin (Appellant/Respondent on the notice of motion – self represented)   Solicitors: Thomson Geer (Respondent/Applicant on the notice of motion) Sally-Anne Maree Fagin (Appellant/Respondent on the notice of motion – self represented)
File Number(s):	2017/187102
Publication restriction:	No
Decision under appeal	Court or tribunal: Land and Environment Court Jurisdiction: Class 4 Citation: [2017] NSWLEC 59 Date of Decision: 29 May 2017 Before: Robson J File Number(s): 2016/195871

Judgment

1. McCOLL JA: Australian Leisure and Hospitality Group Pty Limited (Australian Leisure) seeks security for the costs of an appeal brought by Ms Sally-Anne Maree Fagin against a decision of his Honour Justice Robson dismissing Class 4 proceedings Ms Fagin brought in the Land and Environment Court. [1]

   1. Sally-Anne Maree Fagin v Australian Leisure and Hospitality Group Pty Limited [2017] NSWLEC 59.

2. Australian Leisure has operated the Charles Hotel (hotel) in Fairy Meadow since 2012 pursuant to a lease from the owner Laundy (Exhibition) Pty Ltd. Ms Fagin has lived not far from the hotel since 2005. In 2016, Ms Fagin commenced the Class 4 proceedings seeking orders compelling Australian Leisure to comply with condition 17 of Development Consent DA-2006/918 (2006 Consent) granted by Wollongong City Council (Council) on 14 November 2006, and other orders, relevantly, in relation to audio speakers installed in the beer garden in the hotel grounds. Condition 17 prohibited “live or recorded music or amplified sound…within the beer garden.”

3. Ms Fagin failed before the primary judge, in essence, because his Honour held that the 2006 Consent had lapsed. Accordingly, Australian Leisure was not bound by condition 17. Ms Fagin was unsuccessful in respect of the other orders she sought for reasons I shall explain.

4. On 25 August 2017 Ms Fagin filed a notice of appeal (original notice of appeal). The original notice of appeal contained 33 grounds of appeal. However, on the hearing of the motion, Ms Fagin sought leave to amend it. Australian Leisure did not oppose that application. The amended notice of appeal contains eight grounds of appeal, some overlapping, four directed to the 2006 Consent, two which raise substantially the same question as to whether the erection of audio speakers in the beer garden required development consent and two concerning a further development consent granted in 2016 (2016 Consent), the latter to some extent also concerning the audio speakers.

Security for costs motion

5. The notice of motion seeking security for costs was filed on 23 October 2017. It seeks security for costs of the appeal pursuant to r 51.50 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) in the amount of $72,500.

6. In support of the motion, Australian Leisure read the affidavit of Joanna Sing Rou Ling, a solicitor employed by its solicitors, affirmed on 23 October 2017. Ms Ling annexed to her affidavit various emails from Ms Fagin stating, in substance, that she did not “care about costs” and that she was “judgment proof” as her only income was Centrelink payments which she asserted cannot be garnisheed. Based on copies of her firm’s costs agreement, and those of senior and junior counsel, Ms Ling estimated Australian Leisure’s total costs of the appeal as $67,500 - $72,500 (GST exclusive).

Background

7. In her Class 4 proceedings, Ms Fagin sought the following relief:

“1   An order that the Defendant be ordered to comply with the terms of section 17 of Development Consent DA-2006/918 and cease playing live and recorded music in the outdoor beer garden of the Charles Hotel, 92-96 Princes Hwy Fairy Meadow.

2   An order that the Defendant remove the large video screen and audio speakers erected on the outside wall of the hotel in the beer garden which were erected without Development Approval from Wollongong Council.”

8. The following “relatively uncontentious” background facts can be taken from paragraph [5] of the primary judgment:

“(1)   Approximately four years ago, Ms Fagin observed certain works taking place at the rear ‘open air beer garden’ area of the hotel. These works included the installation of a ‘large video screen and audio speakers’. She has since experienced both live and recorded music being played in the beer garden area, which she says has interfered with her enjoyment of her premises and has had a ‘negative effect’ on her health.

…

(3)   Ms Fagin attended the premises on 19 January 2017 and observed that, adjacent to the eastern wall of the beer garden, there were ‘three planter beds’ containing palm trees … .

(4) …..

