Gall v Tamworth City Council

[2003] NSWLEC 50

>

Land and Environment Court

of New South Wales

CITATION:	Gall v Tamworth City Council [2003] NSWLEC 50
PARTIES:	APPLICANT: Gall RESPONDENT: Tamworth City Council
FILE NUMBER(S):	10449 of 2001
CORAM:	Bignold J
KEY ISSUES:	Costs :- in class 1 proceedings-summarily dismissed-whether exceptional circumstances demonstrated.
LEGISLATION CITED:
CASES CITED:	Maurici v Chief Commissioner of State Revenue (2001) 114 LGERA 376; McDonald v Mosman Municipal Council (No 2), (2000) 107 LGERA 211; Prince v North Sydney Council (2001) 115 LGERA 65
DATES OF HEARING:	25/02/2003
EX TEMPORE JUDGMENT DATE :	02/25/2003
LEGAL REPRESENTATIVES:	APPLICANT: Mr M Fraser, Barrister SOLICITORS Bowen and Gerathy RESPONDENT: Mr W O'Rourke, Solicitor SOLICITORS Deacons

JUDGMENT:

IN THE LAND AND

Matter No. 10449 of 2001

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

25 February 2002

M GALL

Applicant

v

TAMWORTH CITY COUNCIL

Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. By its Motion filed on 30 October 2001, the Council seeks an order that the Applicant pay the Council’s costs in these proceedings, which involved an appeal against the Council’s decision refusing development consent to an application to establish, on land in the City of Tamworth, a development comprising a licensed brothel, strip club, escort and adult sex shop. The Council’s decision refusing development consent was taken at its meeting of 22 May 2001. The reasons for refusal included the following:

1. The application is inconsistent with the aims objectives of Amendment 14 to Tamworth Local Environmental Plan, the gazettal of which is imminent.

2. The appeal was filed in Court on behalf of the Applicant on 30 May 2001, one week after the Council’s decision. The appeal document appears to have been prepared by a town planning consultant whom the Applicant had retained. The appeal was listed for hearing at Tamworth on 15 and 16 October 2001, that fixture having been allocated at the Registrar’s callover on 18 June 2001.

3. Subsequent to the filing of the appeal, the Council filed a Statement of Issues which essentially replicated the reasons for the Council’s refusal. However, subsequently, the anticipated Draft Amendment 14 to the Local Environmental Plan was gazetted and took effect from the date of gazettal, which was a date in July 2001. This led the Council’s Solicitors to serve upon the Town Planner Consultant, who was acting as agent for the Applicant, an Amended Statement of Issues which substituted, for the paragraphs relying upon the content of the Draft Amendment 14 to Local Environmental Plan reliance upon those provisions of the enacted plan. One of the provisions of the Amendment 14 relied upon by the Council was the stipulation that the aspects of the proposed development, being the brothel and restricted premises, be not established within a distance of 150 m, measured by road, from the nearest residences and it appears to be common ground in the proceedings, as they were heard by the Commissioner, that there were two or three residences within that 150 m distance from the appeal site.

4. The Council’s claim for costs essentially comes down to this—at the hearing, the Applicant appeared as a litigant in person. She had never been legally represented but, as I have noted earlier, for much of the time (from the time the development application was determined by the Council until a couple of weeks before the fixed hearing dates) she had retained the services of a Consultant Town Planner and it was with that person that the Council’s Solicitors had corresponded in necessary communications in preparation for the hearing. I will presently relate the circumstances in which the Applicant came to Court without the benefit of town planning assistance, but in essence the Council’s claim for costs is that by coming to Court, the Applicant was not truly ready and prepared to present her case and it is that fact which the Court is invited to find which is the reason and the sole reason advanced by the Council in support of an order for costs against her.

5. The hearing today has involved considerable attention being given (and rightly so if I may say so) to what happened at the hearing. This is revealed in a transcript which has been annexed to an affidavit of Susan James Thomas. I think one can fairly summarise what happened at the hearing in Tamworth before the Commissioner in the following manner.

6. Firstly, the Applicant appeared in person and the Council was legally represented. At the commencement of the hearing, the Commissioner noted that the Applicant was not legally represented whereupon she sought, in somewhat tentative fashion, an adjournment to enable her to have more time to prepare her case. This application appears to have been rejected.

