Fobafe Pty Limited v Marrickville City Council

[1999] NSWLEC 125

Land and Environment Court

of New South Wales

CITATION:

Fobafe Pty Limited v Marrickville City Council [1999] NSWLEC 125

PARTIES

APPLICANT
Fobafe Pty Limited

RESPONDENT
Marrickville City Council

NUMBER:

10771 of 1998

CORAM:

Cowdroy A J

KEY ISSUES:

Costs; Development :- Development:- development application court granting consent for limited time - subsequent application granted for further limited time - third application upon expiry of consent - refusal by Council - appeal upheld - differing objections
Costs:- in class 1 - exceptional circumstances -- no exceptional circumstances justifying exercise of court’s discretion to award costs.

LEGISLATION CITED:

Land & Environment Court Practice Direction 1993, cl 10
Land & Environment Court Act 1979, s 69

DATES OF HEARING:

06/01/1999

DATE OF JUDGMENT DELIVERY:

06/08/1999

LEGAL REPRESENTATIVES:

APPLICANT
Mr R J Morahan

SOLICITORS
M H Peoples & Co.

RESPONDENT
Mr G Christmas

SOLICITORS
Phillips Fox

JUDGMENT:

Background

1. By notice of motion filed on 1 April 1999, Forbafe Pty Limited (“the applicant”) seeks an order that the respondent (“the council”) pay its costs of the class 1 proceedings. The applicant asserts there are “exceptional circumstances” which would entitle it to such order despite the fact it is a planning appeal. Clause 10 of the Land & Environment Court Practice Direction 1993 (NSW) provides “ the practice of the Court is that no order for costs is made in planning and building appeals unless the circumstances are exceptional ”. Despite the direction this Court retains a wide discretion in respect of cost awards pursuant to s 69(2) of the Land & Environment Court Act 1979.

2. In April 1994 an application was made on behalf of the applicant for 24 hour trading at the Oxford Hotel situated at 323 King St, Newtown. The council refused the application and an appeal was instituted in this Court. Such appeal was upheld subject to certain conditions imposed by Assessor Andrews. One condition provided that there should be a six month trial from the date of the court orders, namely from 15 December 1994 and thereafter a fresh development application should be lodged by the applicant. In accordance with such conditions, the applicant lodged a further development application with the council on 5 June 1995 and it was approved subject to several conditions on 7 August 1995.

3. One condition restricted the operation of the extended hours for a period of one year but otherwise the trading continued in accordance with the same conditions previously formulated by Assessor Andrews.

4. The applicant asserts that it did not receive any notice of development consent restricting the hours of operation to a period of one year. In any event it continued to trade from the date of the consent without interference from the council until 16 April 1998 when council drew to the applicant’s attention the fact that its entitlement to trade extended hours had ceased on 7 August 1996.

5. On 23 June 1998 the applicant lodged a fresh development application seeking similar trading hours to the council’s previous consent. The council refused the application.

6. On 25 November 1998 an appeal was instituted in this Court against such refusal and a hearing took place on the 4 and 5 March 1999 before Commissioner Brown. He upheld the appeal in a judgment delivered on 24 March 1999.

Applicant’s contention

7. The applicant submits it has been put to considerable expense by the council whose conduct has been capricious and unfair. It submits that the council should have readily adopted the decision of Assessor Andrews delivered on 15 December 1994 and that the present application was substantially the same as the previous one. Secondly it submits that the council’s decision to oppose the recent application was devoid of merit because it accepted a police report which under scrutiny before Commissioner Brown was found to be baseless. In these circumstances the applicant relies upon principles which have entitled an applicant to costs where conduct of a council has been found to be devoid of merit. Numerous authorities have been cited for example Berk v Woollahra Municipal Council [No.2] (1992) 76 LGRA 138; Raiti v Leichhardt Municipal Council (1991) 72 LGRA 333.