(e)   on 29 June 2006 a development application was lodged [by PRD Architects (PRD) on behalf of the then owners of the hotel] for ‘proposed alterations and additions’, and consent was granted in November 2006 in respect of ‘internal alterations, enclosure of rear patio, awning over patio and part of beer garden, and use of beer garden’…; and

(f) in February 2016 Council granted development consent for development described as ‘Commercial – alterations and additions to existing Charles Hotel’ (DA-2015/1535) subject to specific conditions that included ‘NSW Independent Liquor and Gaming Authority (ILGA) Criteria for Noise Control’ (condition 20), ‘Noise Compliance’ (condition 22) and ‘Noise Restrictions on Hotel Development’ (condition 23).

…

(9)   The plans accompanying the [2006] development application indicated the extent of the work the subject of the development application and noted:

…

(c)   on the ‘Elevation and Section – DA 03A’ (‘DA 03A’), depictions of a ‘New water feature’, ‘new wall, planter and water feature’ and ‘new ramp’ (in the east elevation) and ‘new wall and planter’ (in the cross-section). It is clear from these two depictions that the then proposal was for planter beds and a water feature along and adjacent to the southern boundary;

….

(14)   On 14 November 2006 Council determined the development application lodged on 29 June 2006 and issued the 2006 Consent. The 2006 Consent expressly incorporated plans DA 01A, DA 02A and DA 03A (only) and described the development as:

Description

Internal alterations, enclosure of rear patio, awning over patio and part of beer garden and use of beer garden.

(15)   The 2006 Consent contained the following conditions:

Approved Plans and Specifications

[3] Construction Certificate

A Construction Certificate must be obtained from Council or an Accredited Certifier prior to work commencing.

…

[5] Occupation Certificate

A final Occupation Certificate must be issued by the Principal Certifying Authority prior to occupation or use of the development. In issuing an Occupation Certificate, the Principal Certifying Authority must be satisfied that the requirements of Section 109H of the Environmental Planning and Assessment Act 1979, have been complied with as well as all of the conditions of the Development Consent.

…

[17] Noise Control

No live or recorded music or amplified sound is permitted within the beer garden.

…

(17)   There is no evidence before the Court that a Construction Certificate or an Occupation Certificate have been issued in relation to the 2006 Consent.”

9. The background facts also included an extensive description of works undertaken prior to the grant of the 2006 Consent. In short, prior to 18 July 2006, works (otherwise provided for in the plans accompanying the development application) were carried out including the provision of footings, laying of a concrete slab, raising of the floor level and construction of a ramp and external walls (2006 Works). On 18 July 2006, after receipt of the development application, the Council wrote to PRD requiring it to submit an application for a Building Certificate in respect of the 2006 Works. This was done and, on 9 October 2006, the Council issued a Building Certificate (BC-2006/221) under s 149D of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) noting under “Description of Building”, “Floor and boundary walls of Beer Garden at rear of hotel”. [2]

   2. Ibid (at [5](10) – (13)).

10. Ms Fagin’s case was that the 2006 Consent was operative because certain works had been undertaken on the premises which constituted physical commencement of work relating to that approved by the 2006 Consent. She relied on the completion of the 2006 Works,[3] the use of the land as a beer garden as authorised by the 2006 Consent,[4] and the installation of planter boxes in the beer garden after the 2006 Consent was granted. [5]

    3. Ibid (at [7](1)).

    4. Ibid (at [7](2)).

    5. Ibid (at [7](3)).

11. She also contended the video screen and the audio speakers to the extent they facilitated the playing of live and recorded music, were both in breach of condition 17, alternatively, that they independently required development approval.

12. Accordingly, Ms Fagin submitted that Australian Leisure’s conduct in erecting a large video screen and audio speakers contravened condition 17 of the 2006 Consent. [6]

    6. Ibid (at [7]).

13. Australian Leisure contended that the 2006 Consent lapsed on 14 November 2011 by reason of s 95(4) of the EPA Act as there had been no physical commencement of “work” within the meaning of that provision “relating to” the 2006 Consent.