7. The next point to note at the hearing is that the Commissioner spent some time addressing the Applicant on the fact that she did not have any expert planning evidence to present to the Court, a fact that she readily conceded, and was opposed by evidence filed by the Council, which included an independent town planning consultant’s report by Mr Gardiner Brown. Those facts seemed to weigh heavily with the Commissioner and for some pages in the transcript there seems to be some sustained discussion of the inherent difficulties that the Applicant was likely to encounter by this apparent inequality in the evidentiary case.

8. However, and thirdly, supervening that rather inconclusive discussion was the announcement by the Solicitor for the Council that the application was deficient inasmuch as there was no objection under State Environmental Planning Policy No 1 such as would be necessary to overcome the legal consequences of the enactment of the Amendment 14 to the Local Environmental Plan which occurred, as I say, in July, subsequent to the Council’s decision determining the application in May and subsequent to the lodging of the appeal, which also happened in May.

9. It was the absence of the existence of an objection under State Environmental Planning Policy No 1 which then seemed to have occupied considerable amount of time at the hearing principally in discussion, which proved to be somewhat inconclusive. However, what is to be noted is that at an early stage in the piece, the Council’s Solicitor announced that the Council would oppose any leave being given to the filing of a SEPP 1 objection in the proceedings.

10. Unfortunately, this matter also appears to have been dealt with somewhat inconclusively thereafter because, as I read the transcript, no application was actually made by the Applicant to lodge there and then a SEPP 1 objection, nor did the Commissioner invite the Applicant to lodge one. And I think a fair reading of the transcript is that the Commissioner accepted, as it were, as presenting a fundamental impediment, the absence of the SEPP 1 objection and the Council’s objection to such an objection being entertained by the Court.

11. The upshot of those features of the hearing led to the following denouement as recorded in the transcript. Somewhat surprisingly, the Commissioner invited the Council to tender the statement of planning evidence by the Consultant Planner Mr Brown, retained by the Council, and it was received into evidence. However, this appears to be no more than a formal manoeuvre or encounter because, immediately upon reception of the report into evidence as Exhibit 3, the Commissioner announced that he would now propound the formal orders of the Court and he thereupon announced that the appeal be dismissed and development consent be refused.

12. The Council’s case, as I say for costs, is that what occurred or did not occur at the hearing before the Commissioner on 16 October 2001 demonstrates a lack of readiness on the part of the Applicant to present her case.

13. A contrary view of the facts is advanced on behalf of the Applicant. Rather, it is said on her behalf, that she came to Court, she candidly conceded that she was belatedly left without the benefit of town planning advice but had busied herself in the last few days to prepare her case. She tentatively asked for an adjournment and appeared to accept what was merely an intimation of a disposition not to grant the adjournment by the Commissioner. She then engaged in some sustained debate or discussion with the Commissioner concerning the fact that she did not have qualified town planning evidence to present in the case and was going to be met by a case brought by the Council which was founded upon expert opinion of Mr Gardiner Brown. But, as I say, that discussion appears to have been ultimately inconclusive and went nowhere.

14. Ultimately, she was met with the absence of SEPP 1 objection in relation to the recently made Amendment 14 to the LEP.

15. In respect to this last mentioned matter, again she did not make any formal application to present a SEPP 1 objection. This is unsurprising, in view of what the transcript records, as to (i) the firmest objection raised by the Council for the reception of a SEPP 1 objection and (ii) the Commissioner’s apparent readiness to accept that the Council’s objection created a fundamental legal impediment to him receiving the objection.

16. In respect of these matters Counsel appearing today for the Applicant has emphasised the fact that the litigant was a litigant in person confronted by a vastly experienced Solicitor representing the Council and an experienced Commissioner and that it surely comes as no surprise that she ultimately passively submitted to the prevailing views being asserted by the Council’s Solicitor and tacitly and ultimately expressly accepted by the Commissioner.

17. In these circumstances Counsel for the Applicant has put this complexion on what happened before the Commissioner, namely an Applicant in person, desirous and prepared to present her case, being ultimately persuaded by opposition from the Council and an acceptance by the Court that without the objection under SEPP 1 the proceedings must fail. On these facts, it is submitted that no exceptional circumstances have been demonstrated and the case is quite different from a case of an Applicant coming to Court and simply capitulating or discontinuing either at the hearing or soon prior thereto. Rather, here the litigant in person was, as it were, ultimately outflanked by legal submissions and the decision of the Court which indicated, without necessarily being expressed in any formal way, that the Commissioner was unable to deal with the case in the absence of the requisite SEPP 1 objection.

