Greater Taree City Council v Yarnold

[1999] NSWLEC 110

Land and Environment Court

of New South Wales

CITATION:

Greater Taree City Council v Yarnold & Anor [1999] NSWLEC 110

PARTIES

Applicant:
Greater Taree City Council

Respondents:
Yarnold & Anor

NUMBER:

40069 of 1997

CORAM:

Talbot J

KEY ISSUES:

:-

LEGISLATION CITED:

DATES OF HEARING:

04/09/1999

EX TEMPORE JUDGMENT DATE:

04/09/1999

LEGAL REPRESENTATIVES:

Applicant:
Mr D Mallon (Barrister)

Solicitors:
Stacks - The Law Firm

Respondents:
Mr P Smith (Solicitor)

Solicitors:
Walker Smith

JUDGMENT:

IN THE LAND AND Matter No. 40069 of 1997
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 9 April 1999

Greater Taree City Council
Applicant

v
Milton Alexander Yarnold and Lynette Gai Yarnold

Respondents

EX TEMPORE REASONS FOR JUDGMENT


1. HIS HONOUR: This is a case which in one sense, unfortunately, is typical of many matters that come to this Court, but in another sense fortunately, discloses that once proceedings are commenced parties on either side use their best endeavours to resolve the dispute in a way other than by resort to a disputed hearing.

2. In this case there has been a protracted period between the time when the proceedings were first foreshadowed on 18 December 1996 and subsequently commenced by the filing of a class 4 application on 8 April 1997, and not determined until orders were made by consent on 23 October 1998. During that period it is quite clear that the first and second respondent have attempted in a number of ways to overcome what they saw as a disadvantage in being required to remove an existing cottage on a property which they purchased by settlement which took place on 3 June 1996.

3. At that time the previous owners already had, and hence the land had, the benefit of a development consent granted on 27 April 1994 and a building approval issued by the applicant council on 29 November 1994 which together facilitated the required approvals to the erection of a new dwelling house on the subject land. The development consent contained no condition requiring the removal of the existing cottage but the building approval specifically required that the existing dwelling on the land be demolished or removed.

4. The Court has the benefit of a statement made by the first respondent for the purposes of other proceedings, but nevertheless relevant to these proceedings, whereby it is apparent that the respondents purchased the property with the aim of acting on the development consent and the building approval but, for some reason unexplained, did not sufficiently familiarise themselves with the terms of those consents to the extent that they were aware of condition 16 of the building application which required the demolition or removal of the existing cottage. Be that as it may, there can be no doubt that they occupied the new dwelling in July 1996 before the removal or demolition of the existing dwelling and they were subsequently advised, as far as I can determine for the first time, by letter dated 5 August, and possibly a subsequent letter on 19 September, but certainly by 10 October 1996, that they were required to remove the existing dwelling consequent upon them having occupied the new dwelling in July, so that by 10 October 1996 the respondents could have been in no doubt that they had a legal obligation to remove the existing dwelling or to have it demolished. To their credit in the period shortly following the latest of the letters, which is the only letter before the Court today, that is the letter dated 10 October 1996, they sought some advice and commenced what might be described as an informal approach to the council to commence a dialogue to have the retention of the existing dwelling retained at that stage for the purposes of a shed. It appears they obtained some advice in relation to the need to lodge a formal objection pursuant to State Environmental Planning Policy 1 but ultimately they lodged a formal development application on 13 November 1996 for an unattached duplex.

5. Almost coincidentally with the council's resolution to institute the current proceedings on 18 December 1996, the solicitor for the respondents Mr Smith, who appears today, wrote to the council on 19 December foreshadowing that an objection pursuant to SEPP 1 would be lodged. Apparently the respondents were advised by letter dated 20 December that the council had resolved to institute legal proceedings to seek removal of the original dwelling from the land. This decision was queried in further correspondence passing between the respondents' solicitors and the council.

6. On 23 January 1997 the development application for an unattached duplex was refused. That decision appears to have been made notwithstanding a foreshadowed SEPP 1 objection. The intention to lodge the SEPP 1 objection was again the subject of correspondence on 24 January 1997 when the decision of 23 January was communicated to the effect that the SEPP 1 objection could not be supported. Then again on 10 February 1997 a further development application was foreshadowed “hopefully” within the next week after that date and correspondence followed whereby the solicitors for the council became involved, confirming they had the necessary instructions to commence proceedings and indicating that, if nothing was done within 14 days from 28 February, they would have no alternative but to proceed. Again the respondents notified, this time the solicitors for the council, that a DA would be lodged within a 14 day period. It seems that after 4 March 1997, nothing much happened in terms of communication between the solicitors. Mr Smith acknowledges on behalf of his clients that perhaps they would have been better served if there had been a further communication or contact by them or their representatives with the council during the period of time before the class 4 proceedings were actually commenced on 8 April. On the other hand the Court might perceive that in the interests of fairness and reasonableness the council might well have been in touch further in that period before actually commencing the proceedings. The delay during that period appears to be crucial in the respondents' case in resisting an application for an order for costs against them.