14. Australian Leisure submitted that the video screen was removed on about 25 January 2017. Insofar as the audio speakers were concerned, Australian Leisure submitted they did not require development approval as they were an exempt development pursuant to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) (SEPP 2008), cll 1.15 and 1.16. [7]

    7. Ibid (at [18](3)).

15. Insofar as the planter boxes were concerned, Australian Leisure submitted that, to the extent that those works required development consent, they were unlawful works and could not constitute works for the purposes of s 95(4) because, pursuant to condition 3 of the 2006 Consent and s 81A(2) of the EPA Act, construction of planter boxes were works that were required to be carried out after a Construction Certificate had been issued for those works. It argued that searches of the Council’s records show no record of any Construction Certificate or Occupation Certificate being issued in relation to the 2006 Consent. [8]

    8. Ibid (at [12]).

16. Australian Leisure also contended that, should the Court find against its submissions, the Court should in any event exercise its discretion and not grant the relief Ms Fagin sought. [9]

    9. Ibid (at [8]).

17. The primary issue in the proceedings, accordingly, was whether the 2006 Consent was operative. If it was, Ms Fagin’s alternative claim for relief was otiose as Australian Leisure would have been in breach of condition 17 of the 2006 Consent.

Legislative framework

18. To a large extent, resolution of the primary issue turned on the application of s 95(4) of the EPA Act which relevantly provides:

“95   Lapsing of consent

(1) A development consent lapses 5 years after the date from which it operates.

…

(4) Development consent for:

(a) the erection of a building, or

(b) the subdivision of land, or

(c) the carrying out of a work,

does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section.

(5) Development consent for development other than that referred to in subsection (4) does not lapse if the use of any land, building or work the subject of that consent is actually commenced before the date on which the consent would otherwise lapse.”

19. As to the audio speakers issue, in the EPA Act, pursuant to s 4(1), exempt development is development for which provision is made as referred to in s 76(2).

20. Section 76(2) provides:

“76 Development that does not need consent

…

(2) Exempt development

An environmental planning instrument may provide that development of a specified class or description that is of minimal environmental impact is exempt development.”

21. SEPP 2008 is an environmental planning instrument made pursuant to s 37 of the EPA Act. Its aim relevantly is “to provide streamlined assessment processes for development that complies with specified development standards by … (b) identifying, in the exempt development codes, types of development that are of minimal environmental impact that may be carried out without the need for development consent”. [10]

    10.    SEPP 2008, cl 1.3.

22. Clause 1.15 of SEPP 2008 relevantly provides:

“1.15 What development is exempt development?

(1) Development that is specified in an exempt development code that meets the standards specified for that development and that complies with the requirements of this Division for exempt development is exempt development for the purposes of this Policy.

(2) For the purposes of subclause (1), development that is specified includes any specified limitations as to the land on which that development may be carried out.

Note: Under section 76 of the Act, exempt development may be carried out without the need for development consent under Part 4 of the Act or for assessment under Part 5 of the Act.

The section states that exempt development:

(a) must be of minimal environmental impact …”

23. Clause 1.16 of SEPP 2008 is extensive. It deals with the general requirements for exempt development, including that it satisfy the Building Code of Australia. It is unnecessary to set it out verbatim as, as I explain later in these reasons, it is unclear how Australian Leisure sought to prove this aspect of its defence.

Primary judgment

24. The primary judge held that the 2006 Consent had lapsed.

25. As to the work undertaken prior to the grant of the 2006 Consent, the primary judge held that it was not work “relating to” that Consent within the meaning of that expression in s 95(4) of the EPA Act. While his Honour accepted that the words “relating to” are extremely wide, he held that, in a context where s 95 was found “within ‘Division 7 – Post-consent provisions’ of the EPA Act and specifically deals with ‘Lapsing of consent’ .. [i]t would be nonsensical that work undertaken before a consent is granted, even if that consent in some way ‘depended upon’ such works, could be relied upon to trigger, in the sense of render operational, a development consent which was not in existence at the time the work was undertaken.”[11] Accordingly, he concluded that the works completed prior to the grant of the 2006 Consent could not be relied upon to prevent the Consent from lapsing. [12]

    11. Primary judgment (at [26], [28]); his Honour also applied (at [25], [27]) Hunter Development Brokerage Pty Ltd v Cessnock City Council; Tovedale Pty Ltd v Shoalhaven City Council (2005) 63 NSWLR 124; [2005] NSWCA 169 (at [104]) per Tobias JA (Santow JA and Stein AJA agreeing).