18. The parties have advanced their competing submissions upon the common ground that in a planning appeal such as the present case, the practice of the Court not to award costs is established either by practice or by dint of a practice direction long in force, with the only exception being that in exceptional or special circumstances costs will be ordered. I do not think it is necessary to go behind the common assumption made in the competing submissions notwithstanding the doubts as to the effective status of the Court’s Practice Direction on costs in planning appeals as a result of the decision last year of the Court of Appeal in Maurici v Chief Commissioner of State Revenue (2001) 114 LGERA 376 because, as has been held in decisions of the Court since the decision in Maurici, the Court has continued to adjudicate on costs disputes in planning appeals on the basis that costs are only awarded in exceptional circumstances. A good example of that approach is found in the decision of Lloyd J in Princev North Sydney Council (2001) 115 LGERA 65. As I say, I am content to proceed on the common assumption made by the parties which, in my respectful opinion, represents the continuing practice of the Court.

19. I mentioned earlier that I would return to the circumstances of the disengagement of the planning consultant who had earlier been engaged by the Applicant to support her development application when it was before the Council and to lodge the appeal with the Court and to appear in that case as a witness for her as well as being her agent. Her affidavit of 15 February 2002 gives comprehensive details to the circumstances of her engaging the consultant town planner and of the circumstances pertaining to the termination of that engagement.

20. Regrettably for the Applicant, that occurred literally within a week or two before the fixed hearing dates on 15 and 16 October 2001 and they occurred in circumstances which are outlined in the affidavit, which I need not go into, save to mention the fact that the Applicant has stated in her affidavit that she was informed by the town planning consultant that he had not prepared any statement of evidence for which he had been engaged to do, because he had missed the deadline (which I take to be a reference to the Court’s Rules and Practice Direction for the filing and service of expert evidence in planning appeals). The consequence of the belated termination of the engagement of this agency left the Applicant without any expert assistance in terms of preparing a case for the hearing and her affidavit goes on to detail how she sought to make good that lack, including the preparation with the assistance of a friend of a large folder of documentary materials which she proposed to use at the hearing.

21. Regrettably, before the Commissioner that material was not sought to be tendered, nor was the Applicant invited to tender any material notwithstanding the fact that, for reasons that I do not quite understand, the Commissioner received into evidence the Council consultant planner’s report but did not appear to use it for any purpose.

22. Having considered the competing submissions, I am of the opinion that the version of the facts and the assessment of the facts of the present case as presented on behalf of the Applicant today is to be preferred to the Council’s competing view of those facts. I am not satisfied that exceptional circumstances have been demonstrated by the Council and in particular, I am not satisfied that the Council has demonstrated that the Applicant came to Court before the Commissioner on 16 October 2001 in a condition which indicated a lack of preparedness or capacity to proceed with the appeal. In that respect, I do not accept the Council’s submission that the Applicant ought to have had a SEPP 1 objection to hand. As I have earlier indicated, when the Council determined this development application in May of 2001, Amendment 14 was only in draft form. Council’s reasons for refusal relied upon it and its imminent gazettal. But it was not gazetted, as I have indicated, until July 2001, a date that was after the filing of the appeal and after the appeal had been set down for hearing. It is true that the amendment was made some three months before the hearing date and that there would have been sufficient time, given the fact that the Council’s Solicitors had filed an amended Statement of Issues (of their own Motion and not pursuant to any leave given by the Court) which relied upon the gazetted Amendment 14. In those circumstances, the gazettal of Amendment 14 was, in truth, an event that occurred after the determination of the development application, after the lodging of the appeal and after the case had been set down for hearing. That does not mean that the Council could not rely upon it. Nor does it mean that the Council did not act responsibly in notifying, through its Solicitors, the Applicant’s town planning agent of the fact that it had been made and the Council would be relying upon it. But it does mean that the complaint that the Applicant did not come to Court with a SEPP 1 objection in hand is, to my mind, a proposition that simply fails to take account of the belated arrival of Amendment 14 in the context of this litigation.