Relevant Considerations

8. It is essential to have regard to the nature of the application made in 1994 and again in 1998 to determine whether the issues and circumstances were identical. On the first application there was apparently no objection from the police department and only one residential objector. Due to the sensitive nature of the application Assessor Andrews determined that a six month trial should be undertaken. When the second development application was lodged in June 1995 the council granted permission but only for a twelve month period. The circumstances of the third application however, were somewhat different. The council had before it an objection from a member of the public who had experienced the effect of the extended trading hours since their introduction. Further, unlike the preceding applications the police submitted an adverse report of the environmental effects of the hotel’s operations.

9. The council’s town planner prepared a report for council which dealt with the history of the prior applications and of the proposal. Based upon the police report and community objections, he considered that the extended trading hours would adversely affect the amenity of the surrounding neighbourhood and would not be in the public interest.

10. On 1 September 1998, the Development and Environmental Services Committee (“the committee”) received the above report. Instead of dismissing the application it resolved to defer the matter for the purpose of seeking further information from the Newtown Police concerning its adverse report.

11. On 6 October 1998 the applicant’s application again came before the committee. By this date the town planner had prepared a report which included detailed objections from the police and the text of a long letter from Mr Peoples, the applicant’s solicitor. Mr Peoples addressed the meeting and expressed his opinion that the development application should not have been necessary since the use remained unaltered from the previous consent. Council again resolved to refuse the application upon the ground of adverse environmental impact on the amenity of the surrounding area.

12. There have been numerous cases which have established the principles concerning the award of costs in class 1 proceedings. In Outdoor Australia Pty Limited v Auburn Council (1996) 89 LGERA 365 at 366-369 the Chief Judge considered numerous authorities and the history of the rule which is embodied in the practice direction. More recently there have been decisions which confirm that unless the facts establish that the council was acting irrationally, frivolously or capriciously, the practice direction is to apply. (See Berk (supra).)

13. The latest development application before Commissioner Brown had been considered in detail by the council. It was entitled to rely upon the police report and of the objection of a resident. Council appears to have carefully assessed such application before it came to its decision. The council was entitled to consider but not necessarily to accept the untested version of events as chronicled in the letter of Mr Peoples and to treat Mr Peoples’ oral submissions in the same way. It was not until the matters were fully investigated before the court that a finding was made of the unreliability of the police evidence.

14. This was not a case in which it could be said that the council’s objection was “obviously untenable” (see Bignold J in Cadonia Pty Limited v Leichhardt Council (unreported no. 10480 of 1993, 5 August 1994). Nor could it be said that each application was identical, as was found by the court in Turier v Nipote Pty Limited (trading as Rice & Daubney, Ian Alexander McCall) and Gosford City Council (1982) 48 LGRA 20. The development applications were the same but the objections received by council were different. Based upon the factual and historical differences as outlined above, it could not be said that all of the circumstances were identical to those which were before council in 1994.

15. Even if the council had acted unreasonably, it has been held that such circumstances may not be “exceptional” within the meaning of the rule (see FC Legge & Anor v Wingecarribee Shire Council (unreported no. 20157 of 1996, judgment 21 March 1997, Lloyd J.) On the facts of the present application, I do not regard the conduct of the council as being unreasonable. There was nothing to indicate the refusal of the application resulted from any mala fides, or any lack of proper consideration. Council relied upon the police report which was found to be unreliable only after being examined in this Court. This however, does not warrant an adverse finding concerning the council’s conduct.

Council’s Notice of Motion

14. The council has filed a notice of motion seeking costs of this application in the event that the applicant is unsuccessful. By letter dated 13 May 1999 the council stated that it would seek an order for costs on an indemnity basis if the applicant’s motion was unsuccessful.

15. The practice direction should prevail. The motion of the applicant was not “exceptional” and the whole proceedings remain class 1 including the council’s motion. Accordingly, both motions should be dismissed.

Orders

16. The court orders that:-

1. The Notice of Motion of the applicant be dismissed.

2. The Notice of Motion of the Respondent be dismissed.

3. There be no order as to costs in respect of either motion.