    12. Ibid (at [29]).

26. The primary judge rejected Ms Fagin’s argument that the “use” of the beer garden was itself sufficient to prevent the 2006 Consent from lapsing. This was because it was clear from historical planning “that the area generally to the rear of the hotel and generally in accordance with what is presently licenced was used as a beer garden for a significant period of time – at least since December 1980”. [13]

    13. Ibid (at [32] – [34]).

27. The primary judge also rejected Ms Fagin’s submission concerning the installation of the planter boxes. There were a number of reasons for this conclusion. Relevantly, the first was that there was unchallenged evidence that the major construction work approved by the 2006 Consent had not been undertaken. His Honour appears to have inferred from that that the planter boxes were not installed pursuant to the 2006 Consent. [14] Secondly, his Honour found that, even if the planter boxes were intended to be built in accordance with the 2006 Consent, condition 3 of that Consent required a Construction Certificate to be obtained “prior to work commencing”. Other conditions of the 2006 Consent also provided a number of steps which were to be satisfied prior to commencement of work. There was no evidence that a Construction Certificate was ever obtained, or that those conditions were complied with. Accordingly, his Honour held that “even if the planter boxes were constructed as part of the 2006 Consent they would be ‘unlawful works’, and it is well established that such works cannot constitute works for the purpose of physical commencement of a development consent”. [15]

    14. Ibid (at [30](1), (2)).

    15. Ibid (at [30](4)); his Honour applied K & M Prodanovski v Wollongong City Council [2013] NSWCA 202; (2013) 195 LGERA 23 (Prodanovski) (at [12] – [20]); Green v Kogarah Municipal Council [2001] NSWCA 123; (2001) 115 LGERA 231; Detala Pty Limited v Byron Shire Council [2002] NSWCA 404; (2002) 133 LGERA 1.

28. Accordingly, the primary judge concluded the construction of planter boxes could not be relied upon to amount to work that “physically commenced” the 2006 Consent. [16]

    16.    Primary judgment (at [31]).

29. The primary judge also rejected an unconscionability argument Ms Fagin advanced in terms it is unnecessary to discuss. Ms Fagin does not seek to pursue that issue on appeal.

30. Finally, as to the first order sought by Ms Fagin, the primary judge accepted Australian Leisure’s submission that, even if he found the 2006 Consent had not lapsed, the Court would not in any case exercise any discretion pursuant to s 124 of the EPA Act to limit the use of the hotel. This was because his Honour was satisfied that the 2016 Consent imposed “sufficient constraints on noise emitted by the hotel such that [he] would not exercise [his] discretion to require Australian Leisure to comply with the noise constraints in condition 17 of the 2006 Consent.” [17]

    17.    Ibid (at [39]).

31. As to the second order sought by Ms Fagin, the primary judge noted that the video screen was removed shortly after the commencement of the proceedings, therefore rendering that part of the order sought otiose. Insofar as the audio speakers were concerned, his Honour noted Australian Leisure’s submission that such speakers were an “exempt development” pursuant to SEPP 2008, but did not consider it necessary to deal with this point as he was satisfied that the use of the speakers was sufficiently regulated by the 2016 Consent. His Honour concluded that “the removal of the video screen since the commencement of the proceedings and the fact that the noise component has been dealt with in effect means that, to an extent, Ms Fagin’s concerns have now been addressed.” [18]

    18.    Ibid (at [40]).

Amended notice of appeal

32. In her amended notice of appeal, Ms Fagin complains that the primary judge erred in his interpretation and application of s 95(4) of the EPA Act to the facts of the matter both in relation to the 2006 Works carried out prior to the grant of the 2006 Consent and in relation to the use of the beer garden since December 1980 (s 95(4) grounds of appeal). The amended notice of appeal did not clearly complain about the primary judge’s planter box findings, but they were the subject of Ms Fagin’s oral submissions and I have assumed she continues to complain about the primary judge’s findings in that respect. The s 95(4) grounds of appeal reflect grounds 5 – 9, 17 – 19 and 22 of the original notice of appeal.

33. Secondly, Ms Fagin complains that the primary judge erred in failing to find that the erection of the audio speakers in the beer garden required development approval. She contends that his Honour ought to have found they did require such approval and were not an exempt development within the meaning of SEPP 2008 (the audio speaker grounds of appeal). The audio speaker grounds of appeal reflect grounds 4, 31 and 32 in the original notice of appeal.

34. Finally, Ms Fagin complains that the primary judge erred in finding that the use of the audio speakers was regulated by the 2016 Consent and, too, contends that his Honour ought to have found that 2016 Consent did not authorise the playing of music in the beer garden (2016 Consent grounds of appeal). The 2016 Consent grounds of appeal reflect grounds 24, 27 and possibly 28 of the original notice of appeal.