23. Counsel for the Applicant pointed out, in the course of his detailed address today, that it is interesting that the Council’s planning consultant, Mr Gardiner Brown, dealt at some length not only with the operation of Amendment 14 in the present case, but also with the question of whether its requirements should be relaxed in the present case, that is, the requirements for physical separation from dwellings, and his report is replete with consideration of these matters. It was on the basis of that evidence (which clearly was not brought to the attention of the Commissioner during the debate on the question) that Counsel for the Applicant was somewhat critical of what was put to the Commissioner by the Council’s Solicitor in objecting to leave being given to a SEPP 1 objection being received in Court at the hearing. When I say being critical, I, of course, am not suggesting, nor did I understand the submission to suggest, that there was anything untoward in the Council’s Solicitor raising the objection, but rather I take it that the submission advanced today was that as a matter of merit, the fact that the Council’s town planning consultant had extensively in his written report of evidence considered the question of the requirements of Amendment 14, their application to the present case and reasons why they should not be relaxed in the present case, indicated that it would be unlikely that the Council could not have dealt with the raising at the hearing of an objection if taken by the Applicant under SEPP 1.

24. I think, as Counsel for the Applicant has aptly pointed out, that in a case involving litigants in person (and there are many that come before the Court) there is an obligation to assist a litigant in person in a reasonable manner. In the present case, I am bound to say that I think the Commissioner ought to have allowed an objection under SEPP 1 to be received. This would reflect fairly standard practice in this Court from its inception when cases involving development standards have come to the Court on planning appeals oftentimes without the benefit of a SEPP 1 objection, which defect is regarded as curable and is regularly cured by the reception at the hearing of the objection.

25. As I have attempted to understand the present case and what happened at the hearing, I think especially for the Applicant as a litigant in person, that she ought to have been given that opportunity and such indulgence would have been reasonable in the circumstances of the case and also would have reflected the established practice of the Court. Again, in this respect, I emphasise the fact that the necessity for a SEPP 1 objection arose well after the determination of this development application and even well after the appeal was lodged and the appeal was set down for hearing. All this reinforces, in my judgment, the reasonableness in the present case of allowing an objection to be lodged at the hearing.

26. In fairness to the Commissioner, as I read the transcript, I cannot help but think that he was telescoping into one consideration the ultimate fate of an objection raised by a lay person and supported only by lay evidence, in a case where the Council’s opposing case was based upon detailed planning evidence. And I think it was the telescoping into the one process of that consideration which most probably explains why ultimately the Commissioner did not afford the opportunity to the Applicant of filing in Court her own objection under SEPP 1 which, allied to her own case, unsupported by expert planning evidence which she had prepared and was ready to present in Court, would nonetheless have enabled her to have presented a case on the merits.

27. All this is now by the by because the appeal stands dismissed. But I consider that it has been necessary to revisit the hearing in this matter in order to adjudicate upon the competing claims of the Council and the Applicant as to whether in the circumstances of this case, the fact that the appeal before the Commissioner failed at the threshold, as it were, demonstrated, as the Council was asserting, that the Applicant’s case was ill-prepared and on that score constituted exceptional circumstances.

28. For all the reasons given, I have not been persuaded by the Council’s submissions and I am satisfied that no exceptional circumstances have been shown to exist in this case such as would warrant an order for costs in favour of the Council and, accordingly, Council’s Motion is dismissed.

COUNSEL ADDRESSED ON COSTS

29. Consequent upon my decision dismissing the Council’s Motion seeking costs in the class 1 proceedings, Counsel for the Applicant has asked for an order for costs on today’s Motion upon the basis that the Council’s Motion was unsuccessful and the consequence of the Council bringing a Motion for costs, which has been ultimately dismissed, should be that the Applicant, in successfully resisting that costs Motion, should have the costs of today. This application is supported by a practice in this Court as is evidenced in the judgment of Lloyd J in McDonald v Mosman Municipal Council (No 2), (2000) 107 LGERA 211, and has been consistently followed by the Court in cases where it has adjudicated upon a costs application in a planning appeal or similar proceedings.

30. Mr O’Rourke, for the Council, opposed the application for costs on the grounds that, as he understood the delivery of my extempore reasons for decision refusing his application for costs, a fundamental reason was the supervening gazettal of Amendment 14 to the LEP occurring after the Council’s determination and after the appeal was lodged and after the appeal had been set down for hearing and that matter was something which occurred entirely outside the Council’s hands, the publication in the Gazette of environmental planning instruments made by the Minister being a matter for his department and not a matter for the Council.

31. Mr Fraser, however, has rejoined that even if this might be the case, it is the Council who has brought its Motion for costs in the present case upon all the known facts and it is the Council which lost its Motion. I find that argument to be irresistible and, accordingly, I order that the Council pay the Applicant’s costs of the hearing on today’s Motion.