7. I think it is relevant to note that solicitors for the council on 28 February wrote what, on its face, appears to be a reasonable letter which recognised the prospect of a development application being lodged within a period shortly after 17 February, but that had not occurred and indeed allowed another 14 days. The solicitors for the respondents more or less made an application, at least by inference, to extend the allowed period of 14 days by a further period of 14 days after 4 March. Beyond that date it is the respondents who did nothing to encourage the council to hold its hand. It was not until the class 4 application had been served that the further development application was lodged.

8. I do not intend to go through each of the steps in the proceedings but rather I propose to summarise them by saying that a series of adjournments were granted, I think in every case by consent, in order to accommodate the lodgment, consideration and determination of development applications and, I presume, an application seeking an approval under the Local Government Act because in the events that happened two appeals were lodged to the Court, one in class 1 and one in class 2. I infer that the adjournments were applied for and consented to bearing in mind the provisions of s 124 subs (3), and whatever the appropriate and parallel provision in the Local Government Act is, whereby the Court may, upon application adjourn proceedings to enable an application to be made to obtain consent. That situation continued on and off until 23 October 1998, which is 18 months after the proceedings were commenced, when the consent orders were made following, it would seem, the exhaustion of the respondents' efforts to obtain a consent which would enable them to retain the building on the land. Ultimately, following the consent orders made on 23 October 1998, the building was removed, so I am told, on 19 March 1999.

9. It is not suggested that the council acted with any mean intent or malicious motive against the respondents but rather, on balance, that the respondent should be regarded as acting reasonably by taking all of the opportunities that were available to them to resolve a problem which, to a very large extent, was of their own making. When I say it was of their own making there was nothing that the council did that could have lulled the respondents into a false sense of security or understanding about their entitlement to maintain the second dwelling on their land. The council was not obliged to inform purchasers of land that there were any obligations arising out of the consents and approvals upon which those purchasers actively relied in order to carry out development and building, indeed the evidence is to the contrary.

10. The respondents' case is based, as I said earlier, on the fact that their actions were reasonable and that the actions of the council in precipitating the proceedings in April 1997 were correspondingly unreasonable. The council is a statutory body, it has a responsibility to carry out functions and duties as well as powers under the Environmental Planning and Assessment Act. One of those responsibilities is to see that it upholds the law which it is entrusted to supervise and, in particular, to see that the conditions of approvals given by it are observed and that in that way the law is maintained.

11. Rather than the actions of the council being regarded as unreasonable, after the very careful analysis by Mr Mallon and Mr Smith of the history of the matters that led up to the commencement of these proceedings and subsequently, the Court has formed the view that the actions of the council were at all times justified and displayed a degree of tolerance that is not often evidenced by responsible authorities when faced with such a clear disregard of statutory obligations. That is not to say that the respondents should be criticised in any way for their conduct and of course the Court recognised their entitlement to pursue such course as was open to them and it is not as if they were snubbing their nose at the law or at the council by taking the actions that they did.

12. An order for costs is not made for the purpose of punishing one or other of the parties for their actions. An order for costs, as the High Court has reinforced recently in Latoudis v Casey (1990) 170 CLR 534, is to compensate a party that has been successful for the expenses which it has incurred in conducting the litigation. It is only where exceptional circumstances are shown to exist that a successful party will be deprived of the benefit of that compensatory order. I am not satisfied that the actions of the council either prior to the commencement of the proceedings or its conduct during the proceedings was such that it should be deprived of the benefit of the exercise of the Court's discretion in its favour to award it the payment of its costs. Although the respondents may themselves feel that they have been hardly done by, nevertheless I hark back to what I said a moment ago, namely that the problem arose as a consequence of their own oversight, negligence, or whatever it was that caused them to be unaware of the provisions of the building approval upon which they acted and the trouble stems from that. As it turns out their efforts were in vain, thereby in a sense confirming that the council was justified in resolving as it did on 18 December 1996 to commence the proceedings.

13. For the reasons that I have outlined I am satisfied that the council is entitled to an order for costs.

14. The formal order of the Court is that the respondents pay the costs of the applicant in relation to the proceedings including the hearing today on the question of costs.

15. The exhibits may be returned.