Australian Leisure’s submissions

35. Australian Leisure accepts that the effect of any security for costs order will be to stifle Ms Fagin’s appeal.

36. However, it submitted there were “special circumstances” justifying such an order. In its written submissions filed prior to Ms Fagin amending her notice of appeal, Australian Leisure contended that it was apparent from the primary judgment and the original notice of appeal that Ms Fagin’s appeal was “hopeless, unreasonable [and] of an harassing nature”. [19]

    19. Xenos v FAL Healthy Beverages Pty Ltd [2017] NSWCA 240 (at [21]) (Xenos).

37. In its written submissions, Australian Leisure grouped Ms Fagin’s 33 appeal grounds into four categories and explained why each category had no prospects of success and was “doomed to fail”. Those submissions were maintained following the filing of the amended notice of appeal in respect of the substantially similar grounds of appeal as identified above.

38. First, as to the s 95(4) grounds of appeal relating to the primary judge’s findings concerning the 2006 Works, Australian Leisure submitted that for the reasons given by the primary judge, such works “cannot possibly ‘relate to’ the [2006] consent”. [20]

    20.    See primary judgment (at [23] – [29]).

39. Secondly, as to the s 95(4) grounds of appeal relating to the primary judge’s findings concerning works carried out in relation to the planter boxes after the grant of consent, Australian Leisure submitted that, even taking Ms Fagin’s case at its highest, there was no evidence of any Construction Certificate having been granted for any of the asserted works prior to them being carried out. Accordingly, such works were “unlawful” and therefore could not possibly operate to prevent the consent from lapsing. [21]

    21.    Australian Leisure relied upon Prodanovski in this respect.

40. Thirdly, as to the s 95(4) grounds of appeal relating to the use of the beer garden area, Australian Leisure submitted that, again taking Ms Fagin’s case at its highest, there was no Occupation Certificate authorising the use under the 2006 Consent, therefore any commencement of such use would have been unlawful and thus incapable of preventing the Consent from lapsing.

41. Insofar as the audio speakers were concerned, Australian Leisure’s principal submission was that there was no identified legal or factual basis for the requirement for the development consent for the mere erection of audio speakers. However, it conceded that their use may have to be regularised by development consent if there was to be ongoing entertainment transmitted through those speakers in the beer garden.

42. Finally, Australian Leisure submitted that discretionary considerations weighed heavily in favour of an order for security for costs for the following reasons. First, the prospects of success and/or merits of the appeal were very low. Secondly, Ms Fagin is impecunious. Thirdly, Ms Fagin was not “effectively in the position of a defendant”. Fourthly, the proceedings do not involve a matter of public importance. Fifthly, there has been no relevant delay by it. Sixthly, the costs of the appeal are not insignificant. Seventhly, the security sought was proportionate to the importance and complexity of the subject matter in dispute.

Ms Fagin’s submissions

43. Ms Fagin accepts that she is impecunious. However, she submits that the application for security for costs should be refused because the appeal involves a matter of public interest, she has a reasonably arguable case and a security for costs order would stifle her appeal.

44. As to the public interest factor, Ms Fagin relied upon documents she tendered without objection. Three of these were issues of a newsletter, “In the Meadow”, apparently published by the “Fairy Meadow Resident’s Association”. I infer from their contents that the first issue was published in late October 2017. Ms Fagin is described in the newsletters as the “secretary” of the Association. Each issue appears to have been written by her. Their almost sole topic is music emanating from the hotel, the status of her litigation and her prospects of success on appeal. I have placed little weight on these documents which, in my view, are entirely self-serving having regard to Ms Fagin’s interest in the outcome of the proceedings. Another two of Ms Fagin’s exhibits are, apparently, emails from Fairy Meadow residents whose homes are in proximity to the hotel complaining of noise from it, albeit that none appeared to complain of loud music. Although I would also place little weight on these emails, nevertheless, for the reasons I explain below I consider the appeal does involve a public interest element.

45. As to her prospects of success on appeal, Ms Fagin submitted that the primary judge’s conclusion that the 2006 Consent had lapsed was erroneous for a number of reasons.

46. First, Ms Fagin relied upon the proper construction of s 95(4) which, she observed, did not in terms exclude works not carried out in compliance with a development consent from being relied upon to prevent the consent from lapsing.

47. Secondly, Ms Fagin submitted that the primary judge had not relied upon any precedent to support his conclusion that the work relied upon to constitute physical commencement for the purposes of s 95(4) must relate to a development consent in existence at the time the work was undertaken so that work carried out before the development consent was granted was not relevant. She contended that, on its proper construction, s 95(4) was not subject to the limitation the primary judge discerned.

48. Thirdly, Ms Fagin relied upon the fact that part of the development application pursuant to which the 2006 Consent was issued involved raising the level of the beer garden and laying a concrete floor which, she contended, were necessary works which had to be carried out before other works in the 2006 Consent could proceed. These works were carried out in accordance with plans lodged with the development application, albeit that they were the 2006 Works undertaken before the 2006 Consent was granted. As I understand this submission, it is that, in the circumstances, the 2006 Works should be seen as “relating to” the 2006 Consent notwithstanding they preceded its grant.

49. Fourthly, Ms Fagin submitted that Australian Leisure should not be permitted to rely upon unlawful conduct to avoid conditions imposed by the Council for the protection of the environment. Thus, she argued Australian Leisure should not be allowed to rely on conduct, such as the use of the premises or the installation of the planter boxes, which benefited the hotel, in the sense that it enabled the beer garden to conform to what was sought to be achieved by the 2006 Consent, to support a finding that the 2006 Consent had lapsed. In this respect, Ms Fagin submitted that s 95(4) should be interpreted in the context of the EPA as a whole and to give effect to the public interest in upholding planning law. This would be permitting Australian Leisure to profit from its predecessor’s wrong.

50. Fifthly, Ms Fagin submitted that the primary judge had not dealt with her submission that the installation of the audio speakers in the beer garden required development approval. She argued that insofar as Australian Leisure had argued that the erection of audio speakers in the beer garden was “exempt development” pursuant to SEPP 2008 cll 1.15 and 1.16, the audio speakers could not be classified as having “minimal environmental impact”.

51. Insofar as the 2016 Consent was concerned, Ms Fagin submitted that the primary judge erred in finding that it related to the emanation of noise from the beer garden. Accordingly, she submitted that the primary judge’s statement that had he not accepted Australian Leisure’s submissions concerning the lapsing of the Consent, he would not, in any event, have exercised any discretion pursuant to s 124 of the EPA Act in Ms Fagin’s favour having regard to the noise controls it imposed, was vitiated by patent error.

52. Ms Fagin also submitted the application should be refused because of Australian Leisure’s delay. She complained that notwithstanding the fact she filed a notice of intention to appeal prior to filing the notice of appeal, the motion seeking security had not been filed until two months later, after she had filed and served her written submissions.

Consideration

53. Rule 51.50 of the UCPR gives this Court power in “special circumstances” to order that security be given for the costs of an appeal. UCPR r 51.50 does not affect the powers of the Court under UCPR r 42.21 to order security for the costs of proceedings. [22] However, Australian Leisure eschewed reliance upon any power of the Court other than that conferred by UCPR r 51.50.

    22. UCPR, r 51.50(3).

54. The discretion to order security for costs is unfettered and should be exercised having regard to all the circumstances of the case without any predisposition in favour of the award of security. [23]

    23. KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 (at 196) per Beazley J (as her Honour then was).

55. To demonstrate “special circumstances” the applicant for security for costs must establish circumstances which are “‘special,’ that is, ‘out of the ordinary’, ‘unusual’… although the specialness must be adjudged in the particular circumstances under consideration.” The question whether special circumstances exist must be judged on its own merits in each case. [24]

    24. Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136 (Transglobal) (at [20] – [21]) per curiam (Beazley, Santow and Ipp JJA), referring to R v Baker [2002] NSWCCA 184.

56. In Preston v Harbour Pacific Underwriting Management Pty Ltd,[25] Basten JA summarised the considerations engaged by the concept of “special circumstances” in relation to security for costs as explained in Transglobal and Porter v Gordian Runoff Ltd,[26] as follows:

“(1) no order for security should be made in the absence of ‘special circumstances’;

(2) consideration of what may constitute special circumstances should not be fettered by some general rule of practice;

(3) impecuniosity, without more, will usually be insufficient;

(4) an order may be appropriate if the appeal is shown to be hopeless, unreasonable or of an harassing nature;

(5) where a bona fide and reasonably arguable appeal would be stifled by an order for security, such an order should usually not be made, and

(6) the subject matter of the appeal, including an issue as to the liberty of the individual, or a public interest may provide a reason for not imposing a security order which would stifle the continuation of the appeal.”

25. [2007] NSWCA 247 (Preston) (at [18]) (Ipp JA and Hoeben J agreeing).

26. [2004] NSWCA 171 (Bryson JA, Sheller and Giles JJA agreeing).

57. In Xenos, after setting out these principles, Gleeson JA observed that “[w]hen weighing all the circumstances of the case in the exercise of the discretion to order security for costs, it is necessary to keep in mind that the weight to be given to any circumstance depends not only on its own intrinsic persuasiveness, but upon the impact of the other circumstances which have to be weighed”. [27] Otherwise, Xenos was a case in which Gleeson JA applied, among other matters, the fourth Preston factor in determining that security for costs should be ordered.

    27.    (At [23]).

58. Australian Leisure’s principal submission is that Ms Fagin’s appeal is “hopeless, unreasonable or of an harassing nature”.

59. In my view, it cannot be so characterised. It is unnecessary to analyse each of Ms Fagin’s grounds of appeal. This is not a summary dismissal application. Rather, the question is whether Ms Fagin’s appeal is so hopeless and/or unreasonable that it can be seen to be brought for the purposes, and/or to have the effect, of harassing Australian Leisure.

60. It is sufficient in this respect to deal with the audio speaker grounds of appeal. Ms Fagin’s complaint about the audio speakers was, as I have said, both a component of her complaint about the 2006 Consent and an independent basis of complaint. That is to say, she contended that if the 2006 Consent had lapsed so that the playing of live music using the audio speakers was not a contravention of condition 17, nevertheless the installation of the audio speakers required development approval. Australian Leisure’s response to that in addition to the lapsing point was, apparently, to accept that their installation constituted “development” as relevantly defined in the EPA Act, but to contend that they were an exempt development for the purposes of SEPP 2008.

61. In Port Stephens Council v SS & LM Johnston Pty Ltd; Port Stephens Council v Port Stephens Veterans and Citizens Aged Care Ltd,[28] Jagot J held that s 76(2) of the EPA Act:

“…enables an environmental planning instrument to provide that development of a specified class or description that is of minimal environmental impact is exempt development. Accordingly, the development for which provision is made as referred to in s 76(2) is the result of an exercise of power under that section (that is, the provision in the instrument). If there has been an exercise of power and the validity of that exercise of power is not challenged, there will be exempt development for the purposes of the Act. The reference to ‘minimal environmental impact’ in s 76(2) thus operates at the time that the power is exercised and limits the scope of the power available. The words have no work to do after the exercise of the power … Membership of the specified class or description of development is left to the environmental planning instrument. It is a matter for the instrument (or those who prepare and make it) to decide the terms of the class or description. Development outside that specified class or description is not exempt development.”

28. [2007] NSWLEC 30; (2007) 152 LGERA 193 (at [72]).

62. As her Honour explained:

“The purpose of the provisions is to empower councils to decide what development should be exempt from any requirement for development consent and assessment under Pt 5. The power is available for development that is of minimal environmental impact. The assessment of environmental impact is to be carried out by the council at the time it exercises the power to identify the specified class or description of development. Requiring members of the public who wish to carry out development within the specified class or description to themselves assess the environmental impacts of their development and (presumably) make an objectively correct determination that, in the particular case, the development will in fact be of minimal environmental impact, would defeat the purpose of the statutory scheme. It would make necessary in each and every case the very environmental assessment that the exempt development provisions of the EPA Act were intended to avoid.”[29] [Emphasis added.]

29. Ibid (at [73]).

63. As I have said, Australian Leisure appeared to concede in this Court that use of the audio speakers to transmit music would require development approval. It is not clear it put the case in that way before the primary judge. Rather, there, as I understand, it advanced the argument that the audio speakers did not require development approval because of their SEPP 2008 defence.

64. To establish that defence, in my view, it was necessary that Australian Leisure point to an exempt development code in which a relevant decision-maker had identified, either generically or specifically, the installation of outdoor audio speakers for the purposes of transmitting music in hotel premises in the vicinity of what appears to be a residential community as a type of development which was of minimal environmental impact such that it could be carried out without the need for development approval. It appears inherently improbable that such a code could be identified.

65. The primary judge did not refer to any such evidence having been led, nor did Australian Leisure in this Court.

66. The primary judge did not deal with Ms Fagin’s independent complaint about the audio speakers requiring development approval, nor address the SEPP 2008 issue. Rather, he purported to resolve that issue in the reasons he gave for how he would have resolved the matter on a discretionary basis. [30]

    30.    Primary judgment (at [40]).

67. It is difficult, with respect, to understand how his Honour could have dealt with it on this basis. First, Ms Fagin was entitled to have her independent claim for relief considered as such. Secondly, unless his Honour had determined whether the audio speakers required, but had not been given, development approval or were subject to an exempt development code within the meaning of SEPP 2008, cll 1.15 and 1.16, his Honour could not have considered all relevant considerations for the purposes of exercising his s 124 EPA Act discretion.

68. In my view, Ms Fagin has an arguable complaint that the primary judge erred in failing to deal with the audio speakers issue as an independent basis of relief and, too, in considering it as an alternative basis for refusing her relief in the exercise of his discretion. Accordingly, in my view, grounds 40 – 42 in the amended notice of appeal cannot be said to be hopeless, unreasonable or of an harassing nature.

69. Other circumstances impact upon this conclusion and weigh against making the order sought. First, the fact that an order for security for costs would stifle the proceedings is “a powerful factor” to be taken into consideration. [31] The respondent to such an application ordinarily “bears an evidentiary onus of establishing that any order for security would stultify [the] appeal, although the ultimate onus [of] establishing special circumstances rests on the [applicant for the order]”. [32] In this case, as I have said, Australian Leisure accepts that a security for costs order will stifle Ms Fagin’s appeal. Secondly, in my view, Ms Fagin’s appeal does involve a matter of public interest, at least insofar as the residents of Fairy Meadow in the vicinity of the hotel are concerned. They, too, are clearly affected by loud noise emanating from the beer garden, transmitted through the audio speakers.

    31. Preston (at [18](5) – (6)); see also Live Board Holdings Ltd v Cody Live Pty Ltd [2017] NSWCA 302 (at [92]) per curiam (Bathurst CJ, Leeming JA, Barrett AJA).

    32.    Xenos (at [28]).

63. Thus, in the final analysis, the only factor Australian Leisure has established is that Ms Fagin is impecunious. That usually does not constitute a special circumstance, [33] and in the circumstances of this case does not tip the balance in Australian Leisure’s favour.

    33.    Preston (at [18](3)).

64. Insofar as Ms Fagin complains of Australian Leisure’s delay in making the application for security for costs, I observe that delay is not an automatic bar to the making of the order for security for costs. Rather, the relevant question when considering a complaint of delay is the length of the delay and the reasons for it. Consideration must be given to what has taken place in the interim. [34] In my view, Australian Leisure did not delay in bringing the application. It was filed before the first return date. Although Ms Fagin had filed her written submissions by then, it is at least arguable that a respondent may be wise to await the filing of submissions to ensure what may on the face of the notice of appeal appear to be a hopeless cause, is not revealed on the filing of submissions to be not properly so characterised.

    34. Li v State of New South Wales [2013] NSWCA 165 (at [37]) per Ward JA (Macfarlan and Gleeson JJA agreeing).

65. Finally, I would also observe, that even if I had been of the view that an order for security for costs was appropriate, I would not have ordered it in the amount sought which appeared to me to be excessive for a one day hearing. Rather, I would have discounted that figure, allowing for “the unquenchable fire of human optimism and the likelihood that the figure of … costs put forward would not emerge unscathed after [assessment]”. [35]

    35. See Procon (Great Britain) Ltd v Provincial Building Co Ltd [1984] 1 WLR 557 (at 571) per Griffiths LJ.

66. I note that the appeal is listed for directions on Wednesday, 6 December 2017. In the course of the hearing it was apparent Ms Fagin also complained about the manner in which the primary judge dealt with the planter boxes issue as well as his exercise of discretion. I suggest that prior to the directions hearing, Ms Fagin give consideration to whether she wishes to amend the amended notice of appeal to include either of those issues. If she does, she should prepare a further amended notice of appeal, provide a copy to Australian Leisure and seek leave at the directions hearing to file that document and rely upon it at the appeal.

Orders

74. I dismiss the notice of motion with costs.

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Endnotes

Amendments

04 December 2017 - Amendment to catchwords on coversheet

Decision last updated: 04 December